Who pays birth expenses?

Almost hidden amongst the 698 sections of the Family Law Act are six little used sections on the father’s liability to contribute towards the child bearing expenses (including wages and medical expenses) if he is not married to the mother of the child.

I say little used as in a database search I could only find 3 reported cases that dealt with the issue at all – and none on this issue specifically.

However, a recent case from the Federal Circuit Court has served as a reminder of the potential of this small part of the Act. The case is Abrahams and Simm [2014].

In that matter the mother made an application to the Court for “childbirth maintenance” in relation to a child who was born in 2012.  The parties separated prior to the birth of the child.

The mother sought a total of $27,061, being $15,610 for maintenance for her and $11,451 being medical expenses in relation to the pregnancy and birth. The mother submitted that she had properly identified and particularised the costs associated with the pregnancy and birth of the child. She further submitted that the costs and expenses claimed were reasonable in all the circumstances.

The father acknowledged that he was the father of the child and proposed that he pay the mother the sum of $7,000. The father also sought that the mother pay his legal costs for the matter. The father submitted that the mother’s evidence was lacking in justifying all of the items claimed (e.g. there were no pay slips), not all of the items claimed were reasonable, his uncommitted income did not enable him to pay and he should be responsible for half of the expenses properly assessed not the whole amount.  The father also claimed that the mother’s entitled to the “Baby Bonus” should be factored in.

The Court ordered that the father pay the mother the sum of $14,000.

The Court found that a number of the medical expenses claimed by the mother were not reasonable, including a “doula” and a “settling swing”. Additionally, the Court agreed with the father that he should not have to pay for the total of the expenses – only half. The Court rejected the father’s claim that the mother’s entitlement to government benefits, including the “Baby Bonus” should be taken into account. This is in line with section 67C of the Family Law Act which expressly states that the Court must disregard any such entitlement.   

It will be interesting to see if more cases appear relying on these sections.

 

Of note, there is also scant cases on obligations to pay child birth expenses for people who are married and separated (which are covered by other parts of the Family Law Act).

The views of a child

The Family Law Act provides that the views of a child can be considered in determining what arrangements are in their best interest following the separation of that child’s parents.

The Courts most often obtain the views of a child with the assistance of an expert counsellor who will meet with the child in an environment far less stilted and foreign than a courtroom and talk to the child about their relationship with both parents and any other concerns they may have about future arrangements. That counsellor then prepares a report for the Court.

A child won’t be required to give evidence in a courtroom. This is due in great part to a concern as to the psychological harm it would do a child to have to sit in front of both parents and state a preference between the two of them. But it is also done this way – through the help of experts – precisely because the counsellor’s are experts – they have the skills to ask trick questions and listen for an answer that may be hidden.

Time and again the view provided by a child to a Court counsellor will be a shock. Not necessarily to the Judge, or even the lawyers, but to the parents themselves.

This shock is somewhat an understandable reaction to a very stressful and emotional situation - by the time a matter has reached final hearing parents are usually entrenched in their dispute. They have formed a firm view on why they are right and why the other parent is wrong.

But central to family law litigation is a child. A child who may have been expressing their view all along.

In a case from late last year, Delahunty & French, the Court went so far as to rebuke both parents for their lack of focus on their child.

In that case, the Court appointed expert, known as Mr P, became aware of a story that the child had written at school. The Court noted that while this piece of writing may not have concerned the teacher or the school, it was certainly of concern to Mr P.

The heading of the document was “children should have a say.” The child wrote that adults buy and build houses and children should at least get an opportunity to decide where they lived and who they wanted to live with.

In delivering judgment the Court noted that much of the evidence was about the parents “even though they may not have seen it that way”. The Judge noted that the child had witnessed many very bitter exchanges between her parents, including on one occasion when the police were called to her school assembly and following one such incident the Court noted "the parties had a dispute about what had happened in emails thereafter and again. it had nothing to with the child."

So how can you spot the views of a child during a dispute without it ever getting to the point that the parties in Delahunty & French did?

