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:

• Defacto Property Settlements – Made Simple!
• Coping with Christmas
• Seminar Series – Free
• Changing a Court Order
• Determining “Earning Capacity” for Child Support
• Merry Christmas!

Defacto Property Settlements – Made Simple!

For information on, how to determine what is a defacto relationship for the purposes of a property settlement? How defacto property settlements in Queensland are determined? and How they can be documented? visit  Family Flyer Issue 19.

Coping with Christmas

Christmas can be a time of sadness and disappointment and caught in the middle of it, are the children.

For timely tips for separated mums and dads, visit our article on  “Coping with Christmas“.

Seminar Series – Free

We present FREE Family Law seminars on a number of topics.  This year we have presented over 50.

For seminar topic information visit “Seminar Series” at  www.mlfl.com.au.

If you are a business, organisation or community group and feel there would be benefit to your organisation in us presenting one of our FREE seminars or you would like to discuss designing specific content to suit your audience, please contact us.

Start thinking about your training and seminar requirements for 2008.

Our seminars are usually for 1 hour and include a presentation , powerpoint and handout material.  For more information contact us on (07) 3221 4300.

Changing a Court Order

The Court recently determined an interesting case involving a child’s change of school and the broader question of whether there existed a”significant change in circumstances” to allow more wholesale changes to be made to a Final Court Order.

The facts:

• The child was born in 1998 and her parents separated in 2000.  Since separation there had been constant dispute between the parents.
• The child had special needs that required additional medical and schooling support.
• The parents made a Court Order by consent in 2006.  The Order provided that the child live with the Mother 5 days a fortnight and with her Father for the rest of the time.
• The Order also provided that the child attend a particular primary school until the end of 2006 and after that the Father give the Mother written notice of any school that he proposed the child attend in 2007 and if it was not the stated primary school, that he may not enrol her in any school without the Mother’s written consent.

Issues:

• The parents each proposed a different school for the child to attend.
• The Mother wanted to make wholesale changes to the Court Order.
• The Father argued that the Mother was prevented from seeking broad changes to the Order as she had failed to establish a “significant change in circumstances”.

The Court Ordered:

• Determining the child’s schooling did not need to establish a threshold test of a “significant change in circumstances” because the current Court Order had left the issue open.
• That a prior agreement between parties of a particular school does not carry much weight if there are changed circumstances in a family.

• The child should attend the school nominated by the Father.  The Court considered the child’s “best interests”, but principally the travel commitment associated between the two schools and also that the new school better addressed the child’s special needs.
• The Mother’s basis for alleging a “significant change in circumstances” included, continuing conflict, involvement of police, inappropriateness of the Father’s house, the child’s unexplained absences from school, the Mother now being pregnant and concerns about the adequacy of after-school care provided by the Father etc.
• Nothing raised warranted a reconsideration of the case nor were any of the Mother’s concerns new, they had all been present prior to the making of the Consent Order.
• The Mother was not allowed to proceed with an Application to vary the Court Order.

Determining “Earning Capacity” for Child Support

One of the big changes that has recently been made to the Child Support scheme is how to determine someone’s “earning capacity”. This has always been a dilemma in Child Support Assessments.

 The changes to the Child Support scheme are complex but essentially introduce a 4 step process, i.e:

1.  Does a parent have a greater “earning capacity”?

• This involves the consideration of the persons working skills, the availability of work and the pursuit of work.

2.  Does the earning capacity fall within the set criteria?, i.e:

• The parent does not work despite ample opportunity to do so;
• The parent has reduced their employment below full-time; or
• The parent has changed their occupation.

3.  Are the lower earnings justified?

• Has the parents’ decision not to work been based on care responsibilities or their state of health.
• Has the paying parent proved that avoidance is not a “major purpose”?

4.  There is no clear direction yet as to how the Court will apply these new provisions however some questions arise, including:

• Does the parent have to be the instigator of the change? and how will a “major purpose” be determined?

The new provisions will add complexity to how “earning capacity” decisions are made.  It may result in less Applications and therefore fewer findings of greater “earning capacity”.

Merry Christmas!

We will be closed 12 midday Friday, 21 December 2007 and will re-open at 8.30am on Wednesday, 2 January 2008.

Seasons Greetings and Best Wishes for the New Year from all of us at Michael Lynch Family Lawyers.