Mitch Patterson Ref: XXXX 27 July 2020 Dear Mitch, RE: CHILD SUPPORT AND PARENTING ADVICE KHALEESI Thank you for coming to see me on 26 July 2020. The following is advice about the child support and parenting matters we discussed. Presumption of Parentage You have received a Child Support Assessment stating that you must pay $70 a week for the financial support of Khalessi. Under the law there is a presumption that you are the parent of the child because you lived with the mother during the period from 44 weeks to 20 weeks before the birth.1 This presumption can be overturned if the court makes an order that you should not have been assessed to pay child support as you are not the parent of the child.2 I would recommend we firstly write to Bianca asking whether she is prepared to agree to DNA testing to clarify the paternity issue so that testing can occur quickly. DNA testing costs $550, the results are usually returned in 5 days and we could ask Bianca whether she is prepared to, and can afford to, share the cost. DNA Testing: Shows you are the Father If the test results show that you are the father you will have a duty to maintain Khaleesi until she turns 18.3 It does not matter that you and Bianca did not discuss having a child or that you did not consent to her becoming pregnant. 1 Child Support (Assessment) Act 1989 (Cth) s 29(2)(h). 2 Child Support (Assessment) Act 1989 (Cth) s107. 3 Child Support (Assessment) Act 1989 (Cth) ss 3, 12. Commented [AB1]: STARTING FORMALITIES: Professional formatting. Here we have clients name, reference number, date and salutation. Commented [AB2]: Heading outlining the nature of the clients issue Commented [AB3]: INTRODUCTORY PARAGRAPH: This section basically sets up what has happened before and what the advice will be. Depending on your assessment instructions you may have to put in material facts in this section. Commented [AB4]: NUMBERING OF HEADINGS. Whether you will have to number your headings will be dependent on the instructions you will be given. Commented [AB5]: BODY PARAGRAPHS: These outline what the law is and how it can be applied to the client. Most of these use the formula of ISAAC ISSUE, STATE THE LAW, GIVE AN AUTHORITY, APPLICATION, CONCLUSION (in practice an authority would not generally be given to a client apart from maybe a mention of the relevant overarching Act such as the Family Law Act 1975 (Cth), whereas if this was a letter to another practitioner the legislation, sections and case law would be mentioned). Commented [AB6]: You can see that the heading basically states what issue you are dealing with. This is extended with a brief discussion of the facts that have raised that issue. Commented [AB7]: Here is your statement of the law and an application to the clients circumstances. Commented [AB8]: Here is your conclusion/advice on this section. Commented [AB9]: Again, your heading acts as your Issue. Commented [AB10]: PERSONALISE YOUR WRITING TO THE CLIENT. In this paragraph you can see a number of statements of the law. Notice that the writer has made it personal to the client so it is more understandable and relatable. Services Australia (SA) will regularly issue you with child support assessments setting out the amount payable. 4 This is calculated using a complex formula which considers the earnings of each of the parents,5 the amount of time each parent has care of the child,6 and the deemed cost of maintaining the child depending on her age.7 If you do not make these payments you will owe a child support debt to Bianca.8 If Bianca asks the CSA to collect the payments they can organise for regular amounts to be deducted from your wages.9 The CSA also has power to deduct any outstanding payments from third parties,10such as any tax refund you may receive from the Australian Taxation Office. 11 DNA Testing: Shows you are not the Father If the test results show that you are not the father the child support assessment could be overturned if Bianca voluntarily elects to end the assessment.12 However, you advised that Bianca is in receipt of an income-tested pension which means that she can only end the assessment with the consent of Centrelink. In our experience it is not likely that Centrelink will agree to end an assessment and therefore you will need to make a court application to overturn it. 13 The Court Application If the results show you are not the father or, if Bianca will not agree to cooperate with DNA testing, you will need to apply to the Federal Circuit Court to resolve these issues. In the application you would need to apply for the following orders: A declaration that the CSA should not have issued you with a child support assessment as you are not a biological parent14; 4 Child Support (Assessment) Act 1989 (Cth) s 34A. 5 Child Support (Assessment) Act 1989 (Cth) ss 35, 41-47. 6 Child Support (Assessment) Act 1989 (Cth) ss 49-54E 7 Child Support (Assessment) Act 1989 (Cth) ss 55F-55HA. 8 Child Support (Assessment) Act 1989 (Cth) s 77(2). 9 Child Support (Registration and Collection) Act 1988 s 64. 10 Child Support (Registration and Collection) Act 1988 s 72A. 11 Child Support (Registration and Collection) Act 1988 s 113. 12 Child Support (Assessment) Act 1989 (Cth) s 12(4). 13 Child Support (Assessment) Act 1989 (Cth) ss 151A(2)-(4). 