The Law Handbook 2024

266 Section 4: Relationships, families and young people The FL Act gives priority to protecting children from harm over the benefit to the child in having a meaningful relationship with a parent. Where it is alleged that a child has been abused or is at risk of abuse or family violence, the court must consider whether interim or procedural orders should be made to obtain evidence about the allegations and to protect the child or any party to the proceedings. A litigant is prevented from personally cross- examining a witness in person, where the cross- examining party is the alleged perpetrator of family violence and the witness is the alleged victim (or vice versa). In such cases, the legislation requires the cross-examination to be conducted by a lawyer who is acting on behalf of the examining party. Funding for the lawyer is provided to each state legal aid organisation by the federal government. Parentage testing The FL Act sets out the circumstances when parentage is presumed for the purpose of bringing family law proceedings and the court has power to order a ‘parentage testing procedure’. Failure to take the test has no penalty but the court can draw inferences. The report on the test is admissible as evidence. Parentage testing procedures must be carried out according to the Family Law Regulations. Parentage testing must be undertaken by a laboratory that is accredited by the National Association of Testing Authorities, Australia. Status quo The status quo regarding who the child lives or spends time with often plays a very important part between the interim decision (pending the final hearing) and the final decision. Maintaining the status quo means continuing with the caring arrangements the child is currently in or allowing the child to continue living with the person with whom they have been residing. It should not be assumed, however, that at the interim hearing the court will maintain a child caring arrangement that had been in place prior to that hearing. The court is required to analyse and consider the existing arrangement in the light of legislation, and possibly the time spent by the child with each parent, so long as this can be regarded as being in their best interests. Is conduct relevant? In considering the child’s future welfare in the parent’s household, the court may take into account a person’s criminal actions and history, sexual behaviour, abuse of alcohol, illicit drug use, mental stability, moral beliefs or any other characteristic that could affect the way a child would be treated. The court considers who the child is living with and spending time with at the time of the application, the proposed living arrangements for the child and any other consideration that will be relevant to the happiness and wellbeing of the child. Thecourtwill focuson theparticular circumstances concerning each parent’s/carer’s current and past way of life and how this impacts the child. For example, if a party to the proceedings is living in another relationship, the court is likely to look closely at the nature of that relationship and at the nature of the child’s relationship with the person with whom the party is living. Wishes of the child A child’s expressed wishes are taken into account and the court may give such weight as it considers appropriate to the child’s wishes in all the circumstances, in particular taking into account the child’s age and maturity. There is no specific age at which a child may decide with which parent they wish to live. In considering the wishes of the child, the court will consider the information contained in the family report and the views of the independent children’s lawyer ( ‘ICL’ ). Independent children’s lawyer A child may have independent legal representation, known as an ICL. An ICL can be obtained by a court order made on the application of any person or organisation concerned with the welfare of the child or on the motion of the court itself. For proceedings brought in Victoria, the court may request that independent representation be arranged and funded by Victoria Legal Aid ( VLA ). The ICL has a duty to both the child and the court to ascertain what is in the best interests of the child. They do so by bringing evidence before the court from persons with expertise who may have had involvement with the child (e.g. teachers, doctors and mental health experts) as well as the family report normally prepared