Family Law Winter 2024

Family Law Winter 2024

Week 2

Tutorial Exercise: Best Interests and the Family Law Act Amendments.

Below, you will find a hypothetical question that asks you to advise a client, Yakub, about whether he might be able to obtain parenting orders for Caroline. Immediately after the question, you will find a response to the question, drafted based on the Family Law Act prior to 6 May, 2024.

In your tutorial groups, discuss how you would assess the best interests of Caroline differently, based on the redrafted Section 60CC after 6 May, 2024. Also discuss how the answer might be different in light of the removal of the presumption of equal shared parental responsibility.

Question:

Vu Ding and Yakub met in late 2016 through an online platform. Vu Ding had an independent sex work business and Yakub became a regular client. Yakub has been married to his wife Patime since 1996 and they have two adult daughters. Patime was unaware that Yakub was engaging sex workers. Yakub is an Australian citizen with Uighur heritage. Vu Ding is a Chinese citizen with Han Chinese heritage with permanent residency in Australia.

In early 2017, Yakub was seeing Vu Ding every week, and they were often having dinner out together. They both felt things were progressing beyond a client-worker relationship and started having time together out for dinner or at Vu Dings apartment. Yakub took Vu Ding to see his familys farm. One morning in mid-2017, they had a conversation over coffee:

Yakub: I really like you. I want to live with you. Every Monday, Wednesday and Friday when I finish my work at the market, I want to stay overnight at your apartment. So I want to be with you at least three times a week. Can you also quit your job at the massage parlour for me?

Vu Ding: I like you too. I want a family. But at present I have to work because I have to send money to family overseas and pay rent. Its my own business it has taken me years to get it all set up and working well.

Yakub: No problem. Every Monday, Wednesday and Friday I am running my market business and we have lots of cash sales. I have enough additional income to support you. I can give you $2000.00 each month for your mortgage and living costs. Ill take care of you, I promise.

Vu Ding: Okay. That can work. And I get to see lots more of you.

Yakub bought a couch and lounge chair for Vu Dings apartment, and Vu Ding gave him a key for the apartment though he always still texted first so that Vu Ding could let him in. Yakub visited every Monday, Wednesday and Friday, usually staying overnight. He did not contribute to any household chores at the apartment, and Vu Ding looked after all the maintenance tasks. Vu Ding stopped working as a sexworker, and started studying for a finance degree. Yakubs family and friends thought that he was busy with work and staying over at the warehouse after working late, and had no idea of his double life with Vu Ding. Vu Dings friends were aware that she now had a boyfriend but had never met Yakub, as they never socialized publicly together. When they went out, Yakub paid for things. Things settled into a comfortable routine.

On their nights together, Vu Ding & Yakub had conversations about having a child together. Yakub had undergone a vasectomy many years ago, after he and Patime had decided their family was complete. Yakub said, Its okay though we can do IVF still I can pay for it. Please, lets have a baby together! Vu Ding was excited and agreed. They presented at an IVF clinic as a couple, giving Vu Dings address, and went through a number of rounds of IVF. In early 2020 they were able to conceive using Yakubs sperm. Yakub covered all of Vu Dings medical costs, and transferred $10,000 to her account for nursery furniture and baby equipment. Vu Ding asked Yakub if he would like to come along to the twenty-week scan to see the babys development, but Yakub told her he was going to too busy with work that day.

A: I thought you wanted to start a family with me that means more than just paying for baby equipment, you know!

Yakub replied, Ive been upfront about what I can give in terms of my time and financially and I will stick by that. You cant keep asking more and more of me.

In mid-2020, Patime found some messages to Vu Ding on Yakubs phone, and he admitted to his wife that he had been seeing Vu Ding. His wife was angry and upset, and in order to settle things down he reduced the number of visits to Vu Ding to once or twice a week and didnt stay overnight. Vu Ding was frustrated and hurt. When Yakub did come to visit, things were tense.

