On 28 November 2011, Nine MSN reported that an Australian mother has been forced to pay her ex-husband almost $13,000 in previously paid child support after the father secretly had a DNA test done and confirmed that he was not the father of his 14 year old son.

In Court, the father stated that he had sought the DNA test because the mother herself had raised doubts about the child’s parentage since the child was four years old.

The father also had his own doubts about the boy’s parentage, due to catching the mother in a “compromising position” with a neighbour.

Since the man separated from the child’s mother in January 2009, he has had no contact with the teenager, who was born in 1995. Sadly, the Court heard that the teenager still regards the man as his father.

Federal Magistrate Scarlett said: “Effectively, he is now without a father, through no fault of his own”. She also said: “The Applicant’s desire to find out the truth about the child’s paternity will result in a financial benefit to him, at the expense of collateral damage to the child”.

If following separation, a father is asked to pay child support, he can seek to object to this on the grounds that he is not the biological father of the child.

In addition to secretly getting a DNA test done, some fathers seek an Order from the Court that a DNA test be done. The Court is not obliged to make this Order but must consider if allowing the DNA test is in the “best interests” of the child. However, often the Court finds it is in the child’s best interests to have paternity determined. However, this case raises the question of whether it actually is in the child’s bests interests for them to know who their biological parent is. As Federal Magistrate Scarlett has pointed out, this particular child is now essentially fatherless and will be financially disadvantaged due to having no child support payments.

At the same time, I can understand the point of view that some men may have, that they should not be asked to pay child support for a child that is not biologically theirs and they have a right to have this fact determined.

On the other hand though, fathers should be aware that if they are going to seek to have parental responsibility for a child, they can also be ordered to pay child support. With parental responsibility comes the responsibility to pay child support. However, for fathers that do not have a relationship with a child as was the case in this matter, having a DNA test to show this may be an attractive option.

If you have any further questions regarding child support, or DNA tests, please do not hesitate to contact our office.

There can be serious penalties imposed for a conviction of contempt, including imprisonment. In an appeal court case of Rossi & Commissioner of Police [2011], a mother was found to have knowingly contravened three parenting orders, after taking her child from school during the morning break and taking him to Adelaide. When police entered the premises, the boy was found hiding in a shower recess.
The mother had bleached his hair and her own which the Court found to be an attempt to avoid being detected. The Court found that the breaches were very serious and the mother was sentenced to imprisonment for six months. The Full Court found that the imprisonment sentence was not excessive having regard to the circumstances of the case and the need for general and specific deterrence.
If you want to file a charge of Contempt because a parenting order has been contravened, there are some important things to consider:
Contempt of court should only be alleged if the conduct complained of is serious enough. For example, if it is alleged that the contravention of an order involves a flagrant challenge to the Court’s authority or a serious disregard of the person’s obligations under an order.
In A Bank & Coleiro [2011] the Full Court stated that a fair hearing of the charge of contempt under s112AP requires the following ten steps to be taken by the Court:
1. First, set out the charge, which can be done orally or in writing. It is essential that the person understands the charge that is being laid.
2. Consider whether it is necessary to take the exceptional step of proceeding to hear the charge or whether the charge should then be adjourned, so it can be heard before another judicial officer.
3. To afford the person the opportunity to consider the charge and to adjourn for that purpose, if necessary.
4. To give the person the opportunity to state whether he or she pleads guilty or not guilty to the charge.
5. To determine whether the charge requires the person to be held in custody and to hear submissions on the issue.
6. In the event the person pleads not guilty, to give him or her the opportunity to present evidence and make submissions relevant to the defence and determination of the charge.
7. Having heard the defence, to determine the charge beyond reasonable doubt and, if established, convict the person.
8. To make an order for punishment if convicted, or discharge if not.
9. If sentencing, to have regard to relevant sentencing principles.
10. To give reasons for the decision to convict and sentence.\
It is important that a person charged with contempt is aware of the above steps and makes the appropriate applications, pleas and submissions.
We recommend that anyone who is served with or is contemplating filing an application for contempt obtain legal advice from a family law specialist, such as our family lawyers at Armstrong Legal.

In The Australian, demographer, Bernard Salt, provides an overview of various types of “tribes” in Australia in his article called “Taking The Emerging Tribes From The Bush To The Big Smoke” dated 13 October 2011.