I think some clues can be found in the phrases I have seen repeated time and again over the years:

• “Please stop talking badly about each other in front of me. Even though you hate them they are still my parent. It makes me feel bad when you talk about them like that.”
• “Please don’t talk about me as if I need to be managed. If I hear that you would rather go away with the girls on “your weekend” I feel like you don’t want me.”
• “Stop telling me I’m being dramatic. I’m just sad/scared/hurt/frustrated/ disappointed/angry/depressed about what is happening.”
• “When all you talk about is who is getting the house or the car or the fridge I think that all you care about is stuff and not me.”
• “Please don’t throw away a gift I receive from them. It makes me feel like I can’t share happy things with you.”
• “Your new “friend” is not my friend. Sometimes I want to spend time with just you.”
• “Please get on the same page! When you let me get away with stuff just because you want to be fun I get yelled at when I go back. I’m confused.”
• “It’s okay if I do something with them and not you. It’s just because they are better at it/that’s when it was on. I don’t love them more.”
• “You’re supposed to protect me from bullies, now you’re just being one.”
• “Stop acting like a child. Can’t you both find a way to be at my party/sports carnival/concert/game?”
• “Stop saying “I’m just like …” when I do something bad. It hurts me because I know you don’t like them and then I think you don’t like me.

Violent relationships

Today the news again featured a story about a violent relationship – this time, the most tragic of circumstances when a 33 year old mother of four was stabbed to death by her partner in front of one of their children on a busy suburban street in broad daylight.

According to media reports the woman had been at Sunshine Magistrates Court in relation to violent behaviour by her partner, she then went to a nearby women’s refuge and then to her solicitors office. After leaving her solicitors office her partner approached her and stabbed her fatally in the chest.

Victorian Police have confirmed that there was a restraining order protecting the woman from the man and he had a history of domestic violence against her.  

But today is not a one-off. Over the past few months many tragic stories of domestic violence have made the news-headlines.

 

In February Simon Gittnay was sentenced to 18 years in prison having been earlier convicted of murdering his girlfriend Lisa Harnum by throwing her from the balcony of their 15^th floor inner-city apartment – in what the Judge described as a “fit of rage”.

 

On the same day that Simon Gittnay was convicted of the murder of Ms Harnum, 41 year old Keeli Dutton, a mother of three, was stabbed to death in her apartment. According to media reports NSW Police believe that Ms Dutton was killed by her partner David Murray.

 

One month later, in December 2013, Marika Ninness, a 35 year old mother of three died – allegedly at the hands of her boyfriend, Ross Merrick. Apparently, Mr Merrick punched Ms Ninness in the face during a fight – she died two weeks later from serious head injuries.

These are just some of the stories that make the headlines. According to the Australian Institute of Criminology (2005-2006 statistics) more than one person is killed every week in Australia by a current or former partner.

Undoubtedly, these stories of domestic violence can have a significant impact on someone contemplating leaving a violent partner. Marking that decision is difficult enough but in the context of a history of physical violence, economic control, social restriction, emotional violence or verbal abuse where you are worried about the possible behaviour of your partner to the news of the separation, making that decision is even harder.  

But the cases that make the headlines serve as a reminder to all of us that practice in family law to promote the help that is available for people living in situations of domestic violence – and in particular those facing situations of urgency.

Numerous organisations are available to provide emergency assistance – including:

Centrelink – which can assist by providing financial assistance in a crisis – 136 150

Domestic Violence Helpline – 1800 656 463

Housing NSW Temporary Accommodation – 1800 152 152

Lifeline – 13 11 14

National Family Violence and Sexual Assault Counselling Service - 1800 737 732

 

 

 

Information in relaiton to the individual cases for this post was obtained form the Sydney Morning Herald and The Age newspapers.

Vaccination

Parenting after separation raises all kinds of issues for parents – some I have touched on previously, such as my recent post on technology use. But some of these issues cannot be resolved between the parents and require a Judge to make a determination as to a course of action. The most common that come before the Court relate to schooling or medical issues.

A recent example, from the past month, is a case decided by the Family Court in relation to the vaccination of the parties’ children.

