Insights

Grasping the Child Support System

August 10, 2018

The Child Support Scheme is administered by the Child Support Agency, which is part of the Department of Human Services. The Scheme aims to make sure that children get a sufficient amount of financial support from both parents following a separation.

What are the eligibility criteria?

Before the Department of Human Services accepts an application for a child support assessment, they need evidence that both the mother and father listed on the application are the legal or biological parents of the child.

For example, you must show one of the following:

  • The parents were married when the child was born;
  • The parents are named on the child’s birth certificate;
  • The male parent was living with the mother between 20-44 weeks before the child was born;
  • Adoption papers list both parents;
  • A Court has found that the person is a parent of the child.

The formula for assessing child support

Child support payments are payable when there is a child support assessment, a court order or an agreement between parents, which has been documented and lodged with the Department of Human Services. The child support formula is designed to provide a balanced way of working out child support payments, taking into account different family circumstances. It’s based on the income of each parent (after allowing a self support amount), the care arrangements for the child and the age of the child.

Child support agreements

Both parents can make a formal agreement about child support payments. For example, one parent might agree to pay for school fees or healthcare costs. If you wish to enter into a binding child support agreement, you are required to get legal advice before entering into the agreement.

How child support payments are made and received

Child support payments can be transferred privately between parents and this is referred to a “Private Collect”. They can also be collected and transferred by the Department of Human Services and this is referred to as “Child Support Collect”. Private collection is suitable for parents who are able to communicate with each other about child support, who want flexibility in the way they make payments, and when they are in a situation where payments can be made reliably. Child Support Collect is preferable if you do not wish to have any direct involvement with the other parent, or if the receiving parent requires support enforcing payments on time.

If your circumstances change

If your situation changes and it affects your child support arrangements, you can apply to the Department of Human Services for a re-assessment of your payments. If one parent moves outside Australia, the Child Support Agency may be able to assist in collecting and transferring child support payments. Child support systems vary from country to country, so there may be a delay before a parent receives their payments.

If you need help navigating the child support system, the best thing you can do is seek legal advice from a reliable family lawyer. Paterson & Dowding is a Perth-based firm of Family Lawyers and Divorce Lawyers with experience in parenting matters such as child support, living and care arrangements, divorce and more. Whether you need assistance in setting up new child support arrangements, or dealing with a change in circumstances, Paterson & Dowding can offer practical advice to ensure the best outcome for your family. To find out more about the child support system, call Paterson & Dowding on 08 9226 3300 or visit www.patersondowding.com.au

Posthumous Collection and Use of Gametes

July 30, 2018

On 20 June 2018 the Supreme Court of Queensland handed down the landmark decision in Re Creswell [2018] QSC 142. The Court was asked to determine whether the Applicant, a 25 year old woman, had the right to possession of the spermatozoa of her deceased fiancé, removed some 48 hours after his death pursuant to a Court Order.

The Applicant, Ms Ayla Creswell, and the deceased, Mr Joshua Davies, were in a relationship for approximately three years and were planning to get married and have children. Tragically, Mr Davies took his own life in August 2016.

With the support of her family and the deceased’s parents, Ms Creswell made an urgent application for the removal of sperm posthumously and subsequently for a declaration that she has the right to possession and use of the sperm.

The law relating to posthumous use of gametes (sperm and ova) varies among Australian states. In Queensland, where the case was decided, there is a statutory regime for removal of sperm from a deceased person. However, there is no statutory regime which applies to the use of posthumous sperm.

Prior to this case, there had been no consideration in Queensland of the Court’s jurisdiction to make orders as to whether a party is entitled to possess and use any sperm that has been removed. In this instance, the Court said that such a determination depended on whether the sperm could be characterised as property, and if it is, who has rights in relation to that property.

Ultimately, the Supreme Court of Queensland was satisfied that the sperm was capable of being property as a result of the work and skill applied in removing, separating and preserving the sperm on behalf of Ms Creswell. After considering a number of discretionary factors, the Court determined that Ms Creswell was entitled to permanent possession and confined use of the sperm.

While this is a landmark decision for Queensland, the position in Western Australia remains far more restrictive for those wishing to use gametes posthumously to conceive a child.

Like in Queensland, there are legislative provisions in Western Australia dictating the posthumous removal of sperm.

Although in Queensland the Court is required to make an order regarding the posthumous removal of gametes, in Western Australia, section 22 of the Human Tissue and Transplant Act 1982 (WA) provides that a designated officer for a hospital may authorise the removal of tissue from a deceased person-

  1. a) for the purpose of the transplantation of the tissue to the body of a living person; or
  2. b) for use of the tissue for other therapeutic purposes or for medical or scientific purposes.