In particular, Salt describes the “clump” which “describes usually young couples (can be gay or straight; my terms do not discriminate) who live together without necessarily declaring their future intent”. Salt says that the term stands for “Cohabitating Lovers Uncommitted to Marriage or Partnership” and that this group or phase is used to “fill the void that has developed between boyfriend and girlfriend in the late teenage years and finance, which tends to emerge in the late 20’s”. He says that this trend is even international as Germans describe such relationships as “lebensabschnitts partner”, which translates to “a partner for a section of your life”.

Salt may be correct in identifying that there are several people that drift into a relationship between the ages of 20 to 30 that is simply for a section of their life, but is not a life-time committed relationship. The difficulty is that under the current law in Australia, if you have lived with someone as a couple you will come under de facto legislation that views property division in the same way as if you were married. This may be particularly surprising to those who have purposefully not had children and have kept all their finances separate but have simply been living together for the relatively short period of two years.

Arguably, people who have drifted into these relationships and have lived together for two years should not be treated identically as those who have chosen to marry for life. This includes the Court considering not just the contributions (both financial and non financial) you may have each made but also considering both parties “future needs” in an identical way as if you were married.

Arguably, on the one hand I think there are some relationships where people have been living together so long and are in a committed relationship that is equivalent to marriage, however, it may also be unfair that people can simply fall into a “clump” relationship only to find that the law treats them the same as if they were married.

If you have been living with your partner and are wondering how your property is likely to be divided now that you are separated, please contact Armstrong Legal on (02) 9261 4555 for free over the phone advice.

Many parents don’t know that there are different methods for paying Child Support to the other parent. One method is “Private Collect”. This is where the parents transfer child support payments between themselves. You can choose the private collect payment method when there is a court order that is registered, a child support assessment has been issued and when a child support agreement has been accepted by the Child Support Agency.
It is astonishing to know that more than 62% of newly separated parents in 2008 chose to pay the other parent privately.  Parents chose this payment option if they were able to communicate with the other parent and because it provided them with flexibility.
If you choose the private payment method, from our experience, we would suggest that you put your payment arrangement in writing to the other parent. When you make cash payments to or receive cash payments from the other parent as child support, it is useful to keep written receipts to demonstrate that the payment was child support. It is also important to note that your child support payments may affect your family tax benefit. Therefore, if you keep written records of the child support payments you have paid and received from the other parent, this is useful i.e. if you are asked by the Family Assistance Office or any other government department or agency to provide this information.
Another method for paying and collecting child support is known as “Child Support Agency Collect.” This is when the Child Support Agency collects child support from the paying parent and transfers it to the receiving parent.  The Child Support Agency does not keep any of the money; they are just the vehicle that transfers the Child Support Payment from one parent to the other parent. It is useful to know that under this option, the paying parent can choose to make payments on a weekly, fortnightly or monthly basis.  The Child Support Agency makes payments to the receiving parent at a specific time. You can check when you are due to receive your Child Support payments by contacting the Child Support Agency directly.
A third payment method, known as “Non-Agency Payments,” is useful when parents want to make payments to a third party who is not a parent.  Examples of third party payments are school fees or child care expenses.  For example, when parent A (the receiving parent) wants parent B (the paying parent) to pay the child’s school fees directly to the school. In this situation, the school is the third party. It is essential to remember that parent B’s payment to the school will only amount to a non-agency third party payment if both parents agree that this payment was made in lieu of child support.
For legal advice relevant to your circumstances and information on child support or any other family law issue, please contact us on 02 6288 1100 to speak to one of our qualified and competent family lawyers.

As Adele says in her top selling song “Someone Like You”, “sometimes it lasts in love and sometimes it hurts instead.” While the solicitors at Armstrong Legal have expertise in the legal aspect of people’s separations, we understand that for clients, the emotional aspect of the separation is at least equally important. The reality is that almost everyone has had a failed relationship and we all know how painful and difficult it is. Lost love is a universal theme understood in any language in any culture in the world. This is partly why Adele’s song is so successful. It manages to capture a feeling that almost everyone has had at some point.