The case of Duke-Randall & Randall [2014] FamCA 126 is part of a long history of litigation between the parents in relation to their two children - anonymoused as J (born 2002) and L (born 2004). The mother (“Duke-Randall”) commenced proceedings in June 2011. Interim Orders were first made on 13 December 2011 with the children living with both parents on a week-about basis. Further Interim Orders were made on 13 February 2012 that allocated sole parental responsibility for the children to the father and for the children to live with him. The final parenting arrangements are still pending determination by the Court.

On 11 March 2013 the Court made an Interim Order – on the instigation of the mother – that both parties were restrained from vaccinating the children prior to the issue being determined by the Court.

It was the mother’s position that the children should not be vaccinated as they were at risk of negative reaction to the vaccination. Since 2011, when she first raised the issue, the mother maintained that medical evidence would support her position. However, the mother acknowledged that she had not filed relevant affidavit material, she had also failed to organise for the Court appointed expert to be available for cross-examination and had failed to organise an affidavit from her own expert.

The father’s position was that it is in the best interest of the children to be vaccinated in accordance with the recommendation of the Court appointed expert. The father stated to the Court that had he not been restrained by Court Order, he would have attended to having the children vaccinated. He also stated: that the children were excluded from YMCA holiday care if not vaccinated, a member of his family has expressed reluctance to allow her children contact with his children if they are not vaccinated, and their school requires the children to be vaccinated in accordance with NSW Health Guidelines a conscientious objection form lodged – he is not a conscientious objector and is concerned as to the children being excluded from school during any infectious outbreak.

The Court appointed expert, Professor K, concluded that neither child presented with any known contraindication to vaccination. The Court found Professor K’s evidence to be “a personal history of allergies, except for some specific instances, is not a contraindication for vaccination, nor is a family history of adverse reactions to vaccines. Specific instances include egg allergy, known sensitivity to neomycin or streptomycin and gelatine allergy. Children with impaired immunity or immunosuppression should not be given live vaccines, but it was the Professor’s opinion that this did not apply to the children in question.” The Professor concluded that “the children are both healthy and able to receive vaccinations as per the recommended vaccination schedule. The children do not have any increased risk of side-effects or adverse events than the general population. Therefore, whether or not to go ahead with vaccination remained a philosophical question for those making the decision and not one based on any increased risk in this case.” The Professor recommended a catch up schedule for vaccination for the children.

Justice Forest stated that “since the mother has raised the immunisation issue, she has been narrowly focused on it, perhaps to the point where the best interests of her children have been subsumed.” The Judge went on to say that the Court had given the mother “ample opportunity to put on evidence in support of the children not being immunised and as to any risk of vaccine damage, she has not done so. Instead she has created only delay, which has been to her benefit in postponing the Court’s determination of this issue.”

The Court determined that it is in the best interests of these children that they be vaccinated:  there is no evidence before the Court that these particular children would be adversely affected by being vaccinated and there is no evidence of any risk to the children in being vaccinated against otherwise preventable diseases by routine vaccinations. The Court made orders accordingly.

Breaching privacy in family law proceedings - the Courier-Mail example

Last December I wrote a post about privacy and family law – and in particular the section of the Family Law Act which stipulates that publishing words or images which reveal the identity of those involved in family law proceedings is an offence.

Well last week a case hit the headlines on just this issue.

In May 2012 The Courier-Mail published the names and a number of front page photos of children involved in an international parenting dispute.

 

Following the publishing of those details and photos the Chief Justice of the Family Court made a complaint to the Australian Federal Police who investigated the matter. Ultimately the newspaper was charged with four breaches of the relevant section of the Family Law Act.

 

The newspaper pleaded guilty to breaching the Family Law Act during its coverage of the case.

 

When the matter came before District Court Justice Martin for sentencing he said “It seems to me that the newspaper seized upon what it regarded as a sensational story, which would be attractive to readers, and put the story ahead of its legal obligations.”

 

The District Court heard that journalists were warned on multiple occasions by a Court staffer and a legal officer about the ramifications of identifying the family.

