Monthly Archives: November 2012

Hundreds of parents banned from overseas travel over unpaid child support

on by

child-support-agencyTRAVEL bans on “deadbeat dads” and mothers who fail to pay child support have more than doubled in two years.

But the federal government’s reliance on “departure prohibition orders” to force parents to pay their debts has been rocked by a tribunal’s ruling to let a father move to Indonesia for a “better lifestyle”.

The Administrative Appeals Tribunal (AAT) lifted the travel ban this week – despite the man’s “appalling history” of paying maintenance for his child, who is now 33 years old.

The Child Support Registrar “grounded” 471 parents last financial year – up from 294 in 2010/11 and 183 the year before.

Parents paid $4.2m in overdue child support to have the bans lifted.

But the 1152 parents still on the list will be stopped by Customs or the Australian Federal Police if they try to leave Australia – even for a holiday or business trip.

One in four Australian parents has fallen behind in child support payments, with the federal government recovering $110m in debts last year by intercepting their tax refunds.

The Child Support Registrar imposed a travel ban on a Queensland man in 2007 to try to force him to pay $17,000 in child support and $35,000 in fines.

The registrar began deducting $22 per week from the man’s old age pension, but he still owes $14,668 in child support and $45,000 in fines.

The father, who is 68 years old but cannot be named to protect the identity of his child, appealed to the AAT on the grounds he is too old to work and wants to retire in Indonesia with his new partner, who is 59.

“He can live there, he says, more cheaply than he can in Australia,” AAT deputy president Philip Hack said in his judgment this week.

“He struggles to live on Centrelink payments in Australia.

“He has found it necessary to obtain advances from Centrelink to meet bills.

“(He argues that) it is desirable to revoke the departure prohibition order because to do so will improve his, and his spouse’s, quality of life.”

The registrar’s lawyer had warned the tribunal that lifting the travel ban would “reward” the father for his conduct and “send a message that if those obliged to pay child support ignored their obligations for long enough they could ultimately avoid paying them”.

But Mr Hack ruled that the right to stop an Australian citizen from travelling overseas at will was an “extraordinary power”.

“The evidence that (Mr X) presented made out his case that he and his spouse could enjoy a better lifestyle in Indonesia and repayments of the child support liability are being made, albeit slowly,” he ruled.

Department of Human Services general manager Hank Jongen said the government was deciding whether to appeal the decision in the Federal Court.

The National Council of Single Mothers and their Children said it was wrong to lift a travel ban for lifestyle reasons.

“Pay off your child support and then go and retire in the sunshine,” spokeswoman Terese Edwards said yesterday.

But the Men’s Rights Agency demanded the government abolish travel bans.

“They treat fathers worse than they treat criminals in this country,” director Sue Price said.

Fathers make up 86 per cent of parents paying child support.

Related Family Law Judgments

  • No items found in feed URL: http://www.familylawexpress.com.au/family-law-judgments/category/child-support/feed/rss. You requested 15 items.

    •  

    Who Gets to Spend Christmas Day with the Children?

    on by

    divorce-xmas-parenting-orders-disputesAS children line up to place their present orders with Santa, mums and dads will be putting in orders of their own – court orders on which parent will get to spend Christmas Day with the children.

    For some families it will be too late, with recently separated couples given until today to make their bid for Christmas and school holiday orders in the Family Court of Australia.

    Leading family lawyers have declared it a “tense” time for warring couples who split mid-year and face handovers of children in the often “heated” atmosphere of Christmas Day.

    “I have had people who have been at the airport and have not realised the other side have put the kids on the airport watch list and the federal police refuse to let them leave,” Family Law Practitioners Association president Deborah Awyzio said.

    “They ring me and say, ‘I have this order and I can’t leave’. There is an emergency judge sitting during the Christmas period and they do try to lift it quickly. People do miss their flight and if the other party doesn’t consent to lifting the order, it is bye-bye holiday.

    “It is not uncommon. When people start litigation they are all gung-ho and want to protect themselves, and once the emotions die down it is something that gets overlooked.”

    Expert staff at Australia’s 65 Family Relationship Centres are being “run off their feet” by couples attempting to mediate a Christmas plan after months of juggling shared custody arrangements.

    Family Law Pathways Network co-ordinator Maria Buglar said 530 staff, including federal magistrates, barristers, domestic violence workers and counsellors were currently juggling cases.

    The federally funded centres are a mandatory stop for separating couples on their way to settle Christmas orders as they need a “mediation certificate” to prove they tried to reach agreement. If the sides are split, they then head to court to let the judiciary decide.

    Mediation expert Peter Sheehy said the Christmas order rush was usually followed by post-Christmas disputes over “misinterpreted orders”.

