Barrister-at-Law & Accredited Mediator

Category: Legislation

Shams & Alkaios (No 2) [2024] FedCFamC2F 620

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In this episode, I discuss the judgment of Judge Glass in Shams & Alkaios (No 2), which is the first published parenting case determined on the basis of the 2023 amendments to Part VII of the Family Law Act.

Overview

As everyone who has anything to do with family law knows, the parliament passed the Family Law Amendment Act 2023 last year, which had a particular focus on Part VII of the Family Law Act 1975.

Since the first Exposure Draft of the bill was released, there has been much discussion about the effects of the amendments.

I was on the record early with a view that the amendments were, for the most part, a simplification and rewording of the same concepts, aimed at making the provisions easier to understand for self-represented litigants, rather than a massive upheaval.  Whether I was right or wrong, my views will forever be freely available online to haunt me in a TEN Fireside Chat with Jacky Campbell.

The amendments took effect on 6 May 2024.  That day, Judge Glass of the Federal Circuit and Family Court of Australia (Division 2) in Melbourne commenced a 3-day parenting trial.  

No doubt many other judges did the same, but Judge Glass has the distinction of delivering the first published judgment applying the amended provisions.

His Honour delivered judgment in Shams & Alkaios (No 2) on 20 May 2024.

It was a fairly straightforward relocation matter where the children had been living with the father in Melbourne, and the mother sought a change of residence for the children to live with her in Queensland.

There’s nothing extraordinary about the facts of the case, but it is the first (and at the time of writing only) published decision based on the freshly amended Part VII.

So, how did Judge Glass consider and apply the new provisions?

Are there drastic impacts as a result of the new simplified objects of Part VII?  

Does the absence of a presumption in favour of equal shared parental responsibility mean that sole decision-making orders will be the new normal?

Have the section 60CC best-interests considerations changed everything?

Decision-Making

The first thing one sees when looking at the judgment is order 1, which reads:

The parties make joint decisions in relation to all major long-term issues in relation of the Children…

This is the new equivalent to the old order for equal shared parental responsibility, but in language which makes it absolutely clear that the order is about decision-making, and nothing else which might have been read into the term “parental responsibility”.

Of course, absent from the judgment is any discussion of a presumption, as none exists anymore.

Decision-making is now just another aspect of the discretionary assessment of best-interests considerations.

However, in determining the allocation of decision-making (after analysis of the best-interests considerations, which I discuss below), Judge Glass referred to the “encouragement” prescribed by section 61CA, which provides:

If it is safe to do so, and subject to any court orders, the parents of a child who is not yet 18 are encouraged: 

(a) to consult each other about major long-term issues in relation to the child; and 

(b) in doing so, to have regard to the best interests of the child as the paramount consideration. 

New s 60B – Objects of Part VII

Judge Glass noted that he was guided by the objects of Part VII, as found in section 60B, but did not otherwise refer to them.

Section 60CC Factors

The new section 60CC is much shorter and simpler than the old one.

The old language of protecting children from harm has been replaced by a focus on the safety of not only the child, but also the child’s carers.

Section 60CC(2)(a) – Arrangements which would promote the safety of the child and carers

Under this factor, Judge Glass traversed the history of the parenting arrangements, what his Honour termed as “generalised assertions” by the mother about the father in relation to abuse and controlling behaviour, allegations of physical violence, and other allegations of family violence.

His Honour also included in this part of the judgment discussion about what in this case was a lack of family violence orders.

On my reading, there was nothing novel in the discussion.  It encompassed the matters which his Honour would have discussed pursuant to the old s 60CC(2)(b) and 3(j) and (k).

His Honour was ultimately not satisfied that the father had caused harm to the children, and was therefore not satisfied that a change of residence was necessary to promote their safety.

Section 60CC(2)(b) – Views expressed by the child

In the familiar way, his Honour discussed the children’s views as relayed by the family consultant.

This is unsurprising, as the wording of the new s 60CC(2)(b) is a truncated version of the old s 60CC(3)(a).

