Family Law Cases

One night stand impacts Child Support case

Thursday, July 01, 2010

Man pays child support for six years before DNA reveals he is not the father

An expensive Child Support case shows it is not always worth recovering funds even if they are overpaid or incorrectly paid.

The facts of Forsythe & Latimer & Anor [2010] FMCAfam 478 (8 June 2010)

A recent decision in the Federal Magistrate’s Court (8 June 2010) concerned an application by the Child Support payer who had made payments over a number of years unaware that he was not the father of the child at the time that he made payments of child support.

The recipient of the funds was in strained financial circumstances.  Although the father was determined not to be the father so for the purposes of this discussion he will be called the “payer”.  

The mother commenced a relationship with the payer in November 1997 which continued to June 1998.  They did not live together but they had a relationship which included sexual intercourse.

On an occasion in December 1997 the mother had a “one night stand” following an event at a pub.  She does not recall this man’s name nor have any of his contact details.  The child was born in late 1998 but the payer’s name was not recorded on his birth certificate until 11 January 2000.

After making private payments of child support, the payer then commenced paying through the Child Support Agency in October 2002.  After suspicions were raised by the payer’s sister as to the paternity of the child, the payer requested the mother permit a DNA test in or about March 2008.  Due to delays from the testing agency a conclusive report was not produced until 22 April 2009 which excluded the payer as being the biological father of the child.  After some delays the payer commenced proceedings in the Federal Magistrate’s Court seeking a declaration under the Child Support (Assessment) Act and seeking a repayment order under that Act.  

The entitlement of a party to “be repaid” is up to the Court who has an unfettered discretion as to whether or not to make the order in accordance with the criteria specified in Section 143(3) of the Child Support (Assessment) Act.  The relevant criteria is as follows:

(a)  whether the payee or the payer knew or suspected, or should reasonably have known or suspected, that the payer was not a parent of the child;
(b)  whether the payee or the payer engaged in any conduct (by act or omission) that directly or indirectly resulted in the application for administrative assessment of child support for the child being accepted by the Registrar;
(c)  whether there was any delay by the payer in applying under section 107 for a declaration once he or she knew, or should reasonably have known, that he or she was not a parent of the child;
(d)  whether there is any other child support that is, or may become, payable to the payee for the child by the person who is a parent of the child;
(e)  the relationship between the payer and the child;
(f)  the financial circumstances of the payee and the payer.

Comment from Mark Streeter Sydney Lawyer

Having regard to all the personal and particular circumstances of this case and the conduct of the parties, their financial circumstances and applying them to the criteria referred to above, the Federal Magistrate ruled that of the $39,090.57 claimed only $9,743.30 would be ordered to be paid and then made provision for these to paid by instalments over 18 months.

This was an extremely expensive case to run and this case involved 3 hearing days and written submissions. There is no way that costs would not have exceeded the sum recovered and accordingly the commerciality of recovery proceedings in this jurisdiction must be carefully weighed up!

What is Equal Shared Parental Responsibility

Tuesday, April 27, 2010

When you separate who makes the decisions about your children?

As a parent you have responsibility for your child. When couples divorce or separate deciding who looks after the child is determined by what is in their best interest. Equal Shared Parental Responsibility is one arrangement in what is usually referred to as child custody..

Parental responsibility in relation to a child is defined by s61B of the Family Law Act 1975 as “all the duties, powers, responsibilities, and authorities which, by law, parents have in relation to children.”

Parents automatically have parental responsibility for their children from birth. Unless there is a parenting dispute resulting in Orders of the Court, each parent will continue to have equal shared parental responsibility for the child following separation or divorce.

Parental responsibility and making decisions with regard to the day to day conduct of the child’s life are often confused. It is usual for the parent who is caring for that child, at any given time, to be responsible for decisions with regard to the day to day welfare of that child. An order for shared parental responsibility, or child custody, does not mean that the other parent must be consulted on every minor issue in a child’s life.

Parental responsibility is a responsibility to make decisions in relation to the long term issues in a child’s life such as where the child lives, what medical treatment they will receive, educational issues such as where they will attend school, the nature and degree of religious upbringing, the child’s name, passports, and the child’s social conduct and interaction.

Significant changes were brought about with the enactment of the Family Law Amendment (Shared Parental Responsibility) Act 2006 in July 2006(“The Amendment Act”). The Amendment Act saw a shift in the focus of the Court from the rights of parents; toward the rights of children and the responsibility of parents.

The Court must now apply a “rebuttable presumption” contained in s61D of the Family Law Act that it is in the best interests of children and parents to have a shared parental responsibility. This cannot be confused with the additional consideration of equal time. The presumption for equal shared parental responsibility is rebutted in circumstances whether there are reasonable grounds to believe that a parent of a child (or a person who lives with the parent of that child) has engaged in:
a) abuse of that child; or
b) family violence.

The Court will not make an order for equal share parental responsibility if they exercise their discretion that making that order would be contrary to the child’s best interest.

