Sometimes when parties separate and they have children, one or both of the parents may be required to spend supervised time with their children. This may be for a variety of reasons, primarily it is to ensure that children are not exposed to any form of risk.
When a Court has made final orders, it is almost impossible to change them unless there has been a significant change in circumstances as outlined in the leading case of Rice and Asplund (1979) FLC 90-725.
The question may be asked, what happens when a Court has made final orders for one of the parents to only spend supervised time with the children? Can the issues leading to the supervision be re-addressed and changed at a later time?
This issue was the subject of debate in the matter of Slater & Light [2013] FamCAFC 4. This was an appeal from the Federal Magistrates Court concerning a decision whereby a father was to spend supervised time with his children. It was determined at that time that the father posed an unacceptable risk of emotional harm to the children.
The problem for the father was that the orders provided that he could only have supervised visits with the children. There were no other orders for the father, whether he was rehabilitated or not. He was not to spend unsupervised time with the children.
On appeal, the Family Court had to determine whether the Federal Magistrate, had the intention that the orders were to be final with no prospects of changing them.
Whilst the Court found that the order for supervised time was justified in the circumstances, they did not agree that an indefinite supervision order was the correct outcome. The reason is that it did not allow the father the opportunity to apply to vary the orders due to the matters outlined in Rice and Asplund.
Further, the Court did concede that there had been a time delay between the initial hearing in 2011 and the time of the appeal. In that regard, they ordered a re-hearing of the matter with updated expert evidence about the time that the father should spend with the children.
If you need advice in relation to parenting orders, you should contact Everingham Solomons because we have the experience and expertise to assist you because Helping You is Our Business.
The above song title written by Louis Jordan, of course, is used in a different context when the question is asked in a legal proceeding. From biblical times it is told that Solomon was required to decide the parentage of a child and to the present time, disputes continue over parentage.
Thankfully, science can, in many cases, put the question beyond dispute, following the advent of DNA testing.
When a parentage of a child is at issue under family law proceedings, the Court may require a “parenting testing procedure” to be carried out to help in determining the parentage. Such an order may be made as follows:
at the request of a party to the proceedings;
at the request of a party representing a child;
at the Court’s own initiative.
A Court will not order parenting testing merely because it has been requested to do so. The applicant must show an honest and reasonable belief that there is doubt as to paternity. The Court will objectively assess the circumstances giving rise to the applicant’s belief.
In the case of FR (1992) 15 FAMLR 533 it was held :
“…there must be an honest, bona fide, and reasonable belief as to the doubt (in relation to the parentage). An objective test is not to be applied that evidence in such an application is seldom, (if ever) sufficient to enable the Court to make an objective conclusion.”
Should a party refuse to comply with an Order for parenting testing, the Court may draw such inferences from the failure to undergo testing as appears just in the circumstances.
At Everingham Solomons we have the expertise and experience to assist you with all legal matters associated with Family Law because Helping You is Our Business.
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As overseas travel becomes more accessible, so too does the possibility of love blossoming with someone who is a resident of a foreign country. As a result an Australian citizen may marry or form a serious relationship and the parties may choose to continue to reside outside Australia. If the parties have children, the question may arise “What happens if the relationship ends and one of the parties wants to return to Australia with the parties’ children?”
In a recent case that has been overwhelmingly publicised which involves four Italian children who had been detained in Australia is one such example. The facts of this case were the mother travelled to Italy when she was just 16 years of age on a study trip. At 17 the mother married an Italian man and they had four daughters to their marriage.
Their marriage ended in 2007. Orders in relation to the living arrangements for the children were made in the Italian Courts allowing for the children to live with the mother and to spend time with the father. The mother subsequently was living by herself with their children in a country with no members of her maternal family.
The mother travelled to Australia with the children and never returned to Italy. The father subsequently had to file an Application with the Court for the children to be returned. The mother’s evidence was that the father gave her permission to move back to Australia with the children to be with her family. The father maintained he did not ever agree to such suggestion.
After numerous applications by the mother to Australian Court to have the children remain living in Australia, the final judgment was delivered on 3 October 2012 by a Judge of the Family Court. Whilst His Honour was aware of the girls request to stay in Australia, the International obligations of the Hague Convention overruled that request.
