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Child Custody Laws and Independent Children’s Lawyers

An independent children’s lawyer, also known as an ICL, is a Court-appointed lawyer who acts independently to represent the child’s interests in family law proceedings regarding child custody laws. The child, an organization concerned with the welfare of the child or any other person may apply for an ICL to be appointed. The Court may then make an order to appoint an ICL who will attempt to find out what the views of the child are.

The Full Court in Re K [1994] FamCA 21 provided some guidance on what the court might consider when appointing an ICL in matters involving child custody laws, including:

  • Alleged child abuse
  • Unsuitability of either parent
  • Parental conflict
  • Proposal to relocate the child far away
  • Alienation from a parent
  • A parent’s sexual preferences
  • Special medical procedure for the child

Role of the ICL

The role of the ICL is not to take instructions from the child, but rather, to represent the child’s best interests. The ICL should form an independent view of what is in the child’s best interests according to the evidence, act in the child’s best interests and make submissions to the Court regarding the child’s best interests. The child’s best interests must be distinguished, however, from the child’s wishes. An ICL is not obliged to follow the child’s wishes and may disclose information about the child against their wishes if necessary.

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Divorce Lawyer Advice for when you can’t locate your ex-partner to serve divorce papers

Service is the sending or giving of filed court documents to the opposing party. Proof of service of the divorce application is one of the procedural requirements asserted by the court that must be complied with in order for the court to grant the divorce.

What options exist if you cannot serve the divorce application on your former spouse?

Once you have made all reasonable attempts to serve the divorce application, you make seek the assistance of a divorce lawyer who can apply to the court for either substituted service or dispensation of service.

Substituted service allows you to serve the documents on a third party who the Court is satisfied will bring those documents the attention of your former spouse.

Dispensation of service is where the Court is satisfied that you have made all reasonable attempts to locate  your spouse in attempt to serve the divorce application, and as a result the Court says that you do not need to serve the documents.

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Why a divorce lawyer considers arrangements for children when completing your divorce application

The Family Law Act provides that a divorce order will not be ordered unless the court is satisfied that, amongst other things, that proper arrangements in all the circumstances have been made in relation to the welfare of any children of the marriage who have not yet obtained the age of 18 years old.  Where the Court has concerns as to the arrangements for any children involved, it is able to adjourn the divorce proceedings until the Court is satisfied proper arrangements have been put in force. This concern of the Court may be met by obtaining a report from a family consultant appointed by the Court. It may be the case that where there are children under 18 years involved, the parties will have already commenced parenting proceedings with the Court. If so, the Court may find that is sufficient enough to determine that proper arrangements are in the process of being made or could make an “alternate declaration”. An alternate declaration means that although the Court has found the arrangements for the care of the children are not proper, in all the circumstances of the case there are grounds still to proceed with the divorce. However, this will not always necessarily be the case and as such you should seek advice from a divorce lawyer.

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Divorce Lawyer Explains Resumption of Cohabitation

Once a divorce lawyer has proved that you and your former partner have separated, your divorce lawyer must then prove to the court that there is no likelihood that your cohabitation will resume. Resumption of cohabitation involves the re-establishment of the relationship to the point that it reverses the separation.

What happens to the 12 months separation if you and your ex-partner try to make things work again?

The Family Law Act promotes reconciliation where possible. For this reason, Section 50 of the Family Law Act permit couples to resume cohabitation during their 12 months separation however it must only be for one intervening period of less than 3 months for it not to “re-start” the 12 month separation period.

For example, a couple who  have been separated for 2 months, then attempt to reconcile for a period of less than 3 months. After the 2 months of reconciliation, one or both of the spouses decides that the marriage is still not working out. In this case, the original date of separation will stand and the parties will be able to continue the remaining months left to satisfy the required 12 month separation with it only being extended by the attempted reconciliation period of 2 months.

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Reaching a Property Settlement Agreement through Family Law Arbitration

There are numerous methods aside from traditional Court determinations which parties can utilise when seeking to reach a property settlement agreement. Section 10L of the Family Law Act 1975 defines arbitration as “a process (other than the judicial process) in which parties to a dispute present arguments and evidence to an arbitrator, who makes a determination to resolve the dispute.”

How do Arbitrations operate?

Arbitrations are available for property and financial matters and are voluntary. A matter may also be referred by a court order. They can take place before, during or after proceedings have commenced.

Arbitrations may either determine entire financial or property disputes, or alternatively they can focus on specific aspects of the dispute.

The parties have flexibility in preparing a written arbitration agreement before the arbitration commences to determine the constraints and process of the arbitration.

Are Arbitral determinations final?

Once arbitration has finalised, the arbitrator will make an arbitral award. An arbitral award is final and upon registration, it has the same impact and enforceability as an order of the Court.

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Collectables and your property settlement agreement

Whether you collect postage stamps, designer handbags, books, art or cars, don’t underestimate the value of your little hobby when it comes to a property settlement agreement.

In the recent case of Isaacson [2019], Judge Wilson considered a property settlement agreement dispute between a former husband and wife, as to the value of the husband’s book collection. The husband alleged the book collection to be worth $183,905.00 and the Wife believed it to be worth $384,421.00.

Both parties sought to rely on their own “expert” evidence as to the apparent value of the book collection.  This is where the case highlighted the importance of seeking legal advice when intending to use expert evidence to ascertain the value of collectables in a property settlement agreement.

The Husband’s “expert” provided the Court with a 97 page affidavit pertaining to his opinion as to the value of the book collection. The affidavit of the Husbands “expert” failed to address the elements of his training, study or experience which are required to be satisfied in order to deem a witness to be qualified as an expert. The Court consequently found the Husbands alleged expert evidence to be deemed inadmissible.

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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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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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