Section 60CC(2)(c) – Developmental, psychological, emotional and cultural needs of the child

Here, his Honour’s discussion turned to the family consultant’s opinions about the care provided to the children in their primary residence, and the support the children received at home and school.

His Honour also referred to the family consultant’s evidence about potential emotional distress which would be occasioned on the children by a move from their familiar environment and community to a new life in Queensland.

Section 60CC(2)(d) – capacity of each person who has, or is proposed to have, parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs

Judge Glass’s discussion of this factor is reflective of the discussion one would have expected in relation to the old s 60CC(3)(f).

It has the usual themes of parental capacity and insight, child-focus and support of the children’s relationships with the other parent.

Section 60CC(2)(e) – Benefit to the child of being able to have a relationship with the child’s parents and other people who are significant to the child, where it is safe to do so

Here, his Honour considered the nature of the children’s relationships with each of the parents and other significant adults, ultimately determining that the children had strong and sound relationships with each parent, which could be sustained despite the geographical distances between them.

Having found earlier that there was no risk to safety, the last seven words of paragraph (e), being “where it is safe to do so” had no work to do in this case.

In the absence of safety concerns, the new s 60CC(2)(d) appears to reflect the old s 60CC(2)(a) and (3)(b), (c) and (d).

Section 60CC(2)(f) – Anything else relevant to the particular circumstances of the child

This new version of the old s 60CC(3)(m) catch-all provision.

His Honour did not discuss any relevant matters.

Conclusion

No doubt, we will see more and more judgments in the coming months, which will show us how various judges in all three Court – Division 1, Division 2, and Family Court of Western Australia, are applying the new provisions.  

In time, we will get further clarification from the Full Court and eventually the High Court.

Based on this first published judgment, though, it looks like we may all be able to relax a little bit about the amendments, as nothing much seems to have changed.  

Are communications with litigation funders privileged?

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In this episode, I discuss privilege issues related to litigation funders, and whether communications between litigation funders, lawyers, and parties, are subject to discovery or subpoenas.

Overview

It appears to be increasingly common that clients who have good prospects of obtaining a property settlement in a family law proceeding are unable to afford legal fees upfront.

At the same time, it is less and less common for lawyers to be prepared to run family law litigation on the promise of payment at the end of the matter.

Litigation funders are often the answer to filling that gap.  

Litigation funders assess the merits and prospects of a property case, necessarily with input from the client and the solicitors, and then agree to lend funds to cover the legal fees, typically with some security provided by the client.

The information sought by litigation funders from solicitors largely mirrors the sort of information which a solicitor might provide to a client when advising on the merits of their case.

When it comes to actually disbursing funds, the usual process is that the solicitors provide copies of their invoices to the litigation funder, and the funder pays the solicitors directly.  Those bills often contain detailed narrations which may reveal strategy or steps about to be taken by the client.

So what happens if the other party to the litigation demands discovery of communications with the litigation funder, or issues a subpoena to produce documents, directed to the litigation funder?

Litigation Privilege

Let’s first look at the law of litigation privilege.  

To avoid any confusion, I want to be clear that family law in Australia is a federal law, and so the Evidence Act 1995 (Cth) is the legislation which applies, rather than any state or territory Evidence Act.

Division 1 of Part 3.10 of the Evidence Act relates to Client Legal Privilege.  At common law, this concept is known as legal professional privilege.

Personally, I prefer the term client legal privilege, because the privilege belongs to the client, not to the legal practitioner.

Evidence Act s 119 relates to a particular kind of Client Legal Privilege known as litigation privilege.

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: 

  1. (a)  a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or 
  2. (b)  the contents of a confidential document (whether delivered or not) that was prepared; 

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party. 

For the purposes of this discussion, where we are talking about production of documents in an Australia family law proceeding, we are really just interest in 2 aspects of s 119:

  • whether the document in question is a confidential communication; and
  • whether the document was prepared for the dominant purpose of the client being provided with professional legal services.

Confidential Document

The term “confidential communication” is defined in s 117, which contains the definitions relevant to Division 1 of Part 3.10:

confidential communication means a communication made in such circumstances that, when it was made: 

(a) the person who made it; or 

(b) the person to whom it was made; 

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. 

