Child support agreement between Australia and New Zealand

In 2000 an agreement was signed between Australia and New Zealand which sought to facilitate the recognition and enforcement of child support decisions between the two countries.

A fundamental premise of the agreement is that while child support assessments, liabilities and orders of one country can be subject to applications in the other country, any orders made in the second country can only become binding if endorsed by the originating country.

The recent decision by the Full Court of the Family Court in Child Support Registrar & Higgins [2016] confirmed this.

In this matter the mother, a New Zealander, had obtained a child support assessment from the relevant New Zealand agency. The Australian father subsequently sought an order from the Federal Circuit Court here that the assessment be dismissed or that it was unenforceable. Orders were made by the Court stopping the enforcement of the assessment. The New Zealand agency advised the father that the orders were not acceptable as only a New Zealand court could make such a final order. The New Zealand agency subsequently lodged the assessment with the Australian agency for collection. The Australian agency then became involved in proceedings and appealed the orders that had been made on the basis that they were unenforceable.

The Appeal was wholly successful and the Court confirmed the principles of the 2000 agreement. 

Victorian Royal Commission into Family Violence

The Report of the Victorian Royal Commission into Family Violence was tabled in the Victorian Parliament on 30 March 2016.

The Report contains 227 recommendations including:

•  New laws to establish a Central Information Point to funnel information about perpetrators;
• Support and safety hubs throughout the State;
• A 'blitz' to rehouse women and children who have fled family violence;
• An immediate funding boost to services that support victims and a dedicated funding stream for preventing family violence – including an investment in respectful relationships education at schools and family violence training in key workforce's (such as hospitals and schools);
• An expanded investigative capacity for police – including a trial of body-worn cameras;
• More specialist family violence Courts that can deal with the criminal, civil and family law matters at the same time; and
• An independent Family Violence Agency to review government policy and action.  

The Victorian government had promised to adopt the recommendations in the Report, prior to it's release. It will be of interest to see the roll out of the recommendations - not just in Victoria but as to whether other States follow Victoria's lead. 

How to help a friend going through separation

Family law is such a multifaceted jurisdiction that obtaining expert legal advice as a necessity. With the complexities of modern life - with everything from stepfamilies to intricate family trusts - the days of armchair advice may be over.

What has not changed however is a persons need to have a friend talk to. But knowing the right thing to say can be overwhelming especially considering the emotional sensitivity of the issues involved.

While each separation will be different here are a few tips for helping a friend during this time:

• be calm and rational - encourage them to see that time or more information may help them make a more informed decision;
• be objective - help them focus on the practicalities;
• encourage them to seek assistance - to see a lawyer to sort through things but also their doctor or a councilor if necessary; and
• Lastly, just be there for them as their friend. 

When a parent retains a child

From time to time the media will report that a child has been retained by one parent.

If the child is in Australia the parent who does not have the child can bring an application with the Family Law Courts to try and recover the child. This is known as a 'recovery order'.

It is necessary to present any existing orders, where the child usually lives, when the child ought to have been returned, where the child could be, steps that have been taken to locate the child, why it is in the child's best interest to be returned and the likely impact on the child if a recovery order is not made.

If the parent with the child participates in proceedings the Court will make an order as to which parent the child should be pending further order being made.

If the parent with the child cannot be found the Court can order that a person, such as a police officer, take appropriate action to find, recover and deliver the child to the applicant parent or some other carer. The steps that can be taken include stopping and searching vehicles, vessels or aircrafts and the searching of any premise or place where the child reasonably could be.

The Court can also order a 'location order' to obtain information from a government agency about the child's possible location. The Court can also make a 'publication order' which allows the media to publish the details and photographs of the missing child.

Amalgamation Bill passes the Senate

I mentioned in a post back in December last year, Proposed Amalgamation of the Federal Courts, that the Government had introduced a Bill to amalgamate the three Federal Courts into one administrative body.

The Courts Administration Legislation Amendment Bill 2015 has now been passed by the Senate and is currently before the House of Representatives.

The view of the Government is that the amalgamation will result in administration savings that can be used to to help fund the Courts in the future.

Appealing Orders made by consent

In the case of Charring & Bunt the Appeal Court of the Family Court set out a clear annunciation of the issues involved in attempting to appeal parenting orders that were made by the consent of both parties.

Justice Ryan stated "the fact that an order is made by consent does not make the order any different to an order made after a hearing." Her Honour went on to say that that there was one important qualification however: "the correctness of an order may not be appealed on its merits by a party who consented to the order. Rather, that party's right of appeal is limited to vitiating grounds, such as fraud, mistake, fresh evidence or the absence of jurisdiction."

In this case, Justice Ryan found that while the mother's complaint that the Independent Children's Lawyer (ICL) was biased had "the flavour of vitiating grounds" (with the allegation perhaps being mistake on behalf of the ICL) the ICL was entitled to form a view about the outcome and merely because that approach differed from the mother's that did not amount to error. Further, that the mother was not aware that the father had not attended upon a psychologist was also not grounds for overturning the consent orders as that information had been available in the available subpoena material and a decision was made by the parties to enter into the consent orders without consideration of that material.

The mother's application for appeal therefore failed. 

Ongoing funding crisis in the Family Courts

Late last year I wrote about the crisis in the Family Law Courts. It would appear that in the new year no improvements have occurred as recently the ABC reported on a matter from the Wollongong area having to be sent to Brisbane for the hearing.

The ABC interviewed a local solicitor who pointed out that this was distressing for the family involved as it will increase the costs involved in the hearing, both in terms of their personal travel costs but also the legal costs of their solicitors. The solicitor added that the reason the transfer was that other matters were already being given a date 2 years away and having the matter heard in Brisbane was the earliest date that could be given.

The report went on to note that the federal Attorney-General has still yet to appoint two judges to replace two retired judges.

http://www.abc.net.au/news/2016-01-15/judge-shortage-forces-nsw-family-interstate-for-court-hearing/7090164