Family relations

Contributed by Anna Copeland, Alexa Morcombe, Stephen Walker and Judith Kenny and current to 1 September 2005

PARENTS AND GUARDIANS

Broadly speaking, the law does not intervene between the parent and child unless the parent abuses, neglects or fails to maintain the child or cannot control him or her.

Both the parents of a child are guardians of the child: this means they both have a say in the long-term development of the child and are jointly entitled to custody in the absence of a contrary court order.

Parents (and guardians) have the right:

• to determine the child’s upbringing and education;
• to discipline the child;
• to consent to the child’s adoption in certain circumstances; and
• to take and defend legal proceedings on the child’s behalf (the court may require the appointment of a next friend, where the child is not capable of understanding or conducting the proceedings).

Parents (and guardians) have the duty to:

• maintain the child; and
• to send the child to school.

Step- parents may have a duty to maintain a step-child in certain circumstances.

Where there are disputes in relation to the guardianship and residence of, or contact with, children and the proceedings are commenced in the Family Court, the Court takes into account:

• that the best interests and welfare of the child are the paramount considerations;
• the wishes of the child, which are given the appropriate weight (depending on the age and maturity of the child);
• that the order made by the court should be an order least likely to lead to further proceedings; and
• other factors, such as the nature of the relationship between a child and parents, the effect of separation of the child from a parent, etc.

In Western Australia, the Family Court can make a guardianship, residency, contact or maintenance order on the application of any person who can establish that they have an interest in the welfare of the child. This can include the grandparents of the child.

The Court can order separate representation of a child in a Family Court proceeding if it thinks it is necessary. The separate representative is not strictly the child’s advocate, but represents to the Court the “best interest of the child.”

Children can also bring their own applications. In such a situation, the Family Court would assess the maturity of the child bringing the application, and the Court may appoint a separate representative for the child in these circumstances.

LEAVING HOME

A person over the age of 18 years can leave home whenever he or she wishes, but a person under the age of 18 years can face legal problems.

The age at which any particular young person under 18 will be allowed to leave home depends largely on whether, in so leaving, the Children’s Court will consider the young person to be uncontrolled or in need of care and protection. There is no definition of uncontrolled, though a

‘child in need of care and protection’ is defined in section 4 of the Child Welfare Act 1947 (WA). This definition will be repealed by section 28(2) of the new Children and Community Services Act 2004 (WA), once the latter Act has been proclaimed.

If a young person under 18 can properly support him or herself, has adequate housing, and is not ‘in moral danger’ or of committing or being likely to commit any crime, it is arguable that the young person could leave home. However, it would be difficult for a young person under school-leaving age to satisfy these conditions because of the following:

• Employment of children of compulsory school age (the end of the school year in which the child turns 15 years of age) that interferes with their schooling is unlawful. However, children can leave school at 14 years of age if an exemption from the Minister for Education permitting him or her to do so is obtained;
• Young people under 18 have to be in full-time education or training to get a Youth Allowance from Centrelink. In special circumstances, such as being homeless, ill, or unable to get a place in education or training, under 18s may be able to get an allowance. For a fuller explanation see SOCIAL SECURITY ENTITLEMENTS .

A child who is living away from home may apply to the Family Court for an order for someone to be appointed their guardian and for their parents to pay maintenance for them.

CORPORAL PUNISHMENT

A parent’s legal rights to control the behaviour or actions of a young person lessen as the young person’s age increases. The parent’s rights end if the young person marries before turning 18. If the young person remains single, the parent’s legal authority continues until the young person attains 18 years.

While a parent or guardian has the right to administer reasonable corporal punishment, such right cannot be without just cause or excuse. It is reasonable if it is a ‘proper’ method and is not excessive. While the child is at school, teachers generally have the same rights as parents. They are considered to be standing in the place of the parents (in loco parentis). However, corporal punishment is not allowed in any public school: for more information see the section titled ‘SCHOOL’ below.

In general, other adults have no right to punish another person’s child. If they do, they commit an assault, which is a criminal offence and also a civil wrong. The assault may give the child the right to claim either compensation in a civil court or Criminal Injuries Compensation.

MARRIAGE

The Commonwealth Marriage Act 1961 governs marriage. The marriageable age for males and females is 18 years and over. Marriage is not permitted where a party is already married or if the parties are in a prohibited relationship, for example, if they are brother and sister.

It is possible for a person under 18 years but aged 16 years or over, to marry, subject to the following:

• he or she must obtain an order of a Judge or Magistrate allowing him or her to marry. The Judge or Magistrate must be satisfied that there are exceptional or unusual circumstances. Pregnancy is not a guarantee of obtaining an order. The court may look at the degree of maturity, length of relationship, financial situation and degree of current independence. Once an order is made, it remains valid for three months.
• he or she must have the consent of a parent or guardian. The Marriage Act sets out who can give consent in a particular situation (such as for adopted children, where parents are divorced or dead etc).
• in certain circumstances, the requirements for the consent of a parent or guardian can be dispensed with or, where consent is refused, an application can be made to a Judge or Magistrate for consent to be given in the place of the consent of the parent or guardian. In the latter situation, the Magistrate will enquire whether consent has been unreasonably withheld, (for example, out of spite, or an insincere consideration of the problems). If the parent or guardian have unreasonably refused consent the Magistrate can make an order allowing the marriage. Under the Marriage Act, a Magistrate cannot hear an application for consent to the marriage unless a person has received marriage counselling from a marriage counsellor.

A person under the age of 16 years cannot be legally married.

SEXUAL RELATIONSHIPS

A person who is 16 years or older may have sexual relations with another person who is also 16 years or older. This includes both heterosexual and homosexual relationships. However, an offence is committed where:

• one party is in the care, supervision or authority of the other;
• one party knows that the other party is a ‘lineal relative’ or a ‘de facto child’;
• one party is an ‘incapable person’ because of a disability as set out in the WA Criminal Code.

It is an offence for any person to commit sexual acts with a child under 16 years of age, although there is a defence where the accused reasonably believed that the child was over the age of 16 years or can prove they were lawfully married to the child. See further in CRIME.
Note that consent is not a defence to these offences.

The Sexual Assault Referral Centre provides assistance to victims of sexual assault.