ByLawyers News and Updates

Defaulters List – FED/NSW

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Family Law Defaulters List – Sydney Registry pilot

The Sydney Registry of the Federal Circuit and Family Court of Australia (FCFCOA) is operating a Defaulters’ List, as a pilot project, from October 2024.

The purpose of the list is to ensure compliance with the relevant Family Law Rules, and with any case management orders and directions made by the court in family law or child support proceedings.

The list is governed by the FCFCOA’s Family Law Practice Direction: Defaulters’ List, which:

  • sets out when a party is deemed to be in default;
  • provides that the onus is on the defaulting party to show cause why a sanction or penalty should not be applied; and
  • notes the powers of the court to sanction and penalise parties, including as to costs.

In considering a show cause application the court can consider:

  • the interests of the parties in the proceedings and the administration of justice by the court more generally;
  • whether the application for relief has been made promptly;
  • whether the failure to comply was intentional;
  • whether there is a good explanation for the failure;
  • the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol;
  • whether the failure to comply was caused by the party or their legal representative;
  • whether the trial date or the likely trial date can still be met if relief is granted;
  • the effect which the failure to comply had on each party; and the effect which the granting of relief would have on each party;
  • whether all parties consent to the step being taken after the specified time;
  • any other matter that the court consider relevant.

See the By Lawyers Family Law – Children and Family Law – Property Settlement commentaries for more information about dealing with breaches of orders.

FED – Family Law – Child support agreements

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In line with the recent amendment to the Child Support (Assessment) Act 1989, By Lawyers have amended the child support agreements, binding and limited, in our Family Law – Children Guide, as well as the payee and payer letters of advice that accompany the binding child support agreement. These precedents are found in the Settling it Early section within the Child Support folder.

The changes concern the suspension of child support agreements when the payee is not an eligible carer and there are no arrangements in the agreement for change of care. We have consequently added a clause to each agreement that states:

In accordance with section 86(1)(2)(a) of the Act, the terms of this agreement are capable of being suspended for up 26 weeks if the payee ceases to be an eligible carer of the child for a period of 28 days or more.

The suspension period in child support agreements can be reduced to less than 26 weeks, however pursuant to the legislation, 26 weeks is the maximum suspension period.

Pursuant to the the Act, the eligible carer will cease to be eligible if they have less than 35% of time with the child. Therefore, if the liable parent has more than 65% of time with the child, this will mean the payee is no longer an eligible carer. In this case the agreement will be suspended and then possibly cease to operate in respect of that particular child pursuant to s 86(1)(2)(a). An optional clause is available that allows the parties to set their own limit that triggers termination:

This agreement will cease to operate in relation to each child … if the care arrangements for the child changes resulting in the payer having more than [insert limit]% care.

The accompanying advice letters discuss the issue and provide advice in addressing s 86.

This is a highly sensitive area for many clients. The By Lawyers guide assists practitioners to operate with confidence.

FAMILY LAW – BINDING CHILD SUPPORT AGREEMENTS

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The Binding Child Support Agreements commentary has been updated with relevant case law.

Balzano & Balzano [2010] FamCAFC 11 at [40]-[41] and Gallup & Gallup [2009] FMCAfam 839 at [52]-[53] both demonstrate the extreme difficulty in having a binding child support agreement set aside.

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. …

 

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