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Unjust Child Support Assessments: A Child Support Lawyers Guide

The Child Support Assessment Act allows the Registrar to change a child support assessment if the assessment of child support results in an unjust and inequitable level of financial support being paid. Child support lawyers can challenge a child support assessment on limited and specified grounds which can include:

  1. The circumstances of either parent’s income, property or  financial resources
  2. The earning capacity of either parent
  3. The costs of contact for either parent
  4. The expenses of the child or children including in some circumstances their education expenses

Some of these grounds are considered below.

1. Income, Property and Financial Resources

A common issue concerning the income, property and financial resources of a parent is when the income of one parent is significantly higher or lower than the amount recorded in the actual assessment.

There can be all sorts of reasons why the tax return and or notice of assessment does not reflect the actual income of the parent.

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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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Tougher Penalties under the Australian Consumer Law

The Treasury Laws Amendment (2018 Measures No. 3) Act 2018 (Cth) has introduced new tougher penalties for companies and individuals who breach certain provisions of the Australian Consumer Law (ACL).

What are the new penalties for companies?

The new maximum penalty for companies is the greater of:

  • $10 million; or
  • 3 times the value of the benefit directly or indirectly obtained by the company (and any related companies) which is reasonably attributable to the offence; or
  • if the value of the benefit cannot be determined, 10% of the annual turnover of the company (and any related companies) for the 12 month period leading up to the commission of the offence.

Previously, the maximum penalty for companies was $1.1 million.

What are the new penalties for individuals?

The new maximum penalty for individuals is $500,000 (up from the previous maximum of $220,000).

Multiple Penalties

The maximum penalties will apply to each contravention, so companies and individuals could potentially face massive fines if they commit multiple contraventions of the ACL.
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Directors: Beware of relying on the advice of others!

In the exercise of their duties, company directors often rely on both internal and external sources of advice.  However, directors may be liable if their reliance on the advice of others is “unreasonable”.

What does the Corporations Act say?

Section 189 of the Corporations Act states that a director may rely on information, or professional or expert advice, given or prepared by:

  • an employee of the company whom the director believes on reasonable grounds to be reliable and competent in relation to the matters concerned
  • a professional adviser or expert in relation to matters that the director believes on reasonable grounds to be within the person’s professional or expert competence
  • another director or officer in relation to matters within the director’s or officer’s authority
  • a committee of directors on which the director did not serve in relation to matters within the committee’s authority

provided that:

  • the reliance was made in good faith and after making an independent assessment of the information or advice, having regard to the director’s knowledge of the company and the complexity of the structure and operations of the company
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Double Whammy! When cost orders become a further debt

By Hayley Hitch a Solicitor of Matthews Folbigg Lawyers in our Insolvency, Restructuring and Debt Recovery Group

In one of our recent matters, proceedings were commenced against a debtor, and the relevant guarantor, in the Local Court of NSW for recovery of a debt, being non-payment of services rendered by our client to the debtor.

Local Court proceedings

The defendants were at all times self-represented in those proceedings and took steps to file defences, out of time (and without leave) and also failed to appear in Court on several occasions. This ultimately led to:

  1. the defences being struck out;
  2. cost orders being made against the defendants; and
  3. Judgment being entered in favour of our client in the vicinity of $40,000.

Multiple attempts were then made by one of the defendants to set aside the default judgment and the various cost orders.

The last of these applications was held by the Local Court to be an abuse of process and the Court strongly urged the defendant to obtain legal advice before taking any further action.
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Debt Collection – How not to

By Darrin Mitchell, Senior Associate at Matthews Folbigg in the Insolvency, Restructuring and Debt Recovery Group

Credit Managers and anyone responsible for debt collection or credit control in a business organisation should be aware of the right and wrong ways to collect a debt.

In a recent decision of the Federal Court of Australia in Australian Competition and Consumer Commission v ACM Group Limited (No 2) [2018] FCA 1115 the Court was critical of the actions by a collection agency in the pursuit of a debt.  By example, the Court held that the agency was relentless in telephoning a care facility on over 40 occasions to attempt to speak with a stroke victim patient whose telecommunications debt was unpaid, saying that high-pressure debt recovery techniques are inappropriate.

The Court was also critical of letters of demand that over capitalised statements such as “NOTICE OF INTENTION TO COMMENCE LEGAL PROCEEDINGS”.  It said that the continued dispatch to a customer of letters that use of the words “intention” and “may” to threaten legal action was conduct that was misleading and deceptive within the meaning of the Australian Consumer Law and unconscionable.
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