In September 2020, when Vu Ding was about 36 weeks pregnant, Vu Ding and Yakub had a big argument sparked by Vu Ding asking Yakub to confirm that he could be there for the birth and in the week afterwards. Yakub stormed out and didnt come back.

As the time came closer for the baby to be born, Vu Ding made numerous attempts to contact Yakub, but he did not respond. Yakub was focusing on trying to save his marriage, and Patime had made it very clear that she wanted complete honesty and for their relationship to be exclusive. If he continued his liaison with Vu Ding, the marriage would be immediately over.

Without Yakubs cash contributions, Vu Ding faced a financial crisis and had to move in with her sister. Even when Vu Ding went into labour, Yakub did not respond, and Vu Ding gave birth to baby Caroline in October 2020 with her sister as support person. Vu Ding assumed that Yakub was no longer interested in parenting with her, and decided not to list Yakub on Carolines birth certificate.

After cutting off contact with Vu Ding, Yakubs marriage broke down, and he suffered a prolonged bout of severe depression, including being hospitalized for a time. In early 2022, with a combination of medication and therapy, he is recovering well and rebuilding his life. He listened to all the voice mails which Vu Ding had left him around the time baby Caroline was born, and he is keen to meet baby Caroline at long last. He finds out that Vu Ding has returned to work part-time in a licenced venue in the sexwork industry, and is concerned. He thinks it would be better for Caroline to come and live with him. Hed also like to connect Caroline with her Uighur community and language.

Vu Ding is still living with her sister, in Footscray, and is working a few evenings a week, when her sister takes care of Caroline and gives her a bottle of expressed breast milk. Caroline is healthy and happy and meeting all her developmental milestones. Vu Ding has a good relationship with her GP and maternal and child health nurse, and both feel that Vu Ding is managing her return to work well. At 16 months old, Caroline has a strong attachment with Vu Ding, and a good relationship with her auntie, but is wary with most other people.

Advise Yakub on whether he might be able to obtain parenting orders for Caroline to come and live with him.

Response:

On the facts, Yakub must first make a genuine effort to resolve the dispute using an FDR process (FLA s60I1). If this is unsuccessful, then Yakub would need to apply to the court.

Establishing Yakub and Vu Dungs De facto Relationship

Firstly, it must be established that Yakub and Vu Ding were in a De Facto relationship. Evidenced by the facts, Yakub and Vu Ding were not legally married (FLA s4AA(1)(a)), were not related by family (FLA s4AA(1)(b)) and were living together in Vu Dings apartment on a genuine domestic basis (FLA s4AA(1)(c)). Yakub could argue that staying 3 nights a week and having a key illustrates that they shared a common residence (FLA s4AA(2)(b)). Similarly, to the case of Jonah v White [2011], Yakub financially supported Vu Ding by paying her $2000 a month and paying for her medical bills. Yakub could also argue that deciding to have a baby together illustrated their mutual intention for a shared life (FLA s4AA(2)(f)). As this requirement is likely to be met, Yakub could utilize the Part VIIAB pathway to deal with their family law issues.

Establishing Legal Parentage:

To establish his legal parentage, Yakub can argue that although he is not stated on her birth certificate, he obtains parentage from assisted contraception (s60H). Yakub can argue that he is Carolines legal parent on the basis that Caroline was conceived via IVF (FLA s60H(b)) and he was Vu Dings de facto partner at the time (FLA s60H(1)). He can evidence this by distinguishing the facts from Groth v Banks [2013] and highlighting how he was in a de facto relationship with Vu Ding when the IVF treatment was conducted, therefore, establishing his legal parentage. Yakub can establish that the procedure was carried out by mutual consent by evidencing his attendance to appointments and purchasing baby equipment (FLA s60H(1)). Yakubs legal parentage of Caroline is likely to be established.

Three-stage legislative Pathway:

Since Yakub is likely to establish legal parentage, he may apply for a parenting order concerning Caroline (FLA s65(c)(a)). The case of Goode v Goode maps out a three-step pathway.

