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Nov 232013

MORE and more families are taking steps to confirm their children’s parentage. But experts say it doesn’t have to be a negative and nasty experience.

For decades paternity tests have been cast as the bad guys, the marriage-breakers, an all-round negative experience – but now, as they become a more common part of modern life, some experts are extolling the positive side of testing.

It is estimated that in Australia, more than 10,000 people – interestingly, mainly women – sign up each year to find out whether their child is biologically theirs, says Professor Michael Gilding of Melbourne’s Swinburne Institute for Social Research.

While that number seems large, Australia remains a bit slow off the mark in embracing these tests. In the US each year, there are about five times as many paternity tests per head as the population.

But Gilding and other experts believe it is just a matter of time before this type of testing becomes more the norm in Australia, with tests becoming more accessible, affordable and acceptable.

— Getting a test

There are two types of paternity tests available in Australia – legal and non-legal.

A non-legal test is for personal information only and cannot be used for legal issues. It usually involves taking a mouth swab using a kit received in the mail. The swabs are taken from the alleged father and child and are then sent to a laboratory for analysis.

Legal tests are required by law to comply with the Australian Family Law Act, so there are strict conditions concerning sample collection and all samples must be tracked from the collection centre to the testing laboratory to be admissible as evidence in court.

— Who wants them?

Men’s rights organisations, such as the Men’s Rights Agency, claim up to 30 per cent of men in Australia are living with a child they mistakenly believe is their biological offspring. In the past, the group has called for mandatory testing of all babies at birth.

Gilding adamantly disputes this figure and says it is probably closer to between one and three per cent.

“To insist everyone has a paternity test because of that [small percentage] where there is paternal discrepancy is overkill,” he says. He adds that most paternity issues arise during a break-up or strained periods in a relationship.

“The main group of people requesting tests are women who have a child outside of marriage and there is a dispute around paternity and supporting parent’s benefit,” Gilding says.

The next-biggest group ordering paternity tests are men with doubts about whether a child they are caring for is biologically theirs – and this has already been shown to have major repercussions for families.

In November 2011 an Australian woman was ordered to pay her former husband almost $13,000 after he arranged a DNA test that confirmed he was not the biological father of the woman’s 14-year-old son.

Andrea Hayward, director of DNA QLD, a specialist paternity testing facility, agrees that the number of men unwittingly raising children who are not biologically theirs has been over-estimated.

“In our experience, 80 per cent of men get paternity confirmed,” Hayward says. “While there are stories of aggrieved fathers who have spent years paying child support for children they then find are not theirs, for a lot of people, testing is a positive experience.

“Someone may have said something that makes a man wonder whether a child is really his. A test can eliminate doubt.”

— Who gives consent?

Another contentious issue is whether both parents should be aware of a test. Gilding believes there are times when the tests can be carried out without the other parent’s consent.

“I think men have a right to the knowledge of their biological paternity. But they shouldn’t be able to do a test without the mother’s knowledge,” he says.

“Tests can be done in anger. But both parents need to think about their relationship to the child. Trying to humiliate the mother may undermine a father’s long-term relationship with that child,” Gilding says.

— Here to stay

Hayward and Gilding believe paternity testing is generally a positive initiative. Plus, there is no going back now.

“Paternity tests are here. The genie is out of the bottle,” Gilding says. “And for the eight out of 10 men who find they are the father, that’s a cause for relief.”

Nov 222013

MensLine Australia is a professional telephone and online support, information and referral service, helping men to deal with relationship problems in a practical and effective way.

My wife has said she is going to leave me. What do I need to know?

There are three important practical areas you need to consider if you are facing divorce: division of property, maintenance payments and residency of/contact with children. Hopefully you will be able to settle some or all of these matters without recourse to lawyers. This is clearly the preferred option as court proceedings may be lengthy and very expensive. They are also extremely stressful and can involve considerable hostility, which can have a very damaging effect on children caught in the cross-fire. However, even though court should be avoided if at all possible, it is wise to seek legal advice in order to get a clear understanding of your legal rights and responsibilities in the event that matters do have to go to formal proceedings. Note that from July 1st, 2007 it will be a legal requirement for separating couples to go through a mediation process prior to taking their case to court.