Orders relating to parental responsibility may be made on an interim basis in matters of urgency but the Court must disregard such an interim order when considering a final order to avoid prejudice against the other parent.

Social scientific studies have demonstrated that in situations where there is a high level of conflict between the parents, where consultation on significant issues relating to the child would place the other party or the child at risk of harm, it may be considered appropriate to award sole parental responsibility of the child to one parent.

Working out interstate child custody

Tuesday, April 06, 2010

High Court of Australia overturns Family Court decision

Parenting order to work out what's best for a child in an interstate child custody battle

The long term effects of divorce on children can be significant. One of the most contentious issues is child custody. This is especially important when parents wish to live in different cities, states or even countries. Courts are now required to make decisions in the best interest of a CHILD rather than their parents. Equal access for parents may not be in the best interests of a child if it is not reasonably practical. This case highlights how to allow equal access a mother needed to live in a caravan in Mt Isa and rely on social security. This was not seen to be in the child's best interest.

This recent decision in the High Court considered new provisions inserted into the Family Law Act 1975 (Cth) in 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Section 60B(1) explains:
 the best interests of children are met by ensuring that they have the benefit of having both their parents with a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child.

Section 60CA requires that the Court must regard the best interests of the child as the paramount consideration when deciding to make the particular parenting order in relation to the child. Considerations necessarily taken into account by the Court in determining what is the child’s best interests are listed in Section 60CC.

Section 65D(1) provides that the Court may make a parenting order it thinks proper but subject to the provisions of Section 61DA and Section 65DAB.

In this recent court case The High Court considered Section 65DAA which provides that:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents."

Section 65DAA(5) includes further items the Court must have regard to in deciding whether or not an order under Sub-Section(1) is “reasonably practicable”.  

Appeal to the High Court over child custody parenting order

The High Court considered this appeal following a decision in the Federal Magistrate’s Court on 1 April 2008.  The mother appealed the Federal Magistrate’s decision to the Full Family Court which dismissed her appeal by reasons for decision published 15 May 2009.  Special appeal was granted to the wife to appeal the High Court with orders pronounced on 3 December 2009 but reasons published 3 March 2010. 

The High Court overturned the decisions of the Full Court of the Family Court and that of the Federal Magistrate’s Court and remitted the matter for hearing “de novo” i.e. a complete re-hearing.

The facts: child custody between Mt Isa and Sydney

The parents lived in Sydney from 1993 to 2007.  In January 2007 they moved to Mount Isa to facilitate the father gaining work experience as a graduate mechanical engineer.  This was for an initial period for 2 years but by the time of the hearing in the Federal Magistrate’s Court and orders on 1 April 2008 it looked like the contract would be extended. 

The child was born in August 2002.  The parents separated in August 2007. 

Following separation the mother returned to Sydney to live with her father with the child.  Following the orders of the Federal Magistrate (which required the mother to live in Mt Isa to facilitate equal and shared parenting orders) the mother returned to Mt Isa.

The Parenting Orders made by the Federal Magistrate were that the child live with each parent on a ‘week about’ basis.  The Federal Magistrate had to determine two difficult and contradictory applications.  The first was that the mother live in Sydney with the child and the second was that the father live in Mt Isa and continue his work.

In considering the sections of 65DAA the High Court noted that the terms of this section are expressed in imperative terms.  The Court noted that it only when both questions are answered in the affirmative that consideration can be given under paragraph (C) for the making of an order.

The High Court did not consider the Federal Magistrate had considered the circumstances of the parties, particularly the circumstances of the mother in determining whether equal time parenting was reasonably practical.  The mother, in Mt Isa, was required to live in a caravan park and lived with child on alternate weeks.  Rental accommodation was scarce in Mt Isa and the mother could not afford good quality accommodation and was forced to be supported on social security benefits.

In Sydney the mother had both part-time and full-time opportunities with her previous employer which also allowed flexible hours.  In Mt Isa there was no reasonable casual or part-time employment opportunities for the mother.  The disparity of the incomes between the mother and the father were not addressed in the decision by the Federal Magistrate. 

The Family Consultant acknowledged that the mother was “definitely despondent”.  The Federal Magistrate made a finding that her anguish and depression could be dealt with by counselling – but this was found not to be supported on the evidence.

The High Court found that in the absence of a finding that an equal and shared parenting was “reasonably practical” the Court could not proceed to Subsection 3 and make an order for a child to spend equal time with each parent.

Accordingly the High Court overruled the lower Court’s decisions and remitted the matter for a fresh hearing.

Comment from Mark Streeter - Sydney Family Law Lawyer

This is an important decision in that it is the highest Court of the land considering the 2006 amendments, particularly in respect of the increased focus on “equal and shared” or alternatively substantial and significant time with each parent.

Each Family Law case is specifically limited to its own particular facts, however this decision of the High Court provides useful guidance on the importance on strict interpretation of the Family Law Act and ensuring that factual findings are made at each stage in the process to support the necessary orders under the subsections of the Act.

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