This was not a decision that the children should live with their father, but a decision that the children should be returned to Italy so that the living arrangements of the children could be determined by the Italian Court system.
Australia is a signatory to the Hague Convention, which is an agreement with many countries outlining rules concerning what is required to be considered if a child is abducted from certain countries. Italy also is a signatory to the Hague Convention. Both countries need to abide by that Convention when a child has been wrongfully removed or abducted from their home country.
At Everingham Solomons we have the experience and expertise to assist you with all of your Family Law needs Helping You is Our Business.
The Family Court and the Federal Magistrates Court will be asked at times to make orders in relation to where a child should live and how much time they are to spend with the other parent. When these Courts make orders, the orders are based on the current circumstances that surround a child’s life. However, life is full of changes and sometimes, the orders that were previously made are not practical anymore.
What then will these Courts do if you want to change such orders?
The leading case on such matters is Rice v Asplund (1979) FCL 90-725 whereby Chief Justice Evatt said the Court “… should not lightly entertain an application … To do so would be to invite endless litigation for change is an ever present factor in human affairs … there must be evidence of a significant change in circumstances.”
Recently, in the case of Fante & Joyce (no.1) [2012] FMCAfam 741, Federal Magistrate Coker had to determine whether he should allow parents to change the orders that were made almost 4 years ago, taking into account what Chief Justice Evatt said in the case of Rice v Asplund.
The facts in Fante v Joyce were the orders were made in 2008. In these orders the mother was given sole parental responsibility for the child. The father’s new application sought for there to be joint parental responsibility as he felt he was excluded from important decision making. In 2008 there was evidence that there was extreme conflict and mistrust between the mother, her family and the father. This mistrust did not allow the Federal Magistrate to come to the view that sharing the parental responsibility between the parents would be in the child’s best interests.
Federal Magistrate Croker found that nothing had changed in the father’s circumstances to alter this view and stated “The parents still communicate appallingly with each other.” In that regard, the Federal Magistrate was not convinced that the father had met the rule in Rice v Asplund, that is there was not a significant change in circumstances, and did not grant leave for him to proceed with his application to change the orders.
If you have current children’s orders and you believe that there may have been a significant change in your circumstances in that the orders no longer work, you should seek legal advice from Everingham Solomons because we have the experience and expertise to assist you because Helping You is Our Business.
Recently the Local Court Magistrate was required to rule on whether a couple whose Islamic marriage included a contract that the husband pay his wife a $50,000 “deferred dowry” if he left her was enforceable.
The short facts were that the parties had married under Islamic Law in 2004. The man divorced his wife under Islamic Law by telling her during an argument “you are divorced”. The magistrate upheld the contract between the parties and found the contract was enforceable. The decision was appealed to the Supreme Court of New South Wales on a number of grounds.
These included:
the Magistrate did not have the jurisdiction, as it was a matter involving “Sharia Law”;
the agreement was not properly executed pursuant to the New South Wales Property (Relationships) Act; and
a further ground of appeal was that the contract (being the delayed payment of a dowry of $50,000) should not be enforceable as it was contrary to public policy.
In effect, it was argued the agreement was of certain “servitude”. The requirement to pay $50,000 if the husband initiated separation or divorce was to compel the husband to remain married. Also, it was argued that the payment was a penalty clause and was, therefore, void for illegality.
All these arguments were rejected by the Supreme Court of New South Wales and the magistrate’s decision was upheld. The New South Wales Supreme Court went on to refer to decisions in other countries where such contracts were upheld.
Finally, the Supreme Court noted there was no Australian case law on this matter where cultural or religious tradition is raised and that this question and issue would be referred to both the Commonwealth and New South Wales Law Reform Commission for review.
At Everingham Solomons we have the expertise and experience to assist you with all legal matters associated with Family Law because Helping You is Our Business.
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Relocation is a term used in family law proceedings when one parent wants to change where they live and take the children with them. For the Court to determine whether the children can move with that parent to a location sometimes hundreds of kilometers away from the other parent, the Court needs to consider many issues. One of the primary considerations that they take into account is whether the children can still continue to have a meaningful relationship with the other parent.