14 The court has power to make an order that you should not have been assessed as a liable parent for the childs support Child Support (Assessment) Act 1989 (Cth) s 107. This must be made as a court Commented [AB11]: Footnotes contain the authority for your statements of the law. Commented [AB12]: While this paragraph doesnt really have a conclusion it is giving advice to the client by looking at the legal or practical impact of any of their behaviour. For eg If you dont make the payments you will owe a debt. Commented [AB13]: LOVELY USE OF ISAAC HERE. The heading and first page outline the issue. There is a discussion of the law in the context of the clients circumstances. Then there is a conclusion/advice at the end regarding the likely outcome. REMEMBER, using ISAAC makes sure that you include all the relevant information and give the best advice possible. It makes your writing logical and clear. Commented [AB14]: DOT POINTS. Dot points are great to make clear to a client what steps may need to be take. Reading huge paragraphs can detract from a clients understanding of what the law says and what may need to be done in the future. Use them wisely as too many can be confusing. That DNA parentage testing occur (if Bianca will not agree to testing); 15 and That the child support assessment payments will be stopped until a final court decision is made.16 This application to the court must be made within 28 days of the date of the letter your received from the CSA. 17 Until a court makes an order stopping payment, you have an obligation to pay the $70 per week. You should make these payments as the assessment is enforceable, and a failure to make the payments may result in collection or enforcement proceedings being brought against you. 18 To convince the court to make an order for DNA testing we would need to produce evidence that there is reasonable doubt about Khaleesis paternity.19 You advised that Bianca sent you an electronic message stating that she was seeing another man at the time of conception. If we can produce a copy of this message, the court may accept there is reasonable doubt and make an order for testing. The court often asks parents to share the cost, however, this is dependent on their financial means. Possible Recovery of Child Support Payments If Bianca fails to comply with the orders for testing, a court may draw the conclusion that it is likely that you are not the father.20 If the DNA testing shows that you are not the father, you may be able to recover the child support that you have already paid.21 However, recovery of payments is discretionary and takes into account a number of factors such as whether Bianca knew or suspected that you were not the father, any delay that may have occurred in the making application as the child support agency objections process cannot be used. Bixby and Farraday (SSAT Appeal) [2009] FMCAfam 647. 15 Family Law Act 1975 (Cth) ss 69W, 69Z. 16 Child Support (Registration and Collection) Act 1988 s 111C. 17 Federal Circuit Court Rules 2001(Cth) r 25A.06. 18 Australian Solicitors Conduct Rules 2012, r 20.3. 19 Diggins & Diggins (1992) FLC [92-299]; See also Duroux & Martin (1993) FLC [92-432], F & R (1992) FLC [92-300]. 20 G v H (1994) 181 CLR 387. 21 Child Support (Assessment) Act 1989 (Cth) s 143(1). Commented [AB15]: TIME LIMITS AND OTHER PRACTICAL OR PROCEDURAL MATTERS. Dont forget to make it clear to your client what needs to be done and when. Commented [AB16]: Again, this is another important point. If the client doesnt pay weekly they may be up for a large sum. Commented [AB17]: ISAAC again. The issue is when the court will make an order. The law is that evidence needs to be produced about paternity. The authority is in the footnotes. The law is applied to the facts. A advice/conclusion about producing a copy of the message is provided. of your application to the court, whether another man can be assessed as the liable parent and the financial circumstances of both you and Bianca. 22 Your Parenting Responsibilities if you are Khaleesis Father If you are found to be the biological father, in family law, the childs best interests are the paramount consideration.23 Guidance about what will be in Khaleesis best interests is set out in what are termed the, best interest factors in the Family Law Act 1975(Cth). 24 These are divided into the primary25 and additional considerations.26 The primary considerations are that: (i) Khaleesi should have the opportunity to have a meaningful relationship with both her parents; (ii) Provided that, in maintaining these relationships, she is safe and well cared for; (iii) In applying these considerations her safety and wellbeing is to be given priority.27 The additional considerations are attached and include regard to the nature of the relationship between both parents and Khaleesi and the attitude of each parent to parenthood. We would encourage you to consider approaching Bianca to have some discussions about how you could gradually develop a relationship with Khaleesi. As she is a young baby, this may involve initially spending small amounts of time with her during the day, with the time gradually increasing as she grows older. In relation to decision-making, both parents generally have what is termed equal shared parental responsibility for their child.28 This means they should consult with each other and make a genuine effort to reach agreement about major-long term decisions, such as where Khaleesi will 22 Child Support (Assessment) Act 1989 (Cth) s 143(3B). 23 Family Law Act 1975(Cth), s 60CA. 24 Family Law Act 1975(Cth), s 60CC. 25 Family Law Act 1975(Cth), s 60CC(2). 26 Family Law Act 1975(Cth), s 60CC(3). 27 Family Law Act 1975(Cth), s 60CC(2A). 