After separation, you may be required to pay child maintenance to your ex-wife to contribute to the cost of raising your children. The amount you will need to pay will depend on a range of factors including how many children you have and how old they are, your income, your wife’s income, and the amount of time you spend looking after your children each week. The formula is set by legislation. The Child Support Agency (CSA) is the government body responsible for making assessments and helping separated parents manage their financial responsibilities towards their children. In the event of separation, you will need to make contact with CSA to arrange an assessment. Note that separated parents can also make a private maintenance arrangement without going through CSA, if both parties agree.

Residency and contact arrangements for children are often the area that is most difficult for separated parents. A good idea is to prepare a parenting plan, which is a written, signed and dated agreement outlining care arrangements for your children. The main purpose is to specify who cares for which children and when, but it may also cover such areas as who pays for what expenses, as well as other matters such as choice of school, house rules and so on. A parenting plan is not legally enforceable (unless made before 14th January, 2004), although it can be converted into an enforceable ‘consent order’ if both parties agree. Mediation can help this process if parents are having trouble agreeing or even discussing arrangements.   Contact the Family Relationships Advice Line (1800 050 321), the Family Court of Australia or your local Family Relationships Centre to find out more about how to formalise a parenting plan.

Where can I get legal advice?

Community Legal Centres and legal help-lines offer free legal advice. Legal Aid in your state may also be able to offer free advice. Law associations can usually refer you to a solicitor in your area. Search our services directory for legal services close to where you live. The Family Relationships Advice Line (1800 050 321) also provides legal referrals Australia-wide.

Nov 222013

A pregnant Sydney mother accused of murdering her seven-year-old son will spend her first night behind bars.

The woman, who cannot be named for legal reasons, was arrested at Woodpark in Sydney’s west on Wednesday morning.

The 25-year-old was charged with a range of offences, including murder, production of child abuse material, failure of a person with parental responsibility to care for child, and common assault.

The woman was scheduled to appear in Fairfield Local Court on Wednesday but the matter was adjourned and she will remain in custody overnight.

She will now make her first court appearance along with her boyfriend and co-accused at Parramatta Local Court on Thursday.

A group of female family members along with a baby were in court supporting the woman.

The woman’s 29-year-old boyfriend, who was in jail, was also charged on Wednesday with murdering the child.

Earlier this year the man was charged with 25 offences including assault, child neglect, taking action resulting in injury or sex abuse and producing child abuse material.

The little boy was found dead in the early hours of May 21 in a unit in Oatley, in Sydney’s south.

Family members had called paramedics, telling them the child had sustained head injuries after falling from a pogo stick the previous day.

Detectives will allege the injuries were not accidental.

A court has already heard the boy suffered “deplorable, prolonged abuse”.

He was allegedly reduced to begging for water from shocked campers in the Illawarra two months before he was found dead, the court was told at the man’s September bail hearing.

A police statement of facts previously tendered in court said an autopsy showed three fractured ribs, a bruise in the shape of a fist, feet injuries and bruises to the boy’s legs, back and buttocks that were inconsistent with normal childhood injury.

The boy and his two younger siblings had been previously well cared for, but police allege that changed dramatically after the family moved early this year to the man’s studio, which was windowless and had no toilet.

NSW State Crime Command Homicide Squad Commander Mick Willing on Wednesday described the case as among the most horrific he has ever seen.

“The circumstances surrounding the death of this child involve some of the most distressing acts that we’ve ever seen,” he told reporters.

Lema Samandar, Sophie Tarr and Isabel Hayes

Nov 122013
Federal Circuit Court of Australia

A LITTLE boy will be raised by the “only father he has ever known” after a horrific head-on crash took the life of his mother on a notorious Queensland highway.