The recent decision of Lorreck & Watts [2012] FamCAFC 75 is one such case whereby the mother wanted to move from Canberra to Cairns and the Court had to determine whether this would be in the best interests of the children.
There were two children from the marriage aged 10 years and 5 years. The children lived with the mother and spent time with their father. Both the mother and father were born and raised in Queensland and their family and friends were still living there. The father was employed by the Australian Defence Force and throughout the course of the relationship the family moved many times to different locations across Australia.
When the marriage ended, the mother sought to move back to Cairns with the children to have the support of her family and friends. The father sought that the children live with him in Canberra should the mother move away.
At the first hearing of the matter, the Federal Magistrate confirmed that the mother’s case for moving was strong and there were many advantages for the children should they move. The only reason why the Federal Magistrate did not make Orders allowing the children to move was due to concerns that the youngest child would not be able to continue to have a meaningful relationship with the father.
The mother did not agree with this decision and sought a further hearing of the matter regarding evidence that was presented to the Court stating that the child would cope. The Court subsequently read the evidence of the psychologists and psychiatrists that was presented in the first case. After considering all of the evidence of the mother and the father, the Court determined that the Federal Magistrate had not taken this into account and subsequently permitted the children to move to Cairns.
If you wish to relocate or the other parent seeks to relocate you should seek legal advice from Everingham Solomons because we have the experience and expertise to assist you because Helping You is Our Business.
An application was made before the District Court of NSW in late 2011 to trace the name of the biological father with the name of a former lesbian partner of the birth mother.
This application was made by a former lesbian partner of the mother of a ten year old child. The former partner and the mother chose to have a child by artificial insemination. The mother and the former partner met the sperm donor via a newspaper advertisement. The mother was inseminated. A child was born thereafter. The sperm donor was registered on the child’s birth certificate. Indeed, the sperm donor had a close relationship with the child and contributed tens of thousands of dollars to the child’s welfare.
In 2008 NSW law was amended to permit two women whom had a child when in a relationship to have BOTH of their names placed on the Register of Births as parents of the child.
Because of this change to the law, the former lesbian partner sought to have her name replace the sperm donor’s name on the birth certificate. He opposed the application.
The Court held:-
Under the provisions of the Status of Children Act, the rebuttable presumption in the father’s favour, that he is a parent is displaced by the irrebuttable presumption that because the child was conceived through a fertilisation procedure he is presumed not to be the parent;
The clear words of the Births, Deaths & Marriages Registration Act shows only two people may be shown on the Register as the child’s parents.
The sperm donor (biological father) agreed that there was no contractual agreement prior to the birth that he would be on the Register when he agreed to donate the sperm.
Whilst there might be conflicting views within the community as to who should be registered as parents, the law is clear. The former partner was successful.
We have the experience and expertise to assist you with all your Family Law needs because Helping You is Our Business.
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When orders have been made by the Court in relation to the welfare of children and it is time to hand the children over to the other parent, what do you do when the child says “I don’t want to go”. Do you put the child back in the car or do you encourage the child to go?
This was addressed in the recent case of Raider and Raider [2011] by Justice Forrest. The facts of this case were the mother lived in Sydney with the two children, aged 13 and 11, and the father lived in Surfers Paradise, Queensland. The children were to spend time with the father during the school holidays and the mother was to give the father 28 days notice of when that was to occur.
The father alleged that the mother did not comply with the Orders because the children did not spend time with him over the holidays and he was not speaking to them on the telephone. The mother stated that they did not want to go nor speak to him.
Justice Forrest had to determine, in accordance with the Family Law Act, whether the mother had intentionally failed, or made no reasonable attempt to comply with those orders and if so, did she have a reasonable excuse.
To assist him in his determination, Justice Forrest relied on the Full Court’s decision of Stevenson v Hughes [1993] regarding the positive obligations to encourage access. He stated “They said that it is not a sufficient discharge … to say to the effect “you see, I tried, but the child does not want to go” and thereafter to figuratively fold their arms as if that were the end of the matter. They held that the custodial parent’s role is an active role with an obligation to positively encourage access.”