    “It is stressful for families,” he said. “Both parents clearly want to spend time with their children over the Christmas-New Year break and the tensions are, ‘Do you split Christmas day?’.

    “The most common orders are alternate Christmas days and handover on Boxing Day.”

    “You see disputes sometimes when the orders are not clear. It might be ordered that the children are to go back on the Sunday two weeks before the start of the school year. But they might have changed to a private school.

    Family Law Section chairman Geoff Sinclair said the Howard government’s 2006 “shared parenting” amendments, giving 50-50 time to parents, coincided with a significant drop in Christmas order disputes.

    “A lot of parents want to split Christmas Day and older children make the transition easily, but for younger children it can be stressful. It can cause resentment between the parents if one parent has not had a lot of time throughout the year.”

    Family Law Section chairman Geoff Sinclair said the Howard government’s 2006 “shared parenting” amendments, giving 50-50 time to parents, coincided with a significant drop in Christmas order disputes.

    “There has definitely been an increase in the amount of time both parents are spending with their children compared to 10 years ago,” Mr Sinclair said.

    “Traditionally, dads were seeing their kids over half the weekends and half the school holidays in a year.”

    He said lawyers were “seeing a lot less fighting” because of “week about” and similar shared regimes.

    There was also more recognition of a “child’s right to enjoy Christmas” with both parents.

    “There is no general rule because every family is different,” he said.

    “It is better to have uninterrupted time with one parent so the children can enjoy their day.

    “When they are young, it is probably more appropriate to spend time with both parents on Christmas Day.”

    The Family Court of Australia urges parents to make their court applications sooner rather than later if they fail to reach a mediated agreement.

    Related Family Law Courts Decisions

    Pro bono burden reflects social gap

    on by

    Pro-Bono-Family-LawWE don’t expect Australia’s public health system to rely on doctors working for free. So why do we expect our legal safety net to rely on the goodwill of lawyers who do pro bono work?

    Pro bono, broadly speaking, is work done for free or without expectation of a fee, for the public good. The often poor reputation of lawyers belies their proud and long-standing commitment to this work.

    It’s easy to understand, in tight financial times, why governments look to pro bono to address the growing crisis in access to justice in Australia. Why not ask rich lawyers to do more?

    Leaving aside the ethics of justice relying on charity, the practical answer to this question is simple. Pro bono cannot meet the demand.

    There are too many who need a lawyer, but who fall into the widening gap between those who qualify for government-funded legal help and those who can afford a lawyer.

    There are gaping holes in Australia’s legal safety net.

    Community legal centres, legal aid commissions and indigenous legal services provide free services but, due to chronic underfunding, are unable to help many who need assistance with basic issues such as debt, employment, housing and relationship breakdown.

    Repeated inquiries have confirmed the severe access problems. Earlier this year, the Australia Institute conservatively estimated that about half a million Australians miss out on legal help every year, mainly for financial reasons.

    The Australian legal profession has one of the world’s strongest pro bono cultures. Recent survey results from the National Pro Bono Resource Centre and the National Association of Community Legal Centres highlight this.

    Pro bono work at 36 of the nation’s largest law firms equates to 191 lawyers working for free full-time for a year.

    Lawyers volunteering in community legal centres equate to about a further 134 lawyers a year. Lawyers in small firms and barristers also do significant amounts of pro bono work.

    More than 300 extra free lawyers is impressive, but to put that in context, there are about 60,000 lawyers in Australia. About 2000 lawyers work in community legal centres, legal aid commissions and indigenous legal services (some part-time).

    In addition, private lawyers conduct more than two million hours of legal-aid-funded work, equivalent to an extra 1190 full-time legal aid lawyers a year.

    Dig deeper and you find that most pro bono work by law firms is done for not-for-profit organisations, not individuals.

    This work is important and helps not-for-profits deliver essential services, but if our focus is on the justice gap for individuals, we can discount more than half of law firm pro bono work.

    Based on these figures, pro bono perhaps adds an extra 7 to 8 per cent to the capacity of free legal services assisting individuals who cannot afford a lawyer.

    This is vitally important, but no substitute for proper government funding to meet demand.

    This is acutely reflected in family law. If you need family law help but cannot afford $200 to $600 an hour for a private lawyer, where do you turn?

    Even if firms doubled the amount of their pro bono work, this would add only fractionally to the overall capacity of legal assistance services.

    The final factor is expertise. The reason many law firms concentrate pro bono practices in not-for-profits is because it’s a better fit for their expertise.

    This is acutely reflected in family law. If you need family law help but cannot afford $200 to $600 an hour for a private lawyer, where do you turn?