 Lawyers are obviously under both legal and ethical confidentiality obligations.

But are documents prepared for the purpose of obtaining litigation funding prepared for the dominant purpose of the client being provided with professional services?

There are two leading Australian authorities on this issue, both decided in 2006:

In Rickard Constructions, Bergin J held that the dominant purpose of confidential communications with the litigation funder

was to ensure the overall capacity of the plaintiff to have funding and to ensure that such funding would be forthcoming for the continued funding of the litigation.

The Court concluded that the documents were privileged pursuant to s 119 of the Evidence Act 1995 (NSW), which is in identical terms to s 119 of the commonwealth Act.

Spotless was determined on the basis of common law legal professional privilege, as Victoria had not yet enacted its current Evidence Act (which largely mirrors the Commonwealth Act).  

Chernov J pointed out:

It is common ground that the original communication, namely, the legal advice that was provided to the respondent, was subject to legal professional privilege. And it was that communication — that advice — that was passed on to the third parties. That the re-communication was in written form is, as I have said, irrelevant to this issue. What is of relevance is that, on its proper characterisation, the communication that was made to the third parties, effectively by the respondent, was the legal advice which it had received and to which privilege attached.

In the family law arena, in the 2007 case of Blue & Blue [2007] FamCA 1444, Carmody J, after considering Rickard ConstructionsSpotless, and other authorities,  found not only that the litigation privilege applies to communications between solicitors and litigation funders, but also that the principle was “concomitant with public policy”, in that it was in the public interest for litigants to be able to access litigation funding.

So the answer is clear: communications with litigation funders are covered by client legal privilege.

Forum Disputes in Family Law

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In this episode, I discuss how forum disputes are determined in family law, and how the process can differ depending on the subject matter of the proceedings.

Overview

A forum dispute arises when two different Courts are asked to determine the same subject matter.

In the family law context, this generally means a forum dispute between the Federal Circuit and Family Court of Australia (Division 1 or Division 2), and a Court in another country.

Tests

Most Australian lawyers will be at least vaguely aware that the usual test to be applied to a forum dispute is whether the Australian Court is a clearly inappropriate forum.

We were taught a bit about that concept in law school.  We all have vague memories of authorities like Voth v Manildra Flour Mills.

However, like many other legal concepts, family law does things a bit differently.

Family Law Approach

In 1994, the High Court in ZP v PS, determined that the rule in Voth applied to all matrimonial proceeding except parenting matters.

Since then, the Full Court of the Family Court has repeatedly confirmed the approach to be taken in relation to forum disputes in family law.  

The correct test to be applied depends upon whether the forum dispute involves parenting issues. 

If parenting is in play, then it depends on whether the dispute is solely about parenting, or is about parenting amongst other matters.

In essence, if the forum dispute is solely about parenting, then the clearly inappropriate forum concept does not apply.  

In those cases, it is the usual question of the child’s best interests which will determine whether the parenting dispute is to be decided in Australia or in the other jurisdiction.

If the forum dispute involves issues other than parenting, then the clearly inappropriate forum test applies.

Interestingly, where more than parenting is involved, it is open to the Court to split the forum question, such that the forum dispute about parenting is determined separately on the basis of the child’s best interests, and the forum dispute about the balance of the issues is determined according to the clearly inappropriate forum test.

Best Interests

If the forum dispute is to be determined on the child’s best interests, those interests are assessed by the Court in the usual way.

Clearly Inappropriate Forum Test

If the clearly inappropriate forum test applies, there is guidance to be found in several Full Court decision as to what matters ought to be considered, in addition to the non-exhaustive list of considerations set out in Voth.

