Introduction:

The Family Flyer is a free community service by Michael Lynch Family Lawyers. The publication is designed to be informative and topical and to assist you in understanding the ever-changing field of Family Law.

This edition includes:

• Custodial Parents – Freedom of Movement
• Child Support Agreements
• Changing A Child Support Agreement
• Supervised Contact
• The Test for a Parenting Order
• Property Settlement – Valuation Date
• Name Changes

Custodial Parents – Freedom of Movement

The Family Court has the power to decide whether a custodial parent is entitled to relocate with a child, to a different area.

Prior to the June 1996 Family Law Actamendments, the Court’s decision as to whether a custodial parent should be permitted to relocate with the child, was based essentially on the “child’s best interests”. This test also considered that a custodial parent and particularly one with sole guardianship of a child should be free to order his or her own life without interference from the other party or the Court.

Since the amendments in June 1996, specific sections have been introduced, to refocus the extent to which primary residence parents are free to move.

The new Act now focuses on “children’s rights”, including facilitating contact between the child and their wider family. The amendments stress that decisions should be “child-centered”, albeit that that is at the expense of the long held notions of parental power and autonomy.

Ultimately, decisions on movement are relevant to the facts of each case. It does seem however that the new legislation will involve a closer examination of a residential parent’s efforts to relocate although it is unlikely that this will be seen too restrictively.

Child Support Agreements

Parties that have Child Support Assessments should be aware that if they are able to mutually agree on alternative arrangements to the Child Support Assessment they may complete a Child Support Agreement.

The Agreement is a standard form. In it, the parties may set out the amount to be paid, that may involve a variation to the Child Support formula, the method of payment, i.e. case or “in-kind” and the method for collection.

The party receiving the Child Support payment should be wary however, if they are also receiving a Department of Social Security payment. They are unable to make an agreement that reduces the Child Support Assessment by more than 25% of what the Agency would have assessed.

The effect of a Child Support Agreement is to remove the parties from the Child Support Assessment process, so that they can coordinate their own affairs.

Changing A Child Support Agreement

Once a Child Support Agreement is lodged with the Child Support Agency, it can only be changed by the consent of the parties or by an Order of the Family Court, to set aside the Agreement.

Supervised Contact

The Full Court in a recent decision decided to dismiss a father’s appeal against a Family Court Order for supervised contact. The Full Court said that a relevant consideration in making a supervision Order is the effect that contact would have not only on the child but also on the mother, who was genuinely afraid of the father.

The Full Court stated that to remove the supervision requirement would impact significantly on the mother’s ability to provide adequately for the child’s needs.

The Test for a Parenting Order

Since 11 June, 1996, in deciding whether to make a Parenting Order, that is, a Residence Order, the Family Court must consider the “best interests” of the child.

The new legislation specifies 12 matters the Court must consider in determining what is in the child’s “best interests”.

With the amendments, several new factors have been added to the list, such as:

(i) The child’s maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders);

(ii) Any Family Violence involving a child or a member of his or her family;

(iii) Any Family Violence Order that applies to the child or a member of his or her family.

Property Settlement – Valuation Date

The Full Court of the Family Court recently made Orders in a Property Settlement case regarding the relevant date of valuation for items of property.

The Full Court ordered that the property of the parties should have been identified and valued as at the date of hearing. At that date there should then be an assessment of the parties respective contributions, in order to determine the basis for Property Settlement.

Name Changes

In considering whether a child’s surname should be changed the Court has set out various factors:

(i) The welfare of the child;

(ii) The short and long-term effects of any change in the child’s surname;

(iii) Any embarrassment likely to be experienced by the child if its name is different from that of the parent with day-to-day care;

(iv) Any confusion of identity for the child if his or her name is changed or not changed;

(v) The effect any change in surname may have on the relationship between the child and parent whose name the child bore during the marriage;

(vi) The effect of frequent or random changes.

Social convention in Australia is that the child normally takes the surname of the father where parents are cohabitating at the date of birth. The Court has not indicated any preference attaching to the surname of either parent.

The Court is prepared to alter children’s surnames under the provisions of the Births, Deaths and Marriages Act and to emply the use of hyphenated surnames. This becomes a matter of balancing relevant factors however.

It currently seems unlikely that Court sanctioned hyphenated surnames will become the norm in Australia.