The authorisation can only be given where –

  1. a) during the lifetime of the deceased person, the person expressed the wish for, or consented to, the removal of tissue from his or her body after death for the purpose or a use referred to above (and had not subsequently withdrawn the wish or revoked the consent); or
  2. b) there is no reason to believe the deceased person had expressed an objection to the removal of tissue after death and the senior available next of kin consents to the removal of tissue from the body of the deceased person.

Interestingly, although the Human Reproductive Technology Act 1991 (WA) requires the consent to be given in writing by the person whose gametes are to be used , even with such consent, the use of gametes in Western Australia is only permitted during the life of the donor.

This means that while there are provisions for their removal, the use of gametes posthumously to conceive a child in Western Australia is not permitted.

Directions given by the Commissioner of Health to set the standards of practice under the Human Reproductive Technology Act 1991 (WA) state that a license holder “must not knowingly use or authorise the use of gametes in an artificial fertilisation procedure after the death of the gamete provider.”

So where does all this leave Western Australians wishing to use gametes to conceive a child after the death of a gamete donor?

Well, currently, any person wishing to use gametes in such a manner needs to relocate the gametes from Western Australia to an interstate jurisdiction where posthumous use of gametes is permitted.

The Supreme Court of Western Australia was recently asked in the case of GLS -V- RUSSELL-WEISZ [2018] WASC 79 to decide whether the plaintiff (de-facto partner of the deceased) had the right to direct the clinic storing the sperm extracted to be transferred from Western Australia to the Australian Capital Territory (where posthumous use of gametes is not prohibited) without the prior approval of the Reproductive Technology Council of Western Australia.

Although Martin CJ decided that the plaintiff had the right to direct the clinic currently storing the samples to transfer them to another clinic in the Australian Capital Territory, in his decision, His Honour avoided determining the question of precisely what rights the plaintiff enjoys with respect to the stored samples.

It would therefore appear that provided sperm is removed in accordance with the Human Tissue and Transplant Act 1982 (WA), the senior next of kin has the ability to direct the transfer of gametes extracted posthumously interstate, where their use will be dictated by the laws of that state.

In looking at the various cases available on this subject it is interesting to note that there is a body of legal commentary and opinion which criticises the approach whereby applications for posthumous collection and use of gametes are managed simply as legal issues, avoiding the complex ethical questions surrounding the same. It will be interesting to see whether this approach changes in the future as we start seeing more attempts to use posthumous gametes to conceive children.

How does the Family Court deal with financial gifts?

June 29, 2018

The general rule is that in the absence of evidence to the contrary, the Court will regard a gift to a spouse made by a third party – usually a parent or relative, as a financial contribution made by that spouse, even though the gift may have benefited both spouses – Gosper and Gosper (1987)

What is evidence to contrary? This depends entirely upon the facts. For example, if a parent buys a home for their son but registers the property in joint names with his wife, this may allow the wife to argue that her in-laws intended to make the gift to the both of them.

The question whether a financial benefit is a gift or a loan, will depend on the evidence. The case law suggest that the Court will take into account a range of factors when making this decision. These factors include, but are not limited to:

  • whether there is a written agreement;
  • is there a repayment plan in place?;
  • is interest payable?;
  • have any repayments been made?;
  • has there been a request for repayment?;
  • at what stage of the relationship was the money transferred?;
  • what was the money used for?

The main point to consider is whether to argue the issue at all. For example, if a husband alleges that he received a sum of money as a loan, he then can’t claim the credit of the contribution (because he must repay it). This may favour your claim for property settlement. You therefore might want to concede the point. Early and accurate legal advice on this issue may save you a lot of time and unnecessary legal fees.

Welcome to our new Family Lawyers

June 18, 2018

Paterson & Dowding are delighted to welcome two new staff to the team, Patricia Schrape and Ursula Stevens.

Patricia joins us as a lawyer. She has experience in a range of parenting matters such as care arrangements, adoptions and relocations as well as financial and property related matters including settlements involving complex business and trust structures.

Ursula joins us from Slater & Gordon as a lawyer. She has experience in all aspects of Family Law.

Patricia and Ursula are both welcome and valuable additions to our team of experienced family and divorce lawyers.

 

Start the new financial year with the right family advice – $350p/h Initial consultations

June 16, 2018

Let us write the next chapter of your history with you. With the end of financial year approaching you may be thinking about managing your relationships in the year ahead. Let us help you to get your life back on track – for you and your family.

Contact us today. We are offering a special rate for initial consultations of $350+GST per hour (selected practitioners only) if booked between 18 June and 20 July.

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