The matters to be addressed and considered with respect to each of the competing jurisdictions include:

  • Whether each competing Court has jurisdiction to deal with the dispute.  This is usually a given by the time the FCFCOA is asked to determine a forum dispute
  • Convenience, expense and location of witnesses.  If most of the relevant witnesses are in the foreign jurisdiction, then that would weigh in favour of Australia being a clearly inappropriate forum
  • Each party’s ability to participate in the proceedings (which can include things like language, and whether a person is required to personally attend the relevant Court)
  • Connection to jurisdictions, and issues upon which relief may depend
  • Whether each jurisdiction will recognise the other’s orders and decrees – this is an important factor when parenting is involved but the clearly inappropriate forum test applies, I’ll have more to say about this factor shortly
  •  Which forum may provide for effectively for a complete resolution of the parties’ controversy
  • The order in which competing proceedings were instituted, and costs which have been incurred
  • The governing law of the dispute
  • The place of residence of the parties
  • Availability of each forum, which includes issues like how long parties have to wait for a final hearing in each jurisdiction
  • Any legitimate juridical advantage to litigation in either jurisdiction

Recognition of orders by of other jurisdiction

The Full Court in the 2017 decision of Kent held on this point that:

If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue.

If the matter involves parenting issues, this can be determinative of the forum dispute, so it is essential to research whether an order of the competing foreign jurisdiction will be recognised in Australia.  

We need to look s 70G of the FLA provides for the registration of “overseas child orders”.

The term “overseas child order” is defined in s 4(1) of the Act.  It means “an order made by a court of a prescribed overseas jurisdiction that…”

So what does that mean? We turn to the Family Law Regulations 1984, at regulation 14.

Sub-regulation (a) points us to Schedule 1A, and says that each country, or part of a country, set out in column 2 of that schedule is a prescribed overseas jurisdiction.

If the country, or part of the country, in which the competing court sits is not there, then the overseas child order will not be recognised in Australia.

For financial matters, the question is less clear. There is no equivalent provision to section 70G in relation to overseas property Orders.

There is, however, authority in relation to enforcement of overseas property orders.  A recent example is the 2022 decision of the FCFCOA (Div 1) sitting the Apellate Jurisdiction in the case of Yadu and Orjit, where the Full Court held that the enforcement of an overseas property order fell within a matrimonial cause for the purposes of section 114(3).

In that case, the foreign Court had made orders about property in Australia.

In my experience, it can be necessary for parties to obtain Orders in both jurisdictions.  

For example, a few years ago I was involved in a matter where the parties had property in Australia and mainland China. The parties had never lived in Australia prior to separation.

After separation, the husband had removed something like three quarters of a million dollars in matrimonial funds from China to buy real property in Australia with his new partner.

A Court in China made Orders about property owned by the parties there, but declined to make Orders about Australian property. Subsequently, my client, the wife, who had never lived in Australia, applied for property adjustment order here.

My client adduced expert evidence from her Chinese lawyer as to the inability of the Chinese Court to deal with Australian property.

The Court in Australia determined that it was appropriate for it to deal with the adjustment of the Australian property. 

These are issues which, in my view, need to be investigated and assessed in each case and in relation to each jurisdiction.

In my view, the question of the recognition by each competing jurisdiction of the other’s decrees is not likely to be determinative in property-only proceedings.  

Family Law Amendment Bill 2023 – Initial Thoughts on proposed amendments to sections 60CC, 61DA and 65DAA

The Federal Government has published an Exposure Draft of the Family Law Amendment Bill 2023 (“Bill”).  

If enacted, the Bill would, amongst other things, significantly amend section 60CC of the Family Law Act 1975 (“Act”) (which section sets out the factors which the Court is required to consider when determining the best interests of a child).

The Bill would also repeal s 61DA (the presumption that it is in a child’s best interests for both of their parents to have equal shared parental responsibility), and section 65DAA (the requirement to consider making an order for equal time or substantial and significant time when the Court makes an order for equal shared parental responsibility).

Whilst I have not had time to fully consider those aspects of the Bill, I have spent a bit of time reading them and comparing them to what they would amend.

I have not yet taken the time to read the other parts of the Bill.

Section 60CC Amendments

Section 60CC sets out the factors which a Court must consider when determining the best interests of a child.

What does it say now?

In its current form, section 60CC is unwieldy.  

It contains two “primary considerations” and 14 “additional considerations” (including a catch-all factor which allows the Court to take into consideration whatever it considers appropriate), many of which overlap, many of which are not applicable to many families, but all of which the Court must consider when determining what Orders are in a child’s best interests.