Best interests of a child assessment (FLA s60CC), with the objects and principles of Part VII (FLA s60B) informing the analysis.

When considering parenting orders for Caroline under the FLA, a court must consider the best interests of Caroline as the paramount consideration (FLA s60CA). Synonymous to Mazorski v Albright [2007], the court will use the twin pillars of primary considerations (FLA s60CC(2)) alongside additional considerations to establish Carolines best interests.

Primary Considerations (FLA s 60CC (2))

The benefit to the child of having a meaningful relationship with both the Childs parents

It is a paramount consideration for Caroline to have a meaningful relationship with both her parents. On the facts presented, it is clearly in Carolines best interests for the court to frame orders that ensure that Caroline will have a meaningful relationship with both her parents (McCall and Clark 2009). This meaningful relationship currently exists with Vu Ding as she has a close and significant relationship with her mother (Mccall v Clark (2009). However, this does not exist with Yakub.

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

When considering orders the court must give greater weight to the second consideration (FLA s60CC(2)(a)). Yakub could argue that Vu Dings career as a sex worker puts Caroline at a high magnitude of risk of abuse if the parenting time was permitted to her (M v M). However, Vu Ding could argue that whilst she has been working part-time, Caroline is thriving and meeting all her developmental stages according to health care professionals. To counter this, Yakub could argue that unlike in the case of m v m, he does not oppose any risks in his parenting time. He could further argue synonymous with the finding in Re W (Sex abuse) [2004], that it is in Carolines best interests to be safeguarded against possible abuse over an incorrect verdict that ruins a parent-child relationship. Vu Ding can counter-argue that the risks of her career are mitigated as she works in a licenced venue with appropriate safety measures in place. Finally, Vu ding can argue based on Keane v Keane [2021] that Yakubs concerns of possible future abuse should not be uncritically accepted and the court should not disregard Carolines beneficial relationship with Vu Ding.

Additional considerations (FLA s60CC(3))

Yakub has failed to take any opportunity to participate in Carolines life, evidenced by Yakubs absence to take part in the decision-making regarding Carolines life up to this point (FLA s60CC(3)(c)(i), has not spent any time with her (FLA s60CC(3)(c)(ii)) and has avoided communication with Caroline by avoiding Vu Ding since she was 36 months pregnant (FLA s60CC(3)(c)(iii)).

Yakub may argue that Vu Ding does not have the financial capacity to provide for Caroline, evidenced by Vu Dings past financial crisis, causing her to move in with her sister (FLA s60CC(3)(f)). However, Vu Ding can argue that she does have the financial capacity to provide as she is working again and is managing well according to professionals.

Yakub could argue that Carolines culture as a Uighur is a consideration that must be examined (FLA s 60CC(3)(g). He may also highlight how Caroline has the right to enjoy her culture with people of that culture, and this can only be implemented with Yakub in her life (FLA s60(B)(e)).

A determination of whether the presumption in favour of equal shares parental responsibility (ESPR) applies (FLA s61DA)

ESPR means both parents share long-term decision making about Carolines life including her living arrangements and culture. Given the above best interests and considerations examined, it would be likely that a court would apply the presumption of ESPR (FLA s61DA).

A determination of the appropriate care arrangements (FLA s65DAA)

Equal/Shared parenting time is not presumptive and therefore the court must consider whether spending equal time with each parent would be Carolines interests and is reasonably practicable (FLA s 65DAA(1)(a)). As evidenced by Yakub ignoring Vu Ding numerous phone calls, Yakub and Vu Ding do not communicate well, therefore an arrangement requiring a lot of communication and sharing may not be reasonably practicable (FLA s65DAA(5)(c)). Caroline is 16 months old, relies on proximity to her mother for feeding and has a close relationship with her mother, this would be disrupted extensively to meet the physical requirements of shared care (FLA s65DAA(5)(d). From these considerations, it is unlikely that equal shared time arrangements will be reasonably practicable and a substantial and significant time order could be more practical (FLA s65DAA(2)).