    Community legal centres provide free advice but typically don’t have the resources to provide ongoing help.

    Legal aid commissions will generally assist only if you have a poverty line income, few assets and the dispute relates only to children, not property.

    Pro bono, the last line of defence, is no real answer. The bulk of pro bono is done by firms without family law expertise.

    The survey results tracked the most common areas of law pro bono couldn’t assist with. Family law was at the top of the list.

    The result? About 30 per cent of people represent themselves in family law hearings.

    And you can bet that for every person representing themselves, there are many more simply giving up on their rights because it is too hard.

    About 30 per cent of people represent themselves in family law hearings.

    Many firms do have expertise in employment law, but again survey results are instructive.

    They show that while employment law is the No 1 area where pro bono is provided, it is second on the list behind family law for rejected applications for assistance. In other words, while there is expertise, there simply isn’t enough capacity.

    Again, this reflects the coalface experience of free legal services.

    The Victorian community legal centre Jobwatch advises more than 7000 people a year on employment law issues but misses about 55 per cent of calls due to inadequate funding.

    Pro bono lawyers make an important contribution to access to justice. Initiatives such as the Queensland, NSW and Victorian governments’ reforms to allow lawyers working in companies to do pro bono work, and the commonwealth and Victorian governments’ pro bono requirements for firms which tender to provide their legal services, should be commended.

    But we need perspective. Pro bono is only a small part of the solution.

    The size of the problem requires major government investment, nothing less.

    Hugh de Kretser is spokesman for www.communitylawaustralia.org.au, Fiona McLeay is the executive director of the Public Interest Law Clearing House Victoria and David Hillard is pro bono partner at Clayton Utz

    Custody battle sisters did not need own lawyer in court

    on by

    italian-father-and-4-abducted-sistersTHE High Court has rejected a claim four Italian-born sisters in an international custody battle should have had their own lawyers when the Family Court ordered their return to Italy.

    A full bench of five rejected the claim, brought by the girls’ maternal aunt, that the children were denied procedural fairness because their views were not sufficiently heard.

    It found the girls’ opinions — including their objections to going back to Italy — were canvassed by the court-appointed family consultant.

    “Contrary to the plaintiff’s central submission, resolution of questions about a child’s objection to return does not in every case require that the child or children concerned be separately represented by a lawyer,” said the full reasons published yesterday.

    “A universal proposition of that kind may be thought to assume, wrongly, that the child whose maturity is at issue in the proceeding can nonetheless instruct lawyers to advocate a particular position.”

    The girls, aged between nine and 15, were taken from their home on the Sunshine Coast early last month and returned to their father’s custody in Italy.

    The aunt was ordered to pay the costs of the father’s legal representation in the High Court.

    The Queensland family law case attracted international attention in May when the girls went into hiding instead of going back to Italy.

    The Family Court had ordered them to return last June under Australia’s obligations under the Hague convention on child abduction.

    Their mother brought the four sisters to the Sunshine Coast in 2010 for what she said was a four-week holiday. Yesterday, the father’s lawyer, Kevin Donnelly, said the girls were happy and well in their old home in Italy. “They’re all settled again,” he said.

    “The two younger girls settled straight away; the older two girls took a couple of weeks to settle down. They’re all back at school.”

    The mother did not comment.

    Family Law Practitioners Association president Deborah Awyzio said the decision reaffirmed the system was in place to protect and hear children in court matters.

    Related Family Law Judgments

    Parents must act to get school kids bonus

    on by

    schoolkids-bonus-children-in-schoolFOUR hundred thousand families must notify Centrelink in the next month if their child is starting primary school or moving to high school next year so they don’t miss out on the school kids bonus worth up to $820 per child.

    Under changes that came into effect this year, the bonus is now paid in two instalments in January and July to the parents of 1.3 million school-age children who qualify for Family Tax Benefit A.

    The bonus is worth $410 a year for a primary school child and $820 for a high school student.

    All families with school-aged children received the first payment in July this year.

    But parents who have children starting school for the first time next year and those whose kids are moving on to high school, where the payment is higher, must alert Centrelink.

    Problems occurred this year when the money went out on an age-related basis and without checking whether children were at school.

    Parents of pre-schoolers who had turned five were paid the bonus even though pre-schoolers are not eligible.

    High school students were paid the lower primary school payment of just $410 if they turned 12 after August.

    Primary school students, who had turned 12 before August, secured the high school payment of $820.

    Centrelink is sending reminder texts, emails and letters to families advising them to register their children so they can receive the money in mid-January in time for the start of the new school year.

    The quickest way for parents to notify Centrelink is to register the children online.