Justice Forrest determined that the mother had contravened three of the five allegations in that 1) she did not provide the father with the travel details 28 days prior, 2) she did not encourage the children to speak to their father on the telephone and 3) she provided the wrong days for the children to spend time with their father.
In relation to the last two allegations however, the Court found that the mother did have a reasonable excuse on the basis that the 13 year old boy had threatened self harm and it was in the childrens interest for them not to spend time with their father to protect their health and well being.
If you need assistance determining what is reasonable compliance of children’s orders you should seek legal advice from Everingham Solomons because we have the experience and expertise to assist you because Helping You is Our Business.
Not only are parents morally obligated to support their children we should be aware that there is also an obligation for parents to maintain their children in a financial sense. Human nature being what it is, some parents, will not comply with their obligations to support their children. Indeed, failure of a parent to pay maintenance towards a child has been a ongoing social problem. Various Acts of Parliament have been enacted in an attempt to enforce maintenance payments with only a limited amount of success.
It is believed that arrears have become more readily recoverable since the creation of the Government instrumentality, the Child Support Agency (“CSA”).
For any number of reasons, parents defaulting in child support obligations may seek to travel outside Australia. In appropriate cases, Departure Prohibition Orders (“DPOs”) may be used to stop parents with outstanding child support arrears from leaving Australia. DPOs are an effective way to collect outstanding child support. In the year 2008-9 the CSA recovered around $5 million of overdue child support by using DPOs.
A DPO is an administrative order and does not need the endorsement of a Court. The power to issue such orders may be delegated to certain senior CSA officers.
Whilst it is not appropriate to set out all the provisions of such law, in an article such as this, certain features should be noted. The CSA can make a DPO when four conditions are satisfied:
the relevant person has a child support liability;
the relevant person has not made satisfactory arrangements to hold discharge to liability;
CSA is satisfied that the person has persistently and without reasonable grounds failed to pay child support debt;
CSA believes it is desirable to make such an order to ensure that person does not leave Australia without wholly discharging the liability or making satisfactory arrangements to do so.
Awareness of these provisions may assist parents in enforcing payment when a child support liability has not been paid.
At Everingham Solomons we have the expertise and experience to assist you with all legal matters associated with Family Law, because Helping You is Our Business.
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In every family law property case there must be full and frank disclosure of all financial information.
The matter of disclosure and making informed decisions was raised in the recent case of Nyles & Nyles [2011] FamCA 565 whereby the husband sought to set aside Orders on the basis of the wife failing to disclose pertinent financial information.
The facts of the case were that the wife was a director and shareholder in a company which was possibly going to be placed on the public market. If this was to occur, the wife stood to receive significant financial gain. Despite this, the husband and wife entered into consent orders prior to the information relating to the public float being available.
The husband sought to have those Orders set aside on the basis that the wife failed to make full and frank disclosure and fraudulently misled him into entering into Consent Orders. The wife denied she did not make full disclosure and that she did not misrepresent the husband in relation to the float of the company.
The first question before the Family Court of Australia was whether the wife misrepresented her financial position to the husband. The Court found that the wife did engage in fraudulent conduct by failing to disclose updated financial information about the company float.
The next question before the Court was, did the husband who relied on the misrepresentation of the wife result in a miscarriage of justice enough for the Orders to be set aside?
The Court did not believe that the husband relied on the information that was provided to him by the wife to make his decision to enter into any agreements. At all material times, the husband was aware of the float and was provided with adequate legal advice.
This case illustrates two main points. Firstly, you must disclose all information particularly in the event that something material changes in your circumstances.
Secondly, you can make a decision prior to obtaining financial disclosure information, but it is not in your best interests to do so. The husband in this case may have been successful in his application had he waited for all information.
If you are considering separating or have separated and you need financial disclosure, you should seek legal advice from Everingham Solomons because we have the experience and expertise to assist you.
Sometimes when parties separate and they have children, one or both of the parents may be required to spend supervised time with their children. This may be for a variety of reasons, primarily it is to ensure that children are not exposed to any form of risk.