In an article published on the website of mediate.com, Kathleen O’Connell-Corcoran has written an interesting article which covers the psychological and emotional aspects of divorce and separation. The part of her extensive article which I find particularly interesting is the emotional stages of divorce and separation. She states that “Marriages do not break down overnight; the break-up is not the result of one incident; nor is the break-up the entire fault of one party. The emotional breaking up process typically extends over several years and is confounded by each party being at different stages in the emotional process, while at the same stage of the physical, (or legal) process”.

One technique which people may sometimes use to try and cope with the breakdown of a relationship is to create an over exaggerated distance from their former partner. They may often try to portray their former partner as really awful, or may seek vengeance. Kathleen O’Connell-Corcoran says, “When parties put their focus on getting even, there is an equal amount of energy expended on being blameless”.

Another method to try and rationalise the breakdown is to decide that the marriage was a wholly unpleasant experience and escaping it is good. Kathleen O’Connell-Corcoran is of the view that “Thinking that the marriage was wholly unpleasant is unfair to both parties and can hinder emotional healing. Both stayed in the marriage for as long as they did because there were some good things about it. There were also some things that did not work for them and this is why they are divorcing”.

While it can be difficult to take a more complicated view of your relationship with your former partner, than a black and white view in which they are demonised, Kathleen O’Connell-Corcoran is of the view that in the longer-term this will lead to a more healthy mental state. She also believes that people should take responsibility for the things they did well and the things that they did not do well in the relationship in order that they may learn from this and have better relationships in the future.

I also think that if people can take a more balanced view of their ex-spouse, this is likely to be of positive benefit for the children of the relationship, as it may be hurtful to them to know that mum or dad really hates the other parent. While in the short-term it may be tempting to simply demonise one’s ex-partner, in the longer-term, it is probably healthier to have a more holistic view of the relationship and accept the things that both people did well and not so well in the relationship. Kathleen O’Connell-Corcoran advises that “people healing will involve acceptance, focussing on the future, taking responsibility for their own actions (now and during the marriage) and acting with integrity”.

Interestingly, Kathleen O’Connell-Corcoran also makes the argument later in her article that the mediation process is more emotionally healthy, rather than the litigation process which aligns itself with an attitude of blame, highlighting everything that the other party did wrong. I think there may be some truth to this, however, in some cases litigation is appropriate. Ideally, although we are lawyers, if possible I think we should assist clients with processes that achieve the outcomes they want, but do not destroy the relationships any more than necessary along the way. In this regard, all of the solicitors at Armstrong Legal are collaboratively law trained. Collaborative law facilitates parties in resolving parenting and property matters in a way that does not create further animosity between them. Read more articles about collaborative law here and here.

However, I also think that in some circumstances, if one is dealing with another person who is not hearing their point of view and has unrealistic expectations, or is attempting to bully the other party, then litigation is necessary as the only way to deal with the situation.

If you are currently undergoing a separation from your previous partner and would like advice regarding possible next steps to resolve parenting and/or property issues, please do not hesitate to contact us at Armstrong Legal on (02) 9261 4555.

You and your partner are facing the prospect of separation. You feel obligated to attend couple counselling before you make the final decision to separate. In what circumstances must you attend couple counselling? Is couple counselling confidential?
Under the family law legislation, the only circumstance that requires couple counselling is where married couples have been married for two years or less and wish to apply for a divorce. If you fall into this category, then along with the Application for Divorce (which can only be filed after you have been separated for 12 months), you must also file a Counselling Certificate or file an Affidavit seeking the Court’s permission to apply for a divorce explaining the reason why you have not attended counselling (eg the other party cannot be located or there is a history of family violence or abuse).
People who have been married for more than two years are not required to attend couple counselling before filing for divorce. However, all legal practitioners (and other specified people working with families) must provide separating couples with information about reconciliation. In most cases we do recommend that couples attend counselling before making the final decision to separate.
Couple counselling is generally confidential, however Section 10D of the Family Law Act requires or authorises disclosures of communications made in counselling in the following circumstances:
1. If the counsellor reasonably believes the disclosure is necessary for the purpose of complying with a law (eg compliance with a Subpoena);
2. If consent to the disclosure is given;
3. If the counsellor reasonably believes that the disclosure is necessary for the purpose of:
(a) protecting a child from the risk of harm (whether physical or psychological); or
(b) preventing or lessening a serious and imminent threat to the life or health of a person;
(c) reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person; or
(d) preventing or lessening a serious and imminent threat to the property of a person; or
(e) reporting the commission, or preventing the likely commission, of an offence involving intentional damage to property of a person or a threat of damage to property; or
(f) if a lawyer independently represents a child’s interests – assisting the lawyer to do so properly.
4. In order to provide information (other than personal information) for research relevant to families.
In a recent case of Uniting Care – Unifam Counselling & Mediation & Harkiss [2011] (http://www.austlii.edu.au/au/cases/cth/FamCAFC/2011/159.html) the extent of confidentiality in couple counselling was explored.
The Court found that the counsellor could not be compelled to produce the counselling records irrespective of the consent of the parties.
Evidence of anything said or admissions made during counselling is not admissible in any court or proceeding unless there is an admission or disclosure by an adult or a child that indicates that a child has been abused or is at risk of abuse, unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources (see section 10E).
At Armstrong Legal, we have an approved panel of recommended couple counsellors. If you would like a referral to a couple counsellor within your area or further information about family law, please do not hesitate to contact us.

