Legal Research for: Memorandum of Advice Essay Example

  • Category:
    Law
  • Document type:
    Research Paper
  • Level:
    Undergraduate
  • Page:
    3
  • Words:
    2017

Legal Research: Memorandum of Advice

Lecturer

Introduction

Concerns about children custody is well captured in the legal systems of the country. This is as a result of increased child neglect and abuse that has been rampant in separated families. The territory and the state systems deal with children protection and are authorized to carry out intervention measures when children are at risks of being harm in the family territory. It is important to note that allegations about neglect, abuse and safety are raised in regard to row between separated parents on basic care of children1. Federal family law and children protection systems deal with such cases and in order to protect the children especially in cases where the parents have separated2. In some cases, separated parents have opted to settle child concerns through lawyers so as to avoid complex processes observed in courts. However, it has been observed that parents that rely on lawyers, courts an family relationship service system are affected by various issues which are related to children safety concerns, family violence, substance abuse and mental illness.

Family violence has continued to be a key contributor to the growing child neglect, fight over children and disagreement on who to be the child custodian. In the presented case, Sally, who is the child’s grandmother, is fighting to have custodian of her given that both her parents are having difference; in fact they are separated affecting the child. The father (Anthony) has taken Alice (the only child) to Italy and swore that she will never return to Australia. Janey, the child’s mother has been having finance problem after the separation and she is now connected to a crime that involved terrorist. Sally main worries is whether she can get back Alice from Italy, have custody of her and whether there terrorist charges that may be brought against Janey.

The Australian law protects grandparents who want to leave with their grandchildren despite the fact that the parents are separated. As such, Sally may use The Family Act to apply to a court for order so that she can have custody of the child. This Family Law Act recognizes the fact that there is a need for children to have a relationship with their grandparents despite the fact that the parents have separated. However, of important to note is the fact that this does not automatically guarantee the grandparents the right to have their grandchildren. Nevertheless, the Family Law Act spells out clearly that this is only possible for the interest of the child3. In other words, the focus of this act is mainly on the safety and protection 4of the child which may be through the parents or other concerned relatives, such as grandparents in this case.

The Children and Young Persons Care and Protection Act NSW is an Australian law that applies in the country if the Department of Family and Community Services- FACS consider it significant to intervene in order to protect a child from neglect or emotional abuse5. It is important to note that this law is separated from the family law6. FACS is a government child or young people protection agency and it also support families so that they are able to raise them accordingly. In addition, they remove children from parents when they analyze the situation and conclude that the children’s safety, wellbeing and health are at risk. Grandparents may get involved when FACS is making decisions about the safety of the child and who deciding who has the best interest of the child. In order to be involved din these decisions, the grandparents need to apply to be considered as a custodian through a court hearing.

As earlier noted, the concerned may not decide to head to court to contest for custodian of the child. The involved part, in this case, Anthony, Jane and Sally, may agree who should live with the child, spend time with and handle basic aspects of the child live. This may be done informally without going to court. However, it is important to note that these decisions are put into a well written agreement referred to as Parenting Plan. This plans set out different arrangements for the child. Still, the involved parties may make arrangements for the child by formally by writing up Consent Orders which are registered with the court. It is important to note that the grandparent should be confident that she will be able to take of the child despite the fact that the parents are fighting and therefore, continue to be separated. If the parents do not agree, which is highly likely in this case arrangements may be made that will result to the parties applying to the court; that is, Federal Court, Family Court or Local Court for Parental Orders7. The court will then decide on what to make basing their judging on the interests of the child. Parenting Orders basically deals with where the child will leave, who may spend it with the child, the person with parental responsibility and other aspects of the child including development, care and welfare. Notably, despite the fact that the grandmother, in the presented case has the right to apply court orders, it is not guaranteed that she will have custody of the child. This calls for legal advice before applying for the orders. As such, it is important to look at what the court will consider when making ruling for the best interests of the child.

Primarily, the Court will look at the need for the child to have protection, benefit of the child of getting a meaningful relationship from both parents. In addition, the Court will consider; child’s view which mainly depend on level of understanding, maturity and age; relationship of the child with both parents and other relatives including the grandmother; every parent ability and willingness to encourage and facilitate a continuing and close relationship of the child with other relatives; effect of the ongoing situation on the child; the desirability of making a ruling that is least likely raise another proceeding; every parent attitude towards parenting; family violence that may involve the child or member of the child’s family; existence of family violence order8; the sex, maturity, background and lifestyle of the parents and the child; the practical expenses and difficulties that are involved in communicating and spending time with the parents and the capacity of the guardian to provide for the needs of the child and in this case as a grandmother it may include financial, age and health circumstances9.