One of the factors applies only if the child is an Aboriginal or Torres Strait Islander child: the child’s right to enjoy their Aboriginal or Torres Strait Islander culture, and the impact of any proposed parenting order on that right.   It is the 9th factor in the list of the 14 “additional considerations”.

Due to the overlap between many of them, I routinely group the section 60CC factors when making submissions in Court as follows:

  • the child’s relationships (4 overlapping factors);[1]
  • the risk of harm (3 overlapping factors);[2]
  • the child’s views;[3]
  • parental capacity, responsibility and involvement (4 overlapping factors);[4] and
  • orders least likely to lead to further proceedings.[5]

I note that the above list does not include the factor which applies only if the child is an Aboriginal or Torres Strait Islander child.  For whatever reasons, I have worked on very few matters where this factor was relevant, so it is not something I deal with routinely.

I have worked exclusively in family law for over 11 years (about half that time as a solicitor, and the other half as a barrister).  I find it better and easier to simplify the many factors into 5 essential categories (and, if I recall correctly, I lifted those categories from a judgment many years ago, so I am not the only one who does this).

I can only imagine how difficult it must be for self-represented litigants to understand, and engage with, s 60CC in its current form.

What would the Bill change?

The Bill would dramatically simplify s 60CC, with only 6 factors applying to all children.  

The existing factor which applies only if the child is an Aboriginal or Torres Strait Islander child remains in place, but is set out separately from the other factors, which will make it easier to find (and its existence more obvious) for cases where it’s relevant, and which will make it easier to skip where it doesn’t apply.

The generally applicable factors are:

  • what arrangements would best promote the safety of the child and each carer of the child;
  • the child’s views;
  • the developmental, psychological and emotional needs of the child;
  • the capacity of each proposed carer to provide for the child’s developmental, psychological and emotional needs, with particular regard to the willingness of the carer to seek assistance and support in relation to those matters;
  • the benefit to the child of maintaining relationships with both parents, and other people significant to the child where it is safe to do so; and
  • a catch-all.

Almost all of the existing factors are essentially covered (with the notable exception of a requirement in the Bill to expressly consider making orders least likely to lead to further proceedings), but the proposed wording is far simpler and more accessible.

There appears to be an increased focus on safety, but, in my opinion, the change is marginal.  The existing section already requires the Court, when weighing the two “primary considerations”, to give greater weight to the need to protect a child from harm than to the benefit to the child of having a meaningful relationship with each parent.  Same concept, different language.

My gut reaction

In essence, the approach to determining best interests would remain much the same, but the section would become much easier and simpler to understand and apply.

Given the horrific rate of family violence in Australia, any increase in focus on the safety of children and the adults in their lives (however small it may be) can only be a good thing.

On balance, these amendments seem pretty good to me.

Section 61DA Repealed

The Bill would repeal s 61DA.

What is s 61DA?

Section 61DA provides that, when making a parenting order, the Court must apply a presumption that it is in the child’s best interests for the parents of the child to have equal shared parental responsibility (“ESPR”).

The presumption does not apply when there are reasonable grounds to believe that a parent, or another person who lives with that parent, has committed child abuse or family violence.

The presumption can, in any case, be rebutted by evidence which satisfies the Court that it would not be in the child’s best interests for the parents to have ESPR.

Parental Responsibility and Confusion

We have a bit of jargon in Australian family law.  It seems to confuse a lot of people.  

The Act uses terms like “live with”, “spend time with” and “parental responsibility”.  In the general parlance, people in Australia are more likely, in my experience, to talk about “custody” and “access”, terms which are outmoded in Australian family law.

In my experience, with both clients and self-represented litigants, the meaning of parental responsibility is not immediately obvious to most non-lawyers.  Clients are often surprised to learn that parental responsibility relates to making decisions about children, but has nothing directly to do with where a child lives or with whom a child spends time (or when, or how often, or how long for).

However, a lot of lay-people seem to have heard or read about the presumption.  They may have googled family law, and read something about it in a Facebook group or forum, or perhaps even stumbled across s 61DA on AustLII and read it without context or an understanding of what the terms meant.

