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:

• Coming Soon – Compulsory Mediation
• Associate Appointment
• Changing a Court Order
• Superannuation Death Benefit Nominations
• What is a “Reasonable Excuse” when a Court Order is Contravened?

Coming Soon – Compulsory Mediation

Under the “Shared Parenting” amendments to the Family Law Act that commenced on 1 July 2006, there will soon become a requirement for compulsory mediation.

As of 1 July 2007 an Application to the Court for a Parenting Order will not be possible unless the parties have obtained a Certificate confirming they have attended a family dispute resolution meeting and made genuine attempts to resolve the matter.  There are some limited exceptions to this requirement.

Associate Appointment

We are pleased to announce the recent promotion of Elizabeth Millar as Associate at our office. Elizabeth practices exclusively in Family and Relationship Law.

Elizabeth’s elevation and expertise reinforces our position as one of the largest Specialist Family Law firms in Queensland.

Congratulations Elizabeth!

Changing a Court Order

Since the “Shared Parenting” changes to the Family Law Act there has been a renewed interest in people trying to change previous Court Orders to take advantage of the new legislation.

The law states that a Court Order cannot be changed unless there is a “significant change in circumstances” and for Orders made before 1 July 2006, the new “Shared Parenting” legislation does not in itself establish such a change.

So what is a “significant change in circumstances”?

The Court recently considered such a case, i.e:

• The Husband and Wife were both 40 years of age, they had been married 9 years and had 2 children (aged 9 and 7) who lived with the Wife in Melbourne.
• After separation in April 2003, the Husband left Melbourne and began living in Sydney.
• A Consent Order regarding the children’s arrangements was reached on 7 August 2003 and that was varied by Consent on 25 May 2004.
• In September 2005 the Husband filed an Application seeking to vary the Order with respect to Christmas holiday contact arrangements. The variation sought was a minor “mechanical” change.
• The Wife cross-applied seeking that the previous Court Order be entirely discharged and replaced with a new arrangement.

The Court stated that:

• The hurdle to any change was the Court being satisfied of a “significant change in circumstances”.
• A Court Order is designed to end litigation and thereby protect children from exposure to further unnecessary litigation.

The Court held that:

• There had been no material change in the circumstances of either party since the Order of May 2004.
• Where the parties seek to “fine tune” an Order to make it more workable, a change in circumstances does not necessarily need to have been demonstrated.

• A few minor “mechanical” changes should be made, but as no “significant change in circumstances” was established no other variation was made.

Superannuation Death Benefit Nominations

The changing nature of families, including complex family relationships, offspring with multiple partners and growing numbers of “adultescents”, means that sorting out member’s Superannuation Death Benefits has become increasingly onerous for Super Fund Trustees.

Everyone with a Superannuation policy is urged to update their Death Benefit nomination when their family circumstances change.

The Australian Superannuation Fund Association has produced a Best Practice Paper on Death Benefits and states that the laws surrounding payment of a Superannuation Death Benefit are often quite different from inheritance law. Trustees have to deal with a wide variety of claims from every permutation of relationship, including adult children of a previous relationship against infant children of a current relationship, parents of a deceased adult child who was living with them and even flatmates.

The Association’s experience has shown that complex family situations are more likely to result in disputes over a member’s Death Benefit.

What is a “Reasonable Excuse” when a Court Order is Contravened?

The Court has recently considered a Mother’s defence to a Contravention Application of a Parenting Order and found that she had a “reasonable excuse”.

The facts were:

• A Court Order was in place providing that the 12 year old child live with the Mother and have specified contact with the Father.
• The child had not spent time with the Father since 6 months prior to the Contravention Application being filed.
• The Father brought a Contravention Application against the Mother containing 20 alleged breaches.
• The Mother admitted some of the breaches but stated she had a “reasonable excuse” being that the child refused to attend contact because of the Father’s poor attitude to parenting and his refusal to acknowledge his failings as a parent. These failings included allegedly being drunk, taking the child to a Hotel, ignoring the child, growing marijuana and having a number of firearms in the house.
• The Father asserted that the Mother had a proactive duty to facilitate contact which she had failed to discharge. It was the Father’s case that because of the Mother’s hostility towards him that she had passively undermined the Contact Order and had told the child that it was acceptable that the child not go on contact with the Father.

The Court found that:

• The Mother was dogmatic and stubborn.
• Each parent had failed to apply themselves to finding a solution.
• The Contravention Application be dismissed as there are valid reasons why the child has reached his position which are free of manipulation or influence from the Mother.