Sally is also concerned whether there is a way that Alice may be brought to Australia from Italy. In deciding on this, it is important to note that there are laws in the country which govern the issue of pass porting children under the age of 18. These laws are well designed to protect a child form abduction thus safeguarding people who have parental responsibility for the child10. With this in mind, there is a need to first establish whether Anthony, used the right way to obtain a passport for Alice. According to the Australian Passports Act 2005 before any passport is issued to a child, there should be a written consent of all relevant people who have parental responsibility over the child11. Notably, in most cases, the parent of the child, who are named on the child’s birth certificates are the main party who have parental responsibility and this can only be removed by the Court12. However, it is important to note that there is no guarantee that a person may be issued with a child’s passport. A passport may not be issued unless there is establishment of special circumstances; the Court permits the child to travel and the standards set in section 11 of Australian Passports Act 2005 are met. With the above understanding, it is important to consider whether Anthony followed the above laws to obtain a passport for Alice. This will assist in establishing whether Janey was involved in the procedure, which is unlikely. It is therefore, important for the Sally to get a court order13 that will assist in getting Alice back given that the mother was not informed of the travels despite the fact that she was expected to have given a written consent.

Given that Australia has played a leading role in combating terrorism, it has therefore, developed laws aimed at combating terrorism. The government has introduced extensive legislative regime around national security and counter terrorism. Some of the national security legislation that are related to the presented case include; The Australian Security Intelligence Organization Legislation Amendment Act 2003 which empower the appropriate intelligence authority to get a warrant to arrest and detain someone who is considered to have information concerning terrorist activity; The Criminal Code Amendment- Suppression of Terrorist Bombing Act 2002 which modifies the Criminal Code Act 1995 that considers it an offence to place lethal devices such as bombs in various prescribed areas with intention of causing harm or death and extensive damage that will result to economic loss; The Suppression of the Financing Terrorism Act 2002 which amends the Extradition Act 1988, Criminal Code Act 1995, the Charter of the United Nations Act 1945, the Mutual Assistance in Criminal matter Act 1987 and the Financial Transactions Reports Act 1998. The amendments introduces a new offence that target people who collect or provide funds and are irresponsible as to whether the funds will facilitate a terrorist attack or other initiative. With the understanding of the above laws regarding terrorism in Australia, it is highly possible that Janey may be charged under the Suppression of the Financing Terrorism Act 2002. This is attributed to the fact that due to her naivety and desperate situation, she readily agreed to leave a bag outside Parliament House. She collected fund which facilitated terror attack in a prescribed place14.

In conclusion, there are various laws in Australia related to child protection and custody. This is attributed to the fact that the government is concerned about the safety and protection of children. As such, the establish laws aim at ensuring that the best interest of a child is critically considered. In the presented case, it is important that Sally gets a court order to contest for the child custody given that the situation at hand may not allow the involved parties to make informal decisions. In addition, she may apply for a court order that will bring back Alice to Australia. On the terrorism case, Janey may be charged for ignorance and reckless behavior in relation to the attack that took place in the Parliament House.

1
Sheehan R, Magistrates’ decision-making in child protection cases. (Ashgate, 2001

2
Holzer, P, & Bromfield, L, Australian legal definitions: When is a child in need of protection? (NCPC Resource Sheet). Melbourne: National Child Protection Clearinghouse, Australian Institute of Family Studies, 2010

3
Goode & Goode,[2006] FamCA 1346,

4
O’Donnell, Scott, D & Stanley, F, Child abuse and neglect: Is it time for a public health

approach? Australian and New Zealand Journal of Public Health, 32 (4), 325–330, 2008

5
Family Law Council, Family law and child protection. Final report. Canberra: Attorney-General’s Department, 2009

8
Moloney, Smyth, B, Weston, R, Richardson, N, Qu, L., & Gray, M, Allegations of family violence and child abuse in family law children’s proceedings: A pre-reform exploratory study (Research Report No. 15). Melbourne: Australian Institute of Family Studies, 2007

9
Chisholm, R, Family Courts Violence Review . Canberra: Attorney-General’s Department, 2009

Allen Consulting Group, Protecting children: The Child Protection Outcomes Project. Melbourne: Victorian Department of Human Services, 2003

10 Cashmore, J. Parkinson, P, Weston, R., Patulny, R., Redmond, G., Qu, L., Baxter, J., Rajkovic, M., Sitek, T., & Katz, I, Shared care parenting arrangements since the 2006 family law reforms: Report to the Australian Government Attorney-General’s Department. Sydney: Social Policy Research Centre, University of New South Wales, 2010

11 Higgins, D, Cooperation and coordination: An evaluation of the Family Court of Australia’s Magellan case-management model Canberra: Family Court of Australia, 2007

12
Australian Passports Act 2005

14
Suppression of the Financing Terrorism Act 2002