An article published in the Australian and written by Carolyn Overington on 24 November 2011, reports on a recent Queensland case in which the full bench of the Family Court found that shared care was not appropriate in relation to a five year old girl.

Allegations of violence and emotional abuse were made by both parents, however the Court found that given the “hatred” between the parties, any form of co-parenting would not be practical or workable. The Court found that the child’s mother would “destroy” any relationship the girl had with her father rather than agree to shared care.

This finding is surprising in light of the fact that the Court also found that the child enjoyed spending time with the father and the daughter “would be distressed and that the loss of the girl’s relationship with her father” would be emotionally damaging in the short-term and also possibly in the long-term.

The decision appeared to be about choosing between the lesser of two evils, as the Court found that despite this, the loss of the child’s relationship with the father would be less harmful than the loss of her relationship with her mother. The Court found that the child could not spend time with both parents.

In a way, I cannot help but think that this decision suggests that if a parent is unreasonably obstructive of the child’s relationship with the other parent, this shows that this can be a successful strategy for them in preventing the other parent from spending time with the child. However, the Court says that the decision should not be seen as “condoning the mother’s conduct”.

Although the article says that the decision suggests that shared care is dead, in a way shared care was never the overall goal of the Family Court at the expense of the child’s best interests. The legislation has always clearly stated that the Court is to make Orders in the best interests of the child. However, the current legislation states that the Court must, in the absence of any threat of risk of harm to a child, consider if equal shared parental responsibility is in the best interests of the child. Thus, it has never been the case that shared care must always apply.

However, this certainly does seem to be a move away from what was achieved by Men’s rights lobby groups and in some sense, the decision could be seen as functioning to reward manipulative parents (of either gender) who obstruct the relationship between the other parent and the child.

However the Court did emphasise that “termination of the child’s relationship with one of her parents is of course, a last resort”.

This decision actually makes me feel genuinely sad for the child because it shows how parents themselves do not always consider the best interests of the child. In some cases they are so blinded by their hate for each other, that the Court may be right in finding that it is simply not possible for co-parenting to work. While I do not doubt that such parents of course love their children, they are not able to see past their hatred for their ex-partner and appreciate the fact that the child may still enjoy spending time with them. The child is forced to be deprived of one relationship with one of their parents.

This case may show that there is important non-legal work to be done surrounding the breakdown of a relationship such as family counselling.

If you or someone you know is currently seeking access to their child following a separation, we may be able to assist you at Armstrong Legal. Please contact us on (02) 9261 4555.

Have you ever wanted to change your child’s surname or wanted your child to have a hyphenated surname, for example, “Smith-Jones”?
What can you do if you do not agree with the child’s other parent about a particular surname? You may be surprised to learn that people do raise this as an issue in family law litigation.
It is important to bear in mind that litigation should always be a last resort, only resorted to once your attempts to reach agreement outside court have failed.
Often, parents will raise the issue of their child’s surname when they are litigating in court at the same time as they raise other issues, for example who the child lives with and the amount of time that the child spends time with the other parent (the parent that they are not living with).
For legal advice from our experienced team of family lawyers about this topic and any other family law issue, please do not hesitate to contact us to arrange a without-obligation first conference.