It is likely based on the considerations that the court would create a care arrangement that involves Yakub taking care of Caroline every other weekday, weekend and holiday (FLA s65DAA(3)(A)). This arrangement would allow Yakub the time necessary to be involved in Carolines daily routines like taking her to childcare. Being involved in Carolines life substantially would allow Yakub to build a meaningful relationship with Caroline.

Conclusion

On the balance, the court may find that it is in the best interests of Caroline to have an ESPR order in place, with substantial and significant time likely to be ordered with a split of around 80-20 in favour of Vu Ding.

Family Act, 2024 Amendments:

Part1Best interests of children

60CCHow a court determines what is in a childs best interests

Determining childs best interests

(1)Subject to subsection(4), in determining what is in the childs best interests, the court must:

(a)consider the matters set out in subsection(2); and

(b)if the child is an Aboriginal or Torres Strait Islander childalso consider the matters set out in subsection(3).

General considerations

(2)For the purposes of paragraph(1)(a), the court must consider the following matters:

(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

(i)the child; and

(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);

(b)any views expressed by the child;

(c)the developmental, psychological, emotional and cultural needs of the child;

(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the childs developmental, psychological, emotional and cultural needs;

(e)the benefit to the child of being able to have a relationship with the childs parents, and other people who are significant to the child, where it is safe to do so;

(f)anything else that is relevant to the particular circumstances of the child.

(2A)In considering the matters set out in paragraph(2)(a), the court must include consideration of:

(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and

(b)any family violence order that applies or has applied to the child or a member of the childs family.

Additional considerationsright to enjoy Aboriginal or Torres Strait Islander culture

(3)For the purposes of paragraph(1)(b), the court must consider the following matters:

(a)the childs right to enjoy the childs Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:

(i)to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and

(ii)to explore the full extent of that culture, consistent with the childs age and developmental level and the childs views; and

(iii)to develop a positive appreciation of that culture; and

(b)the likely impact any proposed parenting order under this Part will have on that right.

Consent orders

(4)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection(2) or (3).

16Sections61DA and 61DB

Repeal the sections, substitute:

61DAAEffect of parenting order that provides for joint decisionmaking about major longterm issues

(1)If a parenting order provides for joint decisionmaking by persons in relation to all or specified major longterm issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:

(a)to consult each other person in relation to each such decision; and

(b)to make a genuine effort to come to a joint decision.

(2)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

61DABNo need to consult on issues that are not major longterm issues

(1)If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:

(a)has parental responsibility for the child; or

(b)shares parental responsibility for the child with another person;

about decisions that are made in relation to the child during that time on issues that are not major longterm issues.

Note:This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major longterm issues.

(2)Subsection(1) applies subject to any provision to the contrary made by a parenting order.

24Sections65DAA, 65DAC and 65DAE

Repeal the sections.

LAW5AFL 2024

Australian Family Law

Memo Assignment

The memo assignment requires students to complete a response across two parts of a scenario. Part I is a legal problem, and Part II presents a question requiring critical analysis. The questions should be answered by drawing on the slides, the materials listed in the reading guide, the materials covered as part of tutorial activities, and the information provided in the question itself. You are not expected to do any additional research beyond these materials. The memo is worth 30% of your final grade.

Instructions

The memo is due Monday, July 8, 11.59 PM

This is an open-book exercise. You may not consult any materials prepared by other students or discuss the assignment with other students or any other person.

There is a word limit of 1350 words, with a 20% leeway permitted in excess. The word limit includes everything but the cover page, footnotes and bibliography. This means headings are included in the word count. Your argument should not be carried out in footnotes, so do not use this as a method of expanding the word limit. Be concise. The assignment is able to be completed to a very high quality well within the word count. There is also a suggested maximum word count for each Part of the assignment (Part I: 850 words, Part II: 500 words), but you are not mandated to adhere to this.

