Latest News

Posted by Kate Freshwater, Solicitor

There is little denying the fact that legislative measures have historically failed to deal appropriately with the issue of family violence. In an attempt to provide better protection for children and families at risk of abuse, the Federal Government has now completed drafting The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 which will amend some key provisions of the Family Law Act 1975. The Act will apply to all proceedings issued under the Family Law Act 1975 on or after 7 June 2011.

The Parliament, in its Explanatory Memorandum, states that the key amendments propose to:

 prioritise the safety of children in parenting matters;
 change the definitions of 'abuse' and 'family violence' to better capture harmful behaviour;
 strengthen advisers obligations by requiring family consultants, family counsellors, family dispute resolution practitioners and legal practitioners to prioritise the safety of children;
 ensure the courts have better access to evidence of abuse and family violence by improving reporting requirements; and
 make it easier for state and territory child protection authorities to participate in family law proceedings where appropriate.

Importantly, the amending Act broadens the definition of ‘family violence’ to include the notions of coercion and control and removes the test of whether or not it was reasonable for the family member to be fearful. All that need be proven now is that the behaviour caused the family member to be fearful. Further amendments also provide for definitions of when a child is ‘exposed to family violence’ and the definition of abuse in relation to a child has been expanded to include causing the child to suffer serious psychological harm and serious neglect.

One of the purposes of the amending legislation is to ensure that all appropriate information is before the Courts when they are faced with making orders concerning parenting arrangements. The Courts will now have an obligation to enquire of the parties whether there are any concerns regarding family violence and child abuse to ensure that these cases are properly managed. Also, the broadened definition of abuse will ensure that a greater range of abuse cases will be reported to the relevant welfare authorities pursuant to the mandatory reporting requirements already contained in the Family Law Act 1975.

Currently, prior to making applications to the Courts for parenting orders, parties are required to participate in Family Dispute Resolution. Family Dispute Resolution Practitioners carry out comprehensive assessments of the parties prior to them engaging in the dispute resolution process to ensure they are suitable. A history of family violence and the welfare of children are relevant factors in determining whether or not particular cases are appropriate for dispute resolution or whether the parties should be permitted to go straight to Court. It may be the case that as a consequence of these amendments, a greater number of cases will be deemed unsuitable for dispute resolution and more applications for parenting orders issued in Court.

Lastly, and importantly, the amendments also now direct the Courts, when determining what is in the child’s best interest in any particular case, to give greater weight to ‘the need to protect the child from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence’ in preference to the benefit to the child of having a meaningful relationship with both parents.

The overall effect of these amendments really is to provide a better framework in which to ensure that any information about family violence and child abuse is before the Courts when they are determining disputes concerning parenting arrangements.

The Family Violence provisions in the Family Law Act are in addition to the other protective provisions in State legislation, and do not affect the ability of parties or State welfare agencies to apply to the State courts for protective orders (eg. Intervention Orders or Child Protection Orders).

If you would like to discuss your options in relation to formalising parenting arrangements, our firm can assist you both with the family dispute resolution process and if necessary, Court proceedings to obtain parenting orders.

Posted by Kate Freshwater, Solicitor

Children experience a considerable developmental stage between birth and 4 years of age, and importantly, it is during this time that their attachments are established. In the context of parenting disputes, this then raises the question, what is appropriate when you have two parents each seeking to spend substantial time with a child, in particular overnight time, and how do you strike a balance between facilitating relationships with both parents while being careful not to disrupt the development of the child’s attachments.

Federal Magistrate Robyn Sexton recently published an article in Australian Family Lawyer (Vol 22 No 2) in which she draws together the various views on what is appropriate when considering parenting arrangements for the 0-4 age group. Some of the research in this area suggests that by about the age of four, children are better able to move between two households and so striking the balance from this age onwards is a less delicate task. The research suggests that children under the age of two years who spent one overnight per week with the non-resident parent were adversely affected; while children aged 2-3 years spending five or more overnights per fortnight with the non-resident parent similarly suffered adverse effects.

Despite the research, the circumstances of every case must be carefully considered as there may be circumstances in which overnight time with the non-resident parent is appropriate. In Cooke & Aiken [2011] FMCAfam 1465 it was considered appropriate that a 23 month old child spend one overnight per week with the father, being the non-resident parent. In that case, it was submitted by the father that the child had developed an attachment to both parents. Some of the relevant considerations were that this child had been attending day care from the age of eight months, there was a common parenting approach and common routine for the child and there were no concerns about safety. 

While some overnight time may be appropriate in some cases, the frequency of that time will require careful consideration. Of course, this is not to say that frequent daytime contact should not take place. On the contrary, the non-resident parent should be encouraged to spend regular time with the child during the daytime, but children seem to be susceptible to stress and anxiety when it comes to being separated from their primary carer overnight.

It is only natural for a parent to want to spend as much time with their child as possible. As difficult as it may be, it is important to ensure that the arrangements entered into for the care of children are made with the child’s best interests and developmental needs in mind, and not on the basis of the parents’ preferences, particularly when the child concerned is aged 0-4.

If you require any legal assistance in relation to parenting arrangements for children, please contact our office.

An important time to consider tax liability is following a relationship breakdown. A tax effective way to provide financial support for your children is by establishing a Child Maintenance Trust ("CMT").

The payment of child support is generally made from a person's after tax income. Unlike payments to children under 18 from discretionary family trusts, payments to children from a CMT are taxed at ordinary adult rates. Child Maintenance Trusts therefore provide a very tax effective mechanism of paying child support.

Requirements for establishing a CMT are set out in the Income Tax Assessment Act 1936. Essentially a transfer of income producing property is required, which can include real property, cash, shares or even a flock of sheep.

Other requirements for a CMT are:
• A family breakdown has occurred.
• An Order, determination or assessment has been made, by the Child Support Agency or the Court requiring the payment of child support.
• The assets of the CMT must be beneficially owned by the child, therefore the child ultimately receives the trust capital.
• The CMT must generate investment income, which is used primarily for the maintenance, education and advancement of the child.
• The transfer of assets must be at arms length, meaning they have their true value.

There is currently no capital gains tax relief on the transfer of assets to the CMT, stamp duty may also be payable on the transfer.

CMT are not for everyone, but when used correctly can provide significant financial benefits. At Cosgriff Orchard Legal we can advise whether a CMT is suitable for your circumstances and guide you through the process of establishing a CMT.