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Child Birth Maintenance: Covering the Cost of Having Your Child

You might have heard of spousal maintenance, but few have heard of the term “child birth maintenance.” Child birth maintenance is different from both spousal maintenance and child support because it is specifically concerned with supporting women through the birth of their child. Family law lawyers explore this topic below.

The Family Law Act s 67B states that a father (who is not married to the child’s mother) is liable to make a proper contribution towards:

  • The maintenance of the mother for the childbirth maintenance period in relation to the birth of the child, and
  • The mother’s reasonable medical expenses in relation to the pregnancy and birth.

The Childbirth Period

The childbirth period is defined as two months before the child is born (unless a doctor advises the mother to stop working for medical reasons prior to this) to 3 months after the child is born.

What Kinds of Expenses?

When deciding what expenses can be accounted for, Judge Demack in Millar & Johnston [2015] FCCA 543 (13 March 2015) suggested family law lawyers need to distinguish between items that have been purchased for the mother or the child. Items purchased for the child would rather come within the scope of child support.

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Family Violence And Decisions About Children

Defining Family Violence

The Family Law Act 1975 (Cth) s 4AB defines family violence as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.” Family violence is not limited to physical abuse and may also include psychological, economic, sexual, and social abuse. Examples of behaviour that fall within the definition of family violence include:

  • Assault
  • Sexually abusive behaviour
  • Stalking
  • Repeated derogatory taunts
  • Intentionally damaging or destroying property
  • Preventing the family member from keeping connections with family, friends or culture, and more.

Presumption of Equal Shared Parental Responsibility and Family Violence

When making decisions about children in the family court system, the paramount consideration is the child’s best interests. There is a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility until the child reaches 18 years of age. Note that parental responsibility does not relate to the time spent with the child, but rather relates to all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Parental responsibility allows parents to make major long-term decisions about their children. For example, parents with parental responsibility can make decisions about a child’s education, religious and cultural upbringing, health, name and living arrangements.
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Property Settlement Agreement – Can the Court Split Employment Bonuses?

What is Property?

When negotiating a property settlement agreement, one of the first steps to be considered is what property you and your former spouse have or own. This step is important as only property can be subject to a property settlement agreement. The Family Law Act defines property as “any property in the possession of either party, either vested or in remainder.”  Property of the relationship generally includes:

  • All assets that are owned, g. the family home, motor vehicles, personal items
  • All assets under your control, e.g. a business, superannuation, shares and funds at bank
  • All liabilities, e.g. mortgages, credit cards, hire purchase agreements

Are Employment Bonuses Property?

In the case of Ilannello & Ilannello (No 3) [2018] FCCA 3752 (19 December 2018) the Court considered the question of whether the wife’s future employment bonus payments could be the subject of a property order.

Facts of the Case

In this case, the husband had suffered a workplace accident and had been unemployed since 2013. The husband was living on a permanent disability payment from his super fund. While he owned about $78,000 in shares, he claimed that his legal fees were equally as much. On the other hand, his wife had a base salary of $190,000 per year plus employment bonuses. In the previous year, the wife received $54,000 in bonuses.

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Mediation and Your Family Law Dispute

Mediation and Your Family Law Dispute – Agreements that Suit Your Needs

WHAT IS MEDIATION?

Mediation is an alternative way to determine a family law dispute outside of the courts. The Mediator Standards Board defines mediation as: “a process in which the participants, with the support of the mediator, identify issues, develop options, consider alternatives and make decisions about future actions and outcomes.”

It is a process of problem-solving that is guided by an impartial third party called a mediator.

WHAT DOES A MEDIATOR DO?

In family law, the role of the mediator is to facilitate the process of dispute and conflict resolution while the content of the discussions rests with the parties. The mediator can assist the parties to clarify the most pertinent issues and consider ways to resolve these issues. A mediator will not, and cannot, give advice about your dispute or determine the dispute for you.

HOW IS MEDIATION DIFFERENT FROM COUNSELLING, CONCILIATION OR ARBITRATION

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Judicial Mediation: A New Option To Resolve Your Dispute

As of 1 January 2019, parties to a family law dispute and their marriage lawyer, in appropriate cases, may now have the option of Judicial Mediation in the Federal Circuit Court of Australia. Judicial Mediation is not intended to replace or substitute private mediation. Rather, the court expects that parties to a family law dispute exhaust all mediation alternatives, such as private mediation with a private mediator, prior to Judicial Mediation.

The Judicial Mediator

The Judicial Mediator may not be the Judge that would ordinarily determine the family law dispute. This Judge is referred to as the Docket Judge. Where both Judges consent, the Docket Judge may refer the proceeding for Judicial Mediation to another Judge.

How to Initiate Judicial Mediation

Judicial Mediation can be initiated in two ways. Firstly, you or your marriage lawyer can make an oral application in court. Alternatively, you or your marriage lawyer may apply for judicial mediation in writing to the Docket Judge. The written application must include a brief summary in bullet point format addressing why the matter is suitable for Judicial Mediation.

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Domestic Violence and Family Law

Domestic Violence can affect people of all ages, socioeconomic and demographic groups and unfortunately can often go unreported particularly when it occurs during a relationship with a spouse or partner. However it is not uncommon for historical and current domestic violence to come to light particularly in circumstances of a family law separation. In June 2012, the definition of family violence was amended to include other behaviours that constitute family violence.

The Family Law Act defines Family Violence as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful”. The legislation includes behaviours such as stalking, repeated derogatory taunts, intentionally damaging property, causing death or injury to an animal and unreasonably denying a family member of their financial autonomy. With respect to children, the legislation also states that “a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence”.

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Child Support Lawyers can help to challenge your assessment

If you are unhappy with your child support assessment, your child support lawyers can apply to the Registrar for a change of assessment in special circumstances. Although the Child Support Act does not define the meaning of ‘special circumstances’, the Family Court indicates that something special or out of the ordinary is required: Gyyselman and Gyselman (1992) FLC 92-279. The Registrar only has the power to make a change of child support assessment for 10 discrete reasons. These are:

  1. The costs of spending time with or communicating with the child(ren) are more than 5% of your adjusted taxable income amount
  2. The child(ren) has special needs
  3. There are extra costs in caring for, educating or training the child(ren) in the way both parents intended
  4. The child(ren) has income, a earning capcity, property and/or financial resources
  5. You have provided money, goods or property for the benefit of the child(ren)
  6. The costs of child care for the child(ren) under 12 years of age has changed
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Family Law, Creditors and other third parties

Family Law, Creditors and other third parties

Typically, family court proceedings involve two parties, namely married or de facto spouses in a property related matter, or two parents in a parenting matter. Additional parties may be joined to parenting proceedings in particular circumstances, such as grandparents or another person concerned with the care, welfare and development of the child or children.

In property matters, third parties may also be joined as parties to the proceedings in a number of circumstances. Some examples of third parties that may be joined to the Family Court property proceedings include:

  • Creditors of the spouses or their related corporate entities
  • In some cases the ATO
  • Co owners of any real estate or other asset including corporate interests
  • Companies or trust entities that are connected to the parties or where the parties have a financial connection

What type of orders can the Court make against a creditor or third party?

  • Once they are a party to the proceedings the court can make orders that effect the rights of the third parties including
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