In the recent case of Cappetto & Cappetto No.3 [2011] FamCA 345, his Honourable Justice Watts made findings about what parent the children should live with. The children in this case were referred to as “B,” 5 years and 8 months old and “S,” 3 years and 10 months old.

The Applicant Father wanted sole parental responsibility. The Independent Children’s Lawyer sought Orders that the children live with the father and that the mother spend time with the children from 11 am to 2 pm on Saturday for 4 weeks, and when the initial 4 weeks had expired, from 10 am to 4 pm each Saturday for the next 5 months. The Applicant Father was in agreement with the Orders that the Independent Children’s Lawyer was seeking.

The Respondent Mother sought Orders that the children live with her and that she have equal shared parental responsibility with the father. The mother did not outline the amount time she was happy for the father to spend with the children and left this Order for the Court to make, based on what it found to be in the children’s best interests.

You might be wondering why I am writing a blog article on this case? This case demonstrates the importance and value of good parenting skills and of a parent encouraging the child’s relationship with the other parent. The mother’s parenting skills and ability to encourage the children’s relationship with the other parent were significant issues in this case that the court took into consideration in deciding which parent the children should live with. The mother would not let “B” attend school; she alleged that she feared that the father would “interfere” with “B’s” life if “B” attended school. The father argued that the mother had not toilet trained the children. He argued that she did not toilet train the children because she did not want them to develop and become independent. At the time this case was heard, both children were still wearing nappies and were not toilet trained. Further, the court found that “B” was reluctant to feed himself and accepted the father’s evidence on this point.

You might be asking what findings the court made based on the evidence and issues in dispute…  Essentially, his Honourable Justice Watts made findings that he was concerned about the mother’s willingness to encourage the father’s involvement in the children’s lives. The court found that the mother had a misguided view of the father as a “dangerous” man. The court found that the mother was not likely to encourage the relationship between the children and their father. Essentially, the court found that the mother might be unstable and therefore the children might be at risk in her care. Taking into account factors such as that the mother had not toilet trained the children, the court found that if the children were to live with the mother, they would be exposed to emotional harm because the mother was not able to encourage their development and independence.

After considering the evidence, the court ordered that the children live with the father. His Honourable Justice Watts ordered that the children’s time with the mother be supervised be gradually increased from 1 night to 2 nights and then including some time on school holidays.

After reading this blog, you might find yourself asking what does this case demonstrate about Australian Family Law? This judgement can be viewed as placing significant importance on parenting skills and of parents encouraging the child’s relationship with the other parent.
For specialist advise from a family lawyer with expertise in this field of law, contact us on 02 6288 1100 to make an appointment with a family lawyer to discuss your concerns.

With between 32% and 46% of all Australian marriages ending in divorce, depending on the method of estimation, and similar statistics in some other countries, one postal authority has come up with a novel way to save marriages.

Postal authorities in Beijing have attempted to tackle the soaring divorce rate by sending love letters written by lovers seven years ago. This new service allows couples to post a letter their loved one will receive seven years later, a time when many relationships begin to cool. Special envelopes containing a card for a personalised love note went on sale in Beijing on 9 September 2011. Ideally, when the letter arrives seven years later, the couple will still be together. Of course, the reality is – some of those relationships would have ended by the time the seven years passed.

Is a love letter enough to save a marriage? Whilst this idea is a nice suggestion and may re-ignite the romance for some, the reality is that marriages break down for many different reasons. The House of Representatives Standing Committee on Legal and Constitutional Affairs prepared a report in the late 1990s entitled “To have and to hold: strategies to strengthen marriage and relationships”. Chapter 4 deals with factors contributing to marriage and relationship breakdown.

The committee received submissions from a diverse range of organisations, and a common theme of these submissions is that the causes of marriage breakdown are “complex, diverse and interactive and that no single factor can be isolated as the most significant or important reason for marriage breakdown”. Some of the causes of marriage breakdown were cited as:

• - Unemployment and work related problems.
• - High risk factors – such as problems associated with alcohol, drugs, gambling, illness and disability.
• - Cultural issues.
• - Blended families where there are children from previous marriages, as couples often lack understanding of the complexity of issues they need to deal with, and have unrealistic expectations.
• - Ease of divorce.

With so many factors contributing to marriage and relationship breakdown, a love letter written seven years ago will hardly be enough to salvage a marriage.