    However, parents without access to a computer can go in to a Centrelink office or telephone the government agency to register their children.

    The school kids bonus replaces the previous Education Tax Refund and families no longer have to keep receipts for school equipment to get the money which is paid automatically into parents’ bank accounts.

    Parents do not need to provide proof their child is enrolled at a school to claim the money, however they do have to tick a box to certify their child is attending school.

    Cheats run the risk of being caught out by an audit.

    Families and Community Services Minister Jenny Macklin said the bonus payment would be in January and “Christmas and January are a busy time for many families, so that’s why we want parents to update their details now before the silly season kicks in”.

    Parents who fail to meet the deadline will be able to register their children at a later date and get paid, but the money may not arrive in time to cover the purchase of school uniforms and other supplies before the school year starts.

    Families receiving Family Tax Benefit Part A, as well as young people in school receiving Youth Allowance, and others receiving certain income support or veterans payments are eligible for the bonus.

    To find out more about the bonus and other government payments you may be eligible for visit http://www.humanservices.gov.au/schoolkidsbonus

    Grandmother on the run with granddaughter, 4, amid claims of sexual abuse by girl’s father

    on by

    australian-child-abductionsA GRANDMOTHER has fled with her four-year-old granddaughter after a judge ordered the toddler live with her father despite claims the father sexually abused her.

    The western Sydney woman has led police and authorities on a month-long chase after going to ground and leaving no clues to their whereabouts.

    The pair vanished on October 8 when Family Court judge Justice David Collier awarded full custody of the child to the father, 34, following a bitter court dispute.

    The 55-year-old grandmother has until the next court date on November 13 to surrender the child before the court considers whether to issue an arrest warrant.

    The mother launched the custody battle in the belief the father sexually assaulted the child multiple times when she was under his care. He has denied the allegations.

    But the court action backfired horribly when Justice Collier instead took aim at the mother, finding she was motivated by hatred of the father.

    Officers have visited the 33-year-old mother’s house numerous times and seized items including her mobile phone and photos.

    Although the mother declined to comment to The Sunday Telegraph because the court case is ongoing, a source close to her said the decision had left her shattered.

    The source said the order meant parents were powerless to act if they suspected their children were being abused.

    “What would you expect a mother to do if she not only suspects – but believes she has evidence – that her daughter has been sexually assaulted in the father’s care?” the source said.

    “As a mother you could never sit back and do nothing.

    “She’s raised her concerns through the proper channels and all that’s happened is that she’s had her daughter taken off her.”

    The mother gave evidence to the court of at least 17 occasions where she believed their child allegedly showed signs, or was at risk, of being sexually abused.

    Judge Collier said the evidence did not prove the child had been sexually assaulted.

    The toddler was born after her parents had split up and has lived predominantly with the mother. The father spent supervised time with the girl.

    Justice Collier ordered the child live with the father and restricted the mother to having no contact in the first month, followed by supervised visits at a contact centre.

    Justice Collier said the mother’s allegations were motivated by an intense hatred of the father. After considering the evidence, he found there was not an “unacceptable risk of sexual abuse” from the father before awarding him full custody.

    The judge found that if the child stayed with the mother it was likely the woman would poison the child’s mind and make her hate her father.

    But before the girl could be handed over, the grandmother took the child and fled.

    Related Family Law Judgments

    Facebook Evidence in Divorce: Five Tips for Protecting Yourself

    on by

    Facebook-Marriage-Divorce-CourtMany solicitors and barristers who frequently attend the Australian Family Law Court buildings while representing their clients have been witnessing a silent but significant change in the type of evidence often relied upon by parties in family law disputes.

    This significance is not only represented in terms of volume, but in the indisputable nature of this evidence.

    Emails, SMS text messages and the ubiquitous Facebook have taken over the domain previously occupied by witness statements, paper based correspondence and he-said, she-said accounts. Unlike the latter, this new type of evidence is almost impossible to dispute, especially when it contains threats, boasts or other literal transgressions that are not open to favourable or alternative interpretation.

    Facebook in particular, given its poorly understood security features and the frequent public availability of what are often intended to be private, or limited publications, lends itself exceptionally well to the world of counter-argument and conclusive proof.

    A 2010 survey conducted by the American Academy of Matrimonial Lawyers (AAML) concluded that 81 percent of divorce lawyers had seen a huge increase in the use of social media as evidence — with Facebook topping the charts at 66 percent.

    In the more than two years since the disquieting AAML survey, Facebook has grown to 955 million monthly active users. Chances are your spouse and the friends and family of your spouse use Facebook. Following are five tips for Facebook use during your divorce.