 

Justice Martin said “This was persistent, serious offending in deliberate defiance of the law and importantly in complete disregard of the interest of four children.”

 

Justice Martin fined the paper $30,000 per breach saying that the breaches were in the worst category and that the newspaper had not shown any remorse for its actions. The maximum penalty is $33,000 per breach but Justice Martin took into account the newspaper’s lack of criminal history and its contribution to the community. Justice Martin said he believed that the fine was severe enough to deter “like-minded” publishers.

 

While this is a fairly extreme case it does serve to highlight the seriousness with which the Court takes breaches of privacy.

Conscious uncoupling

If you have seen the entertainment news this week you will likely have heard the term “conscious uncoupling”. Gwyneth Paltrow and Chris Martin have not separated but rather consciously uncoupled.

I’ve seen a few definitions for this concept but essentially it seems to be a recognition that relationships are not supposed to last forever and when a relationship ends both parties should be grateful for what was not bitter about what is no longer.

It would be very easy to dismiss this concept as airy-fairy celebrity nonsense but separation is a reality for many people and anything that can assist people through this tough time is worth considering.

Looking a little deeper into the concept of conscious uncoupling it turns out many of the ideas are no different from the broad concepts embraced by the Australian family law system – including putting the needs of the children first and focusing on a just outcome not a combative outcome.

Many of the tips I discuss with clients regularly seem to be the same or similar to those in conscious uncoupling:

My concepts	Conscious uncoupling
You give what you get. If something is important to you and you don’t want to give it up remember that when there is something that the other party requests.	Be "for" the other person - you both win.
Adapt your frame of mind - you will see valuable lessons that allow you to grow beyond the relationship	Focus on what you've gained, not what you've lost.
Put your kids first. You are still a family. Don't fight in front of your kids or speak negatively about your ex to your kids.	Choose your kids over being right. As Gwyneth Paltrow recently said, you are and always will be a family.
If you can separate well you will live well afterwards.	Never say I won't love again. Maybe you are not ready now, but know that you deserve to find love again.

 

Now these are all easy to say and extremely hard to do - and are more often a work in progress. But maybe the key concept from conscious uncoupling - a relationship can be successful even if it ends in separation – could be some comfort.

International seperation - property around the world

With the ease of international travel – and Australia’s rich migrant past - more and more people live their lives across multiple continents. This can raise important questions when it comes to family law if a couple separate: what if the couple own property in Australia and in other countries, what if the couple were married in another country but divorce in Australia, and what happens to their property in Australia if the couple divorce overseas?

The recent decision by the Full Court of the Family Court in Anderson & McIntosh addressed that last question: what impact does a foreign divorce have on property held in Australia?

In this case the parties were married in Australia in 1988, they had three children, and separated in another country (known as “Country B”) in December 2009. Following separation the wife remained in Country B and the husband returned to Australia.

In May 2010 the parties reached agreement in relation to the division of the property they owned in Country B and in December 2010 a divorce was granted in County B. The property agreement did not cover the assets they owned in Australia.

On 10 July 2012 the wife filed an application for property division in Australia – for the assets held in Australia. The husband filed a response asking that the wife’s application be dismissed on the basis that more than 12 months had elapsed since the divorce had been granted in Country B and she was therefore required to obtain the consent of the Court before she could bring her Application as required by section 44(3) of the Family Law Act.

On 20 March 2013 the Judge dismissed the husband’s response. The husband appealed that decision.

The Full Court of the Family Court was required to consider whether the requirement to file an application for property division within 12 months of the date of divorce without it being necessary to obtain the leave of the Court in accordance with section 44(3) of the Family Law Act 1975 applies where parties have been divorced overseas.  

The Court found that section 44(3) referred to a “divorce order” rather than a “divorce” and throughout the Family Law Act there is a distinction between those terms.

The Court concluded that a foreign divorce is distinguishable – a “divorce” and not a “divorce order”. And therefore there was no requirement for the wife to have sought the Court’s consent to bring her application. The husband’s appeal was dismissed and the wife was able to proceed with her property division application in relation to the assets that the parties held in Australia.