Referencing: students should follow the Australian Guide to Legal Citation, 4th edition, available at http://www.law.unimelb.edu.au/mulr/aglc. La Trobes short guide to the AGLC is available through the library at http://latrobe.libguides.com/law. Particular points I want to emphasise from past years include:

a. Use footnotes

b. Case names can be written in the text, but the rest of the reference should be in the footnote.

Use pinpoint references to paragraphs (or pages) as much as possible.

You should include a reference list or bibliography.

Reread the Guide to Clear Legal Writing available on the LMS and through the law Libguide: https://latrobe.libguides.com/law.

Include a cover page that clearly states your name and your student number. You must also accurately state the number of words of your answer on the cover sheet of your paper.

Submission

Your answers must be submitted via the Turnitin Link under the Assessment Tab on the LAW5AFL subject page on the LMS by the due date. Submit using the link titled Memo Submission under the subheading Memo (Assessment 2).

Extensions: You may apply for an extension by submitting a request up to 72 hours before the deadline through the LMS link (Under the Assessment Tab). I can approve extensions of up to 5 days. For longer extensions you will need to apply for special consideration.

I cannot approve any extension requests made directly to me by email.

Special Consideration

I encourage you to apply for an extension before the due date rather than applying for special consideration after the due date.

You may apply for special consideration through the special consideration website:

https://www.latrobe.edu.au/students/admin/forms/special-considerationSpecial consideration is specifically intended to support students who experience serious short-term, adverse and unforeseen circumstances that substantially affects their ability to complete an assessment task to the best of their potential.

For examples of the types of grounds that will be accepted for special consideration, and those that will not, see the following website:

https://www.latrobe.edu.au/students/admin/forms/special-consideration/allowable-reasonsIf your special consideration application is accepted you may be offered an alternative special assignment in the final exam period. University policy is that no mark adjustments may be offered.

Feedback

You will receive feedback through the rubric (detailed on the following page). There will also be a general feedback document along with examples of particularly strong submissions made available after results are released.

The anticipated return time is 5 working days after the deadline.

Assessment Criteria:

Note that the criteria for Part I and Part II differ.

Memos will be assessed on their: A B C Pass Fail

PART I Demonstrated knowledge of the relevant course material, including legislation Assessed in terms of: whether the answer provides relevant legal principles supported by the appropriate legal authority; Application of relevant law to the facts Assessed in terms of: whether and how well the answer identifies the relevant legal issues; how well the answer applies the law to the facts in order to provide the advice requested. Critical judgment Assessed in terms of: Whether answer accurately identifies the parties interests; whether the answer gives well-reasoned arguments and likely outcome. Quality of writing (citation, grammar, spelling, structure) Assessed in terms of: how well expressed and comprehensible the answer is; how well the answer is structured how well the answer uses scholarly conventions (citation, style of writing) PART II Critical analysis of the question Assessed in terms of: how well the answer addresses the question. An answer will not be satisfactory if it does not address the question asked; whether and how well the answer identifies the relevant policy or justice issues; Strength of argument (logical and persuasive writing) Assessed in terms of: whether and how well the answer makes an argument; the clarity and logical development of the reasoning and ideas provided in the answer. Quality of writing (citation, grammar, spelling, structure) Assessed in terms of: how well expressed and comprehensible the answer is; how well the answer is structured how well the answer uses scholarly conventions (citation, style of writing) 2024 Memo Question

PART I:

Oliver, a successful Australian actor aged 55 went on vacation to Portugal in October 2021. Renting a luxurious villa in the Algarve region, Oliver aimed to escape his hectic life. During his stay, he met Lena, a 24-year-old woman who worked as household help at the villa. Lena had very limited English language skills. Despite the language barrier, Lenas kindness and beauty captivated Oliver, and they developed a romantic bond.

Originally from a small village in Romania, Lena had moved to Portugal to find work and support her family back home. In the fortnight after they met, Lena confided in Oliver about the massive debt her family faced. Oliver listened carefully and assured Lena that everything would be fine and that he would take care of her and her family. He began to shower Lena with expensive gifts and took her on whirlwind weekend trips to Sicily and Casablanca.

