ByLawyers News and Updates

Family Law – Grandparents order and commentary

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New commentary on parenting orders in relation to grandparents has been added to the Children publication … Grandparents are entitled to apply for parenting orders pursuant to s 65C, which provides: A parenting order in relation to a child may be applied for by … (ba)  a grandparent of the child; or … Whilst grandparents specifically have standing to make an application under the Family Law Act, it does not automatically mean orders will be granted.  As with any parenting order, the court will always consider an application by the grandparents through the prism of what is in the best interests of the child: s 60CC.

Also, a new draft order has been added to the library of Children Orders: “Spending time with grandparents”.

Family Law – Reference Manual – 101 Family Law Answers

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The Reference Manual – 101 Family Law Answers is the first of the By Lawyers reference manuals to be updated to the new stylish format.

As well as the new format, two commentaries have been added in the Enforcement chapter.

Court enforcement of a child support debt: A child support debt, a debt occasioned due to non payment of a registered maintenance liability, is a debt to the Commonwealth, as opposed to the payer, and is recoverable by action taken by the Child Support Registrar: s 113; or by the payee: s 113A. …

Property orders – Enforcement and the overseas factor: Unlike parenting orders, the Family Law Act, Rules or Regulation make no provision for the registration of property orders in overseas jurisdictions, or the registration and enforcement of overseas property orders in Australia. Furthermore, Australia is not party to any international conventions which provide for the reciprocal recognition of property orders overseas. …

 

Family Law – The Harman Undertaking – Information obtained on discovery or subpoena

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Commentary has been added to the Children and Property Settlement publications regarding the Harman undertaking:

Information obtained on discovery, subpoena or included within an affidavit cannot be used for a collateral or ulterior purpose unrelated to the proceedings in which that production occurs. This is called an implied or ‘Harman’ undertaking after Harman v Secretary of State for the Home Department [1983] 1 AC 280. It is a substantive legal obligation owed to the party who produces the documents and to the court: Hearne v Street [2008] HCA 36 (6 August 2008) at [107]-[108].

Family Law – Binding Child Support Agreements

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The Children’s commentary has been enhanced by adding further information regarding the binding nature of Binding Child Support Agreements and the discretion the Court may exercise to set an agreement aside. The Full Court of the Family Court decision in Masters & Cheyne [2016] FamCAFC 255 (2 December 2016) looks at what changes may be sufficient to enliven the Court’s discretion, and they are extremely limited. The Court’s view is that binding agreements are meant to be binding and possible changes in parental arrangements should be considered before executing the agreement.

Family Law – Discontinuance & Summary Dismissal

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Commentary has been added to the Property Settlement, Children and Divorce publications on discontinuance and summary dismissal of proceedings. The necessary forms have also been linked to the relevant matter plans.

Proceedings maybe discontinued according to Family Law Rule 10.11 and Federal Circuit Court Rules 13.01 and 13.02. …

See Bigg and Suzi [1998] FamCA 14 (5 March 1998) where the Court said that not only did it have power to summarily dismiss an
application which could not succeed, but also the Court had inherent power to dismiss or permanently stay an application.

Parenting orders and more

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See the  ‘Reference Manual – 101 Family Law Answers’ for interesting commentary on some of the lesser known aspects of parenting orders as well as commentary regarding the inability to subpoena certain Government agencies.

These can be found in the Children chapter:

  • Authenticated consent
  • Registration of Australian parenting orders overseas
  • Registration of overseas parenting orders in Australia

And in the newly established chapter on Subpoenas:

Subpoenas – ATO, Centrelink and Child Support Registrar

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