    1. Consider everything you post to be public

    Consider everything you post on Facebook as public information. With one click of a button, your photos and comments can spread exponentially until it falls into your spouse’s hands and then into the court file. In addition, a court has the authority to order you to release deleted and private postings to your spouse.

    2. Do not post your party photos

    Flirting with new friends and enjoying a few drinks may be harmless activities as you transition into your single life, but photographic evidence of your partying can be damaging. Even innocent photos can be misconstrued and used against you by your spouse.

    3. Vent to your friends, not your Facebook page

    Although your spouse may really have cheated on you or behaved badly in other ways, Facebook is not the appropriate forum to vent your frustrations. Your angry tirades — no matter how justified — can be twisted to your spouse’s advantage.

    4. Resist boasting

    Along with divorce comes the freedom to buy and do what you want without asking your spouse’s permission. However, your purchase of a new boat, car or vacation home may diminish your argument that you cannot afford to pay financial support or that you need your spouse to pay you alimony.

    5. Update your privacy settings

    Facebook allows you to control how much information you share with the public. However, although updating your Facebook privacy settings can protect you, the adjustment does not guarantee your spouse will not get hold of your postings.

    Former Chief Justice Calls for Sterilisation Law Review

    on by

    Former-Chief-Justice-Alastair-Nicholson-Family-CourtCurrently, the Family Court or a state guardianship tribunal needs to sanction sterilisation of a disabled woman – although reports suggest many go unapproved.

    The former Chief Justice of the Family Court, Alistair Nicholson presided over many applications.

    Alistair Nicholson has told The World Today radio program that sterilisation should not be outlawed – but there should be criminal penalties for those who perform the practice without legal permission. Below is the transcription of his comments.

    ELEANOR HALL: Yesterday we reported on moves to end the coerced sterilisation of some women with disabilities. At the moment, the Family Court or a state guardianship tribunal needs to sanction any individual’s sterilisation.

    A former Chief Justice of the Family Court, Alistair Nicholson has presided over such applications and he told our reporter, Tom Nightingale, that sterilisation should not be outlawed:

    ALISTAIR NICHOLSON: There’s certainly been a problem over the years as I understand it of these operations being performed without court approval by doctors who either don’t know or ignore the requirements of the law and I don’t think that’s satisfactory in any way.

    TOM NIGHTINGALE: What’s your sense of why it isn’t a crime at the moment?

    ALISTAIR NICHOLSON: I think there is always a degree of inertia and I think sometimes these difficult areas tend to be avoided by politicians until they really have to do something about it.

    TOM NIGHTINGALE: Wouldn’t criminalising sterilisations and making it a criminal offence risk driving it further underground but not stopping it though?

    ALISTAIR NICHOLSON: Well, I doubt that. I mean this sort of operation is normally performed by a doctor and there is not many doctors who’ll run the risk of being prosecuted and possibly imprisoned for undergoing or undertaking a procedure that is not permitted by law.

    So I think it would largely solve the problem. I mean you might find an odd unscrupulous medical practitioner who breached the law but I think it is very unlikely.

    TOM NIGHTINGALE: There might be some parents who listen to that and there might be parents directly involved in an issue like this and who might think that is excessively intrusive on their lives and that they deserve the rights to make the decisions for this daughter with a disability who can’t.

    You know, they might be protecting an unborn child. What do you say to that point of view?

    ALISTAIR NICHOLSON: Look, I have the greatest sympathy for parents in this position and I know that there are a lot of parents who are very responsible and take these decisions very carefully and in fact the courts have always taken the parents’ views very much into account in making the decisions themselves but I think also the children do need protection.

    TOM NIGHTINGALE: Just why do you think it is so important that there is an independent step involved in this?

    ALISTAIR NICHOLSON: I think because, because of the emotional issues concerned and because parents, it is such an emotional issue that it is very hard for them to be objective anyway but should it be just a decision between the parents and the doctor?

    Doctors come in all forms again, some, most are extremely responsible but others perhaps aren’t and perhaps they may be driven by personal views, religious views and the like.

    So I think an independent assessment with the child’s interests as the primary object is essential to protect the child.

    TOM NIGHTINGALE: Would it be a crime on behalf of the doctor and/or the parents? What exactly would be the nature of what you’re proposing?

    ALISTAIR NICHOLSON: Well, I think the performance of the procedure would be the crime. I mean, it doesn’t matter, it could be discussed but my view is that would be, that would be the crime but of course parents who aided and abetted it would be guilty of an offence as well.

    ELEANOR HALL: And that’s the former Chief Justice of the Family Court, Alistair Nicholson speaking to Tom Nightingale.