In November 2021, a month after they met, Oliver invited Lena to a special dinner at one of the fanciest resorts in the region. Lena arrived to find her extended family gathered there. It transpired that Oliver had secretly arranged for all of them to be present for a big surprise. As they all sat down for dinner, Oliver proposed to Lena, once again promising that he would take care of her and her family in every possible way. Overwhelmed, Lena pretended to feel faint and excused herself to go to the bathroom. Her mother, sensing something was wrong, rushed in and asked Lena what was troubling her. I dont want to get married, I didnt think this was anything serious! exclaimed Lena. And I also dont want to leave home. Her mother shook her head and insisted that their family was in serious financial trouble and that this marriage was necessary to save them. She further pressured Lena by revealing that if she didn't go through with the marriage, her father might be murdered by loan sharks. Feeling trapped and pressured by her family's dire situation, Lena reluctantly agreed to the proposal. The following week, Lena had a conversation with Oliver where she once again asked if he would be able to help her family. He reassured her that he absolutely would.

The marriage ceremony took place in Australia in December 2021. Oliver's best friend, Arlen, enthusiastically offered to be their celebrant. Unbeknownst to Oliver and Lena, Arlen had done a dodgy internet certification course and was not formally certified to be a celebrant. As they settled into Olivers house after marriage, he informed Lena that he would be giving her a monthly allowance of $400. When she asked about her family, Oliver put off answering the question. He also began monitoring her spending, often criticizing her for unnecessary purchases. Two months later, he declared that he was unable to help her family in any manner, saying that things are rough in the business. When Lena informed her mother about this on the phone, her mother fainted from shock. Oliver soon began monitoring Lenas movements, and would get angry and irritable if she spent too much time away from the house.

Lena felt increasingly isolated and lonely, and decided she wanted to have a child. When she broached this conversation with Oliver on the 2nd of March 2022 he declared flatly that he had no interest in children. When she persisted, he informed her that he was infact unable to have children. But Im glad about that he tells her, because I simply dont want children. Determined in her quest for a child, Lena decided to take matters into her own hands. She had struck up a close friendship with Raphael, a barista at her local caf, and asked if he would be willing to be her sperm donor for an assisted conception. Raphael was open to the idea, but was very clear that he didnt want to be involved in the childs life. Im just doing this for you he told Lena.

The conception was successful in the first attempt. On the 10th of June 2022, Lena informed Oliver that she was pregnant via donated sperm. Oliver flew into a furious rage and threw her out of the house, yelling: Get out of my life you piece of trash!. Lena found refuge with some immigrant friends from Portugal who provided her with shelter and Raphael was able to help her get a job at another caf. The job allowed her to support herself and subsequently, her son Gabriel, who was born on February 1, 2023. Lena got fully absorbed in her responsibilities, and over the months lost all contact with Raphael. Oliver did not reach out to her at any point.

In August 2023, Lena met Darshan, an engineer who had moved from Nepal to Australia for work. They initially bonded over their shared experiences as immigrants and gradually fell in love. Darshan was supportive and understanding of Lena's past, and formed a close bond with Gabriel as well. By February 2024, Lena and Darshan were deeply in love and began discussing the possibility of marriage.

However, both Lena and Darshan were worried about the potential complications arising from Lenas previous marriage to Oliver and were hoping to find a way for her to avoid going through divorce proceedings. They were also concerned about whether Oliver might come back into their lives and assert his legal parentage in relation to Gabriel, complicating their future together. Seeking clarity and security for their future, Lena and Darshan decided to consult with a law firm to understand their rights and options.

Assignment Questions: PART I (suggested maximum 850 words)

You are an intern at the law firm. Draft a note addressing the two questions below separately. Provide a conclusion for each issue.