The tragedy in 2012 sparked a complex family court row as the “father” and the mother’s family fought for custody of her three children.

In an extraordinary ruling handed down in the Federal Circuit Court of Australia, the boy’s “psychological father” has secured sole parental rights.

The decision has ended a bitter 18 months of litigation centred on the boy, who is the middle child.

He will grow up alongside his younger half-sister, who is the only biological child of the relationship.

A second boy, who is the eldest child in the family, is staying with his maternal grandmother under an agreement with his biological father.

The maternal grandmother had fostered the mother-of-three since infancy. Judge Michael Baumann’s ruling followed her failed attempts to involve the younger boy’s biological father in the court case.

But perhaps the saddest moment was a fight over a lock of the mother’s hair, her hand-prints taken when she died and her jewellery and photos.

“These children have suffered what, in many ways, is likely to be the hardest loss they will ever experience, the death of a loving and caring mother,” Judge Baumann said.

“Surely all the adults in this situation can take steps to heal these rifts and support these three children, as they deserve to be supported.”

In a rare admission, Judge Baumann lamented the court’s decision to order a family report within a month of the accident, with both families still “engulfed by grief”.

Ainsley Pavey

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Nov 062013

JUDGMENT delays in Australia’s cash-strapped family court system have blown out further as judges move to tackle the rising number of cases involving family violence in Australia.

With the Abbott Government foreshadowing $30 million in cuts to the family courts over the next four years, the outlook remains bleak for those families waiting for an outcome.

According to the latest annual reports on the Family Court of Australia and Federal Circuit Court, applications involving family violence have soared to 15 per cent to 403 in the past year.

Family Court of Australia Chief Justice Diana Bryant believes the five per cent jump in applications for final orders involving a family violence notice is due to its definition being widened in last year’s changes to the Family Law Act.

Reports of abuse and violence had been in steady decline in the four years leading up to the reforms.

But new 28-day deadlines for dealing with the matters have had “significant impact” on court resources.

“The requirement of the court to find further efficiencies means that we must continue to look for ways to reduce costs, despite many years of implementing numbers savings initiatives,” Justice Bryant said.

“Considering that the courts have undergone a relentless number of reviews all seeking to identify ways to reduce costs, the reality is that there are very limited reductions to be made without having a serious impact on service delivery, particularly given that more than half of the Family Court’s costs are fixed such as salaries for judicial officers and property expenses.”

A total of $12.2 million in wages was shared among the 30 judges of the Family Court in the last financial year, according to the report.

Justice Bryant said the role of the court was being reduced to a “smaller court which manages all appeals and deals with the most complex famil law cases”.

While the court boasts a high clearance rate for cases, there remains a significant number of cases still awaiting judgment after two years.

Figures showed 11 per cent of litigants still had no judgment after a two-year wait, with 49 per cent of cases waiting for more than three months.

The court met only three out of seven KPIs, failing to deliver on promised final and interim order targets.

A total of 3,067 final orders and 3,419 interim orders were handed down.

The majority of cases settled before final judgment, with 14.6 per cent needed a judgment.

Property disputes were the most common – a total of 52 per cent of all cases requiring a ruling.

Meanwhile, the number of appeals fell 13 per cent to 326, with a slight increase in males (60 per cent) over females (37 per cent) seeking to overturn decisions.

The caseload is in stark contrast to the “workhorse” Federal Circuit Court, which litigated 89,599 cases.

The work was shared between 64 judges, including 23 females and 41 males.

They met two of performance goals, with less than one per cent of matters litigated being subject to complaint (0.19 per cent) and 60 per cent resolved before trial.

But the court fell short of a deadline of six months in 90 per cent of cases being finalised, managing only an 83 per cent completion rate.

A total of 172 complaints were also lodged, including 81 for late judgments.