Don’s Family Law Blog

As reported, here, child support dodgers (usually fathers) are common.  The Child Support Agency (CSA) has many powers to pursue evaders including prevention from leaving the country.

The CSA has had the best of intentions, but bureaucratic style service delivery can lead to extraordinary delays.  Child support payments are for `now’ expenses like food and clothes.  Delays of months are completely counter-productive to the CSA’s aims.

It is time the CSA engaged the private profession to chase the evaders.  With strict service standards and responsive courts married to the local expertise of experienced family lawyers, quick enforcement outcomes will happen.

In Farnell (No 2) [2007] FMCAfam 482, the Federal Magistrate found that although there was equal shared parental responsibility, because the father neither sought, nor wanted, an equal time order (in that case perhaps for good reason), no equal time order was made.

One wonders whether if a party who seeks equal shared parental responsibility, must then actually submit to that responsibility and, where practicable, make provision to care for the child(ren) on an equal time (or substantial and significant time) basis. In my view, for every right that is claimed, there is an equal and countering responsibility. Assuming the recent legislative amendments have been driven from lobby groups collectively known as “Dad’s Rights” groups, will there be an equal and necessary “Dad’s Responsibility” movement, which will require all parents to truly share the care of their children equally.

 An amendment to Queensland law proposed by Queensland Attorney-General Kerry Shine  to address the increasingly reported problem of children being found abandoned in car parks or hotel rooms while their parents drink, shop or gamble could see Queensland parents who abandon a child under 12 years of age  for an “unreasonable amount of time” jailed for up to 3 years.  It is proposed that police will be given the discretion to judge what is an “unreasonable amount of time.

Under the current law, parents can only be charged in circumstances where the children are hurt.  If the children are not physically harmed, police can only issue a warning. “

While the actions of the parents in these type of circumstances are totally indefensible, is jailing them the answer?  Will removing the children from their incarcerated parents and placing them into an already stretched child protection system have a greater detrimental effect on the children that the law is seeking to protect? 

While clearly the parents should be held accountable for their actions, perhaps an order for them to participate in parenting programs or community work orders would be a more child-focused outcome.

 Since its inception eight years ago, the Federal Magistrates Court (FMC) has established itself as a trial court in a number of areas, notably family law and child support. The FMC shares its jurisdiction in these areas with the Family Court of Australia (FCA).

The caseload and range of cases handled by the FMC has increased dramatically over its short life.  The rapid growth in the functions of the FMC has resulted in it being under resourced and funded.  Clients have criticised the FMC for its inability to cope with its present workload.  Some punters reporting waiting several months for decisions to be handed down by overworked Federal Magistrates.

The Federal Government has responded by setting a number of strategic directions for the FMC in the 2008/2009 Budget.  In order to achieve the goals set for the FMC, the Federal Government has increased funding for the FMC from $57,985,000 to $82,029,000 for 2008/2009.

The strategic directions for the FMC as set out in the Federal Budget include:-

1. Continued growth in the size of the FMC’s bench and the breadth of its jurisdiction.
2. Funding for an additional five Federal Court Magistrates. The additional Magistrates will assist in managing the heavy and demanding caseload currently faced by the bench. The FMC is said to continue to closely monitor the timeliness of the delivering of judgments and these additional Magistrates will assist with this.
3. The FMC has been set a target of less than 1% of cases litigated or divorces proceeding being subject to a complaint.
4. The FMC has been set a target that the time taken between filing to disposition, being by trial or settlement, is less than 6 months in 90% of cases.
5. The FMC has set a target that 60% of matters filed in the FMC should be resolved before trial.
6. The FMC will also seek to also obtain feedback from clients in relation to:

(a)    Whether they are satisfied that their disputes have been handled quickly and simply;

(b)    The simplicity and effectiveness of court rules; and

(c)    The availability of information about the court.

This has to be money well spent.

A Family Court dispute involving a little girl’s birthday highlights the emotional intensity underwriting some family law disputes.  It is reported that $30,000 was expended on 3 barristers and 3 solicitors to represent the parties before a judge, who was asked how to divide a little girl’s birthday between 2 disputing parents.A determination was always going to involve a compromise and not an outright win to either parent.  I am sure the parties’ legal representatives made this clear to their clients.  But, clients don’t always take advice and sometimes to their significant cost.

The recent retirement of Family Court Judge, Paul Guest, was marked by comments made by him that trends within family law risked the “dumbing down of family law”.  His Honour was referring to the rare type of family law case where one party (as the law currently stands) obtains a greater share of the jointly accumulated property than the other party, due to a special skill giving rise to a greater contribution.  These cases are often referred to as entrepreneurs cases.

Justice Guest is critical of views emerging from certain judges of the court that there ought be no recognition of special skills as marriage is a partnership and the fruits of that partnership ought be shared equally.  Justice Guest correctly points to the fact that a determination of a distribution of property requires a consideration of contribution made by the husband and wife, and that an extraordinary contribution giving rise to significant wealth ought influence the outcome in favour of the contributor.  The emerging view is troubled by attributing value to disparate contributions.  They would ask the question:  How can you value an extraordinary financial contribution as being greater than that of the role of mother?

Both positions clearly have merit.  If the market says a soccer player is worth $1,000,000 per annum, then surely this is an extraordinary contribution that ought be recognised in a property division.  If the soccer player’s wife is to claim equality, then perhaps her contributions to the “partnership” need also to be closely examined.  Should Victoria Beckham share equally in the property accumulated with David?

Many cases of proffered extraordinary contribution can be matched by similar extraordinary contribution by the other spouse.  In other cases that simply is not so.  The Family Court hitherto (and for mostly good reason) has been disinclined to closely examine the disparate contributions of both spouses.  If the wife of an entrepreneur is blessed with the assistance of a nanny, chef, maid and driver how can she assert an equal partnership?