Don’s Family Law Blog

New Zealanders not only have unusual names for their towns, some New Zealand parents apparently give their children ‘unusual’ names as well ..  read more.

A six minute You Tube video posted by self-styled “Woman Warrior” and extra from the Benny Hill show, Tricia Walsh 52, has been called a “callous campaign to embarrass and humilate her husband and his daughters” by a New York State Supreme Court Judge. 

The woman’s husband, Broadway Producer Philip Smith, 77,  considered the video spousal abuse and thereby grounds for divorce, and Judge Harold Beeler agreed.

Research conducted by the director of Queensland’s DNA testing facility, Andrea Hayward, (as reported in the Courier Mail today)  advises that as many as 1500 paternity tests are carried out each year in Queensland. 

Interestingly, 20% of these tests are requested by mothers who Hayward  reports “have had affairs while in a relationship and need to determine the identity of the genetic father before the child is born” . 

Fathers however are the biggest requesters of testing and it seems from the research that 80% in fact turn out to be daddy.

Paternity testing is not an uncommon issue in family law proceedings.  Typically, as supported by Hayward’s research, it is a man who will question his paternity of a child of the relationship.  He may be driven to request the test by the acrimonious breakdown of a relationship and his resulting suspicions of the mother and/or to verify his child support obligations. 

While much less common, it is not unheard of for a woman to reveal, following a marriage breakdown that a child is not her ex’s.  The motivation then is usually an attempt to remove parental rights from the “dad”.

Whether or not the husband turns out to be the biological father,  the Court can, and does on occasions, still support the relationship between `dad’ and the child if it is in the best interest of the child. 

As reported today, the NSW Attorney-General, John Hatzistergos, has stated that the Federal Government should amend laws to provide for child support to be assessed against both lesbian parents.

This makes sense as it is a logical extension of the commitment made to a child by a couple relying on artificial insemination.

The comments made by the Attorney-General relating to the Family Law Act’s recognition of a “legal parent” and the Family Court’s approach in proceedings before it, are not correct.  A person having an interest in the welfare of a child has standing in the Family Court.  Many lesbian parents have battled for parenting obligations.

As mentioned in previous posts in this blog, Justice Tim Carmody retired on 8 July after serving 5 years on the Family Court bench.

Carmody J. explained his reasons for retirement in a long article published in the July issue of Proctor.  Reproduced below is a quote from that article:

“Committee work, especially in the area of law reform and policy development, was a particular interest.  Being at the court gave me the scope to take responsibility for designing and implementing the transition to a new individual judicial docket and a more streamlined national caseflow management system.”

While I am pleased to hear that this has occurred, we are not yet aware of any of the details.

As reported in the Australian, Michelle Fernando told the Australia Institute of Family Studies Conference in Melbourne that Family Court judges should be willing to talk directly to children in cases directly relating to them (see article).

On the practical level it’s a personal thing.  Some judges would be great at gaining insights from the children.  Others, perhaps, would only scare them.

I have seen it work and most recently by a judge (a father of several children) and a 12 year old.  The issue was school selection.  The quick meeting stripped away the lawyers’ blathering and positioning and achieved a quick (and for the child) appropriate solution.

Man killed by folding couch… read more

In 1999 the former Attorney-General Daryl Williams established the Federal Magistrates Court of Australia.  The court’s purpose was to hear the simpler cases that otherwise would have been heard by the Federal and Family Courts.  A new class of judicial officer was created - Federal Magistrate, who in a hierarchical sense rank below Federal and Family Court judges.

The Federal Magistrates Court in Brisbane now takes over 90% of the filing of new cases, the balance going to the Family Court. 

To the outsider there is little to distinguish the courts.  They exercise an almost identical jurisdiction with the only difference being that the Family Court hears appeals from the Federal Magistrates Court.  They occupy the same premises and use the same registry.  Both sets of judges are addressed as “Your Honour” but the Federal Magistrates have applied a nice blue tape to their otherwise identical black robes.

Why then are these 2 courts separate?

The Attorney General no doubt had many reasons, but at the time the then Chief Justice of the Family Court was overtly political through making many comments against the government.  This together with perceptions that the Family Court was somewhat less than efficient no doubt influenced his decision.
With a new government this history can be forgotten and a merger of the courts is most likely. The basis of the merger is presently under discussion.  The stakeholders all have position to protect or progress.  Managing conflicting expectations will be extremely complicated and may, in the end, prove too hard.