A great many people seem to be under the false impression that this presumption they’ve heard about means that, by default, the Court will order that a child will have equal time with each of their parents.

What’s the effect of repealing it?

To my mind, repealing s 61DA will have little effect on the majority of families.

The existence of the presumption means that there is a default position, and the evidentiary onus falls on the person who wants to deviate from the default.

The absence of the presumption just means that there is no default position.   It doesn’t mean that there is a different default position.  It doesn’t mean that, say, mothers will have sole parental responsibility by default.

It just means that the Court starts with a clean slate, assesses the evidence, and makes a finding as to what allocation of parental responsibility (whether between parents or other adults) is in the child’s best interests.

That is precisely what the Court does now anyway if there is anyone agitating to deviate from equal shared parental responsibility.

I expect that, in the vast majority of families going through separation, both parents will want ESPR, and the Court will continue to order it.

All that changes is that, when there is a dispute about allocation of parental responsibility, there isn’t a party (whether parent or otherwise) who bears a greater evidentiary onus than another party.

In other words, repealing s 61DA would just mean that, when there is a dispute about parental responsibility, each party will be required to adduce evidence in support of their position (which, in practice, happens in most cases already).

My gut reaction

This change will likely affect only a minority of cases before the Court.  In those cases, the outcome may be no different, as the presumption might be rebutted anyway.

The small shift in onus might just ever-so-slightly tip the scales of some power imbalances.  For example, a victim survivor of coercive control may have a slightly less difficult time in escaping further exercise of control by the other party by way of decision-making about a child.

The biggest benefit, to my mind, of repealing s 61DA would be an absence of a widely-held misconception that there is a presumption of equal time.

On balance, I think repealing s 61DA is not a bad idea.

Section 65DAA Repealed

The Bill would repeal s 65DAA.

What is s 65DAA?

Section 65DAA makes it mandatory for the Court to consider certain time arrangements for a child if the Court orders ESPR. 

In particular, where ESPR is ordered, the Court must consider whether an order for equal time is both in the child’s best interests and reasonably practicable.

If, after considering that option, the Court decides not to order equal time, it must then consider whether an order for the child to spend “substantial and significant time” with each parent is both in the child’s best interests and reasonably practicable.

It must consider those options even if no party to the proceeding seeks orders for equal time.

All of this is within the existing framework of the Court being required to make parenting Orders which are in the child’s best interests, and s 60CC setting out the factors to be taken into account in determining those best interests.

In other words, s 65DAA says to the Court something like “you must make Orders in the child’s best interests, and s 60CC tells you what to look at, but in exercising your discretion, you must at least think about these particular options, even if nobody is asking for them”.

My gut reaction

I’ve always found s 65DAA a bit weird.

If a party seeks an equal time arrangement, the Court will necessarily consider it.  If nobody seeks equal time, why should the Court spend time and resources considering such an arrangement?

The Court is required to make Orders in the child’s best interests.  

I’m pretty sure that if, after assessing evidence and hearing submissions about an equal-time arrangement, the Court finds that an equal time arrangement is in the child’s best interests, and that it is reasonably practicable, it will order it, whether or not some section of the Act specifically tells the Court to think about that option.

Conversely, if the Court finds that it’s not in the child’s best interests, or that it is not practicable, it won’t order it.  No amount of mandated consideration is going to change that.

The same goes for “substantial and significant time”.

I’m in favour of s 65DAA being repealed.


[1] s 60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents.

s 60CC(3)(b): The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child).

s 60CC(3)(c): The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.

s 60CC(3)(d): The likely effect of any changes in the child’s circumstance, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

[2] s 60CC(2)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

s 60CC(3)(j): Any family violence involving the child or a member of the child’s family.

s 60CC(3)(k):  If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order.

[3] s 60CC(3)(a): Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.

[4] s 60CC(3)(c): Extent to which each parent has taken, or failed to take, opportunities to participate in decision-making about, spend time with, and communicate with the child.

s 60CC(3)(f): The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs.

s 60CC(3)(ca): The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.

s 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

[5] s 60CC(3)(l).

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