Advise Lena on whether she would be able to obtain a decree of nullity regarding her marriage to Oliver. You do not have to consider any issues relating to divorce. (14)

Discuss the legal parentage of Leo. You do not have to consider any issues relating to parenting responsibility or parenting orders. (6)

(20 marks)

PART II:

A few months later, Oliver re-enters Lenas life and asserts his parental rights in relation to Gabriel. Oliver and Lena undergo Family Dispute Resolution but are unable to resolve their differences. Your law firm is now assisting with Lenas parenting dispute before the Federal Circuit and Family Court of Australia. One of the junior lawyers, Alina Shah calls you into her office.

Ive just had a very rough first pass at drafting Lenas affidavit for a parenting order, she tells you. You mentioned the other day that you had recently studied Family Law and had done a module around affidavit drafting?

You nod.

Great! In that case, Id love to get your thoughts on the affidavit Ive drafted. Could you please have a look and tell me what you think works well and what could be improved?

Below is the draft of the Affidavit:

I, Lena Petrescu, of [insert address], [occupation], state on oath:

Introduction

1. My name is Lena Petrescu. I was born in Romania on April 20, 1997. I moved to Australia on December 2, 2021.

2. This affidavit is made in support of my application for a parenting order for my son, Gabriel, born on February 1, 2023.

Background and Relationship with Oliver

3. I met Oliver in October 2021 while working as household help in a villa in Portugal. Oliver proposed to me in November 2021, and we were married in Australia on December 10, 2021.

4. Oliver was extremely cruel to me. Six months after our marriage, Oliver informed me that he could not support my family in Romania as he had previously promised. This caused significant tension in our relationship. My mother who continues to live in Portugal is a very gentle woman but has on multiple occasions referred to him as um monstro (a monster).

Relationship Breakdown

5. On the 2nd of March 2022, I expressed my desire to have children. Oliver stated that neither did he want to have children, but that he was infact unable to have children. Despite this, I conceived Gabriel through assisted conception with the help of a sperm donor, Raphael Torres, in June 2022.

6. When I informed Oliver about the pregnancy later that week, he swore at me and threw me out of the house. Since then, I have been living with friends from Portugal who provided me with shelter and support.

Birth of Gabriel and Current Living Arrangements

7. Gabriel was born on 1 February 2023. Since his birth, I have been the primary caregiver, providing for his needs and ensuring his well-being.

8. I am currently living with my partner, Darshan Durbar, who has formed a close bond with Gabriel and supports us both emotionally and financially.

Olivers Re-entry and Family Dispute Resolution

9. In early 2024, Oliver re-entered my life and attempted to assert his parental rights over Gabriel. We attempted Family Dispute Resolution (FDR) to resolve our differences, but were unable to reach an agreement.

10. Oliver's actions have caused significant distress to me and have disrupted Gabriel's stable environment.

Parenting Arrangements and Best Interests of Gabriel

11. Gabriel has been living with me continuously since his birth. I have been responsible for his daily care, including his health, education, and overall well-being.

12. Gabriel has developed a strong emotional bond with me and Darshan. He is thriving in our care, and any disruption to this stable environment would be detrimental to his well-being.

13. Considering Gabriel's best interests, it is paramount that he remains in a stable and loving environment. Given our history of conflict and Oliver's unfitness to be a supportive parent, I believe it is in Gabriel's best interests to continue living with me. I recall how Oliver would prevent me from social contact when I lived with him in 2022. Olivers misanthropic tendencies would surely have a detrimental effect on Gabriel.

Conclusion

14. I request that the Court grant me sole parental responsibility for Gabriel, with Oliver having limited supervised visitation, considering Gabriel's best interests and the need for a stable and secure environment.

Assignment Question: PART II (suggested maximum 500 words)

Draft a short note for Alina, noting what elements of this affidavit work well, and what could be improved. Present your comments in the form of a series of numbered/ bullet points. Each point should be a clearly articulated comment that specifically explains to Alina what the affidavit has done well, or critiques an element of the affidavit. (10 marks)