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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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How a Divorce Lawyer can assist when you have been married for less than two years but seek a divorce

A divorce lawyer will be unable to lodge your application for divorce orders if you have been married for less than two years unless you satisfy the counselling requirement. Parties married for less than two years must provide a counselling certificate with their divorce application in order for it to be considered by the Court.

What is a counselling certificate?

A counselling certificate must be signed by an approved counsellor. This certificate sets out that the parties with the counsellor’s help have considered reconciliation without success.

Exceptions to the counselling requirement

The requirement for a counselling certificate can be waived if the Court is satisfied that special circumstances exist that warrant the divorce application to continue regardless.

It is not clear what scenarios will fall into the category of special circumstances affording dispensation. In the case of Nuell and Nuewll (1976), Justice Fogarty held that it was enough that both parties were not interested in attempting counselling. Contrastingly, in other cases such as Philippe and Philippe (1978) and Malyszko and Malyszko (1979), the Judges have held that special circumstances are facts that are peculiar and depart from the norm.

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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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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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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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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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