28 Family Law Act 1975(Cth), s 61C. Commented [AB18]: DONT USE JARGON. REMEMBER WHO YOUR AUDIENCE IS. Notice that throughout this letter no jargon or legalistic words are used. This is because your client is not a lawyer. You have to keep in mind your audience and style of writing in order to make your letter clear and understandable. Commented [AB19]: If there is extra information for the client make sure you make it clear. attend school.29 If you would like to enrol Khaleesi in a sporting team, you will have to consult with Bianca and make a genuine effort to reach agreement. Involvement in sporting activities usually involves both parents, as Khaleesi would need to attend training and possibly match commitments each week. Dispute Resolution If the DNA test finds that you are Khaleesis father and you and Bianca are unable to agree on parenting arrangements you are required to attend mediation to assist in reaching agreement. 30 Exceptions to this approach, such as issues of family violence or urgency, do not apply here.31 Mediation is a structured negotiation process with an independent third party, a mediator, assisting you and Bianca to have discussions.32 We attach the Marriage, Families and Separation brochure33 which provides you with information about the available counselling and mediation services. Recommended Next Steps In summary, based on the information we currently have, our advice is: The first step should be to ask Bianca if she will agree to undergo DNA testing. You may like to have this discussion directly with her or we could contact her in writing if you would prefer. If Bianca wont agree to undertake testing and you have to file a court application seeking an order for testing, you have reasonable prospects of obtaining the order, provided we can produce the electronic message to the court. However, we cannot guarantee this outcome and, if there is further evidence to support this, you should advise us. 29 Family Law Act 1975(Cth), s 65DAC. 30 Family Law Act 1975(Cth), s60I(1). 31 Family Law Act 1975(Cth), s60I(9). 32 Family Law Act 1975(Cth), s10F. 33 Family Law Act 1975(Cth), ss12B and 12E. Marriage, Families and Separation (prescribed brochure), Federal Court of Australia (Web Page, 4 August, 2020) . Commented [AB20]: PENULTIMATE PARAGRAPH. This is your overarching advice. NOTE THAT THE ENTIRE LETTER AND PARAGRAPHS USE ISAAC AS A STRUCTURE. The beginning of the letter outlines the issue. The body paragraphs talk about the law, authorities and facts. The penultimate paragraphs provides advice and a conclusion. The result of the DNA testing will determine your liability to pay child support. If you are found to be Khaleesis biological father you will need to continue to pay child support. Conversely, if testing occurs and you are found not to be the biological parent, your application to court to overturn the child support assessment would be successful and you will not have to make further payments. If the DNA testing shows that you are not the father and you have already paid some child support, you can seek that the money be paid back but the court will decide whether to make this order. Biancas financial circumstances will have a significant impact on the result. Costs Agreement We attach our costs agreement that sets out the hourly amount that we will charge if you decide to instruct us to write to Bianca. It also sets out the types of future charges that may be involved, such as court filing fees.34 You will need to sign and date this and return it to our office if you would like us to act for you. Questions or Concerns Please call me on 3138 5555 if you have any questions or would like to instruct us to write to Bianca. Yours faithfully John Black Junior Solicitor 34 Legal Profession Act 2007(Qld), Part 3.4. Commented [AB21]: Inclusion of costs agreement is required by law. BUT may not be required in some client letter assessments. Check your instructions. Commented [AB22]: FINAL FORMALITIES. Give the client your details, sign off with your name and position. BIBLIOGRAPHY A Articles/ Books/ Reports Fehlberg, Belinda and Juliet Behrens, Australian Family Law: The Contemporary Context, (Oxford University Press, 2nd ed, 2014). Harland, Alex et al, Family Law Principles (Lawbook Co. 2nd ed, 2015). Parkinson, Patrick, Australian Family Law in Context; Commentary and Materials (Lawbook Co, 7th ed., 2019). Young, Lisa, Australian Family Law (LexisNexis Butterworths, 9th ed, 2016). Chisholm, Richard, Parentage: Some Testing Problems (2010) 24 Australian Journal of Family Law 242. Department of Human Services, Child Support update: Parentage and Child Support (2012) 2 Family Law Review 185. Department of Human Services, Child Support: Amendments to Child Support Legislation Relating to Declaration of Non-Parentage (2013) 3 Family Law Review 100. B Cases Ames v Ames (2009) 42 Fam LR 95. B v M [2003] FMCAfam 113. Bixby and Farraday (SSAT Appeal) [2009] FMCAfam 647. Brianna v Brianna [2010] FamCAFC 9728. Child Support Registrar and Farley [2011] FamCAFC 207. Diggins & Diggins (1992) FLC [92-299]. Duroux & Martin (1993) FLC [92-432]. F & R (1992) FLC [92-300]. Fewster and Drake [2018] FCCA 3194. G v H (1994) 181 CLR 387. Mercer v Child Support Agency (2004) 32 Fam LR 129. OP v HM (2002) 168 FLR 465. Macaulay v Jessop [2018] FCCA 124. Re D (Paternity) [2007] 2 FLR 26 Tryon v Clutterbuck (2007) FLC 93-332. V v V [2002] FMCAfam 408. Y v Y [2001] FMCAfam 258. C Legislation Family Law Act 1975(Cth). Child Support (Assessment) Act 1989 (Cth). Child Support (Registration and Collection) Act 1988 (Cth). Legal Profession Act 2007 (Qld). Australian Solicitors Conduct Rules 2012 (Cth). Federal Circuit Court Rules 2001 (Cth). E Other CCH Online Service, Family Law, Australian Child Support Commentary. Marriage, Families and Separation (Prescribed Brochure), Federal Court of Australia (Web Page, 4 August, 2020).

Attachments:

letter-of-adv....pdf

letter-of-adv....docx