Popular Digests RSSMon, 29 Jun 2020 23:37:36 GMTThis fact sheet explains how Family Tax Benefit (FTB) works when the care of children is shared, most frequently in the event of divorce or separation. It also explains how to deal with problems that can arise, particularly when two carers do not agree on the “percentage of care” that should apply. Overview When two separated parents (or in fact any adult – like a grandparent) are sharing the care of a child, FTB can be split according to the percentage of time the child is in each adult’s care: If an adult has at least 35% care of the child, the FTB payment can be shared;If an adult has less than 35% of the care, they will not get a share of the FTB. However if they do have at least 14% of the care, they may be eligible for the rent assistance component and other benefits that normally attach to FTB;If an adult has less than 14% of the care, they cannot receive any family assistance for the child. Assessment period The assessment period for working out the percentage of care starts from the day care starts or changes, and runs until there is another change in care. A care period of 12 months will generally be used when the arrangements are ongoing. Generally for a 12 month period, the 35% minimum care rule is satisfied where a person cares for the child for at least 128 days in that year.Pattern of care To work out how FTB is to be shared, a “pattern of care” must be established to work out what percentage of time each adult cares for the child. This percentage is then applied when calculating the rate of Family Tax Benefit A and B that each adult can receive. The table below summarises the percentage of FTB that will be paid. If “number of nights” is not an accurate reflection of the pattern of care, in some cases, care can be expressed in hours and converted into days to establish a pattern of care. WHO DECIDES WHAT THE PERCENTAGE OF CARE IS? Centrelink’s Family Assistance Office or the Child Support Agency make a determination about the pattern of care ... Read more

]]>Mon, 29 Jun 2020 23:37:36 GMTIntroductionIn Melounis & Melounis (No 4) [2024], the Federal Circuit and Family Court of Australia tackled a high-conflict parenting dispute involving two children, aged ten and eight, amidst deteriorating parental relationships. Justice Altobelli allowed the mother’s application to reconsider final parenting orders under Section 65DAAA of the Family Law Act 1975, citing significant changes in circumstances and the need to promote the children’s safety and well-being.Facts and IssuesFacts:Background: The parents separated in 2019 after a relationship marked by conflict and allegations of family violence. The final parenting orders in 2022 established equal shared parental responsibility and week-about care arrangements.Post-Orders Issues: Continued parental conflict, financial disputes, and the deterioration of the mother’s financial position highlighted the failure of the equal shared care arrangement. The children remained exposed to high parental conflict.Application: The mother sought to reconsider the final orders, citing financial hardship, the ongoing conflict, and its psychological harm to the children.Issues:Has there been a significant change of circumstances since the final parenting orders were made?Would reconsidering the parenting orders promote the best interests of the children?Should a single expert report be ordered to assist the Court in future proceedings?Application of LawSection 65DAAA of the Family Law Act 1975:This section requires the Court to consider whether there has been a significant change of circumstances and whether revisiting the final orders aligns with the children’s best interests.Section 60CC of the Family Law Act 1975:The Court must consider the safety of the children and their carers, developmental needs, views of the children, and the benefit of maintaining meaningful relationships with both parents.Relevant Precedents:Rice and Asplund (1979): Established the principle of significant change in circumstances as a threshold fo... Read more

]]>Fri, 13 Dec 2024 04:41:55 GMTBarton & Haselwood [2021] FCCA 1770 (3 August 2021) The mother seeks to relocate to City B, Queensland with the children to be with her partner who she is in an open relationship with.  The father opposes the relocation.  The Court, in deciding whether or not to grant a relocation order, relied upon the evidence of the family consultant and the clear views expressed by children against relocation. Facts: The Applicant Mother wishes to relocate to City B in far north Queensland to be with her “primary partner”, Mr C.  The Father opposes the relocation.  The Mother and Mr C contend that they are in an open relationship.  While they profess to be in a committed relationship with each other, they both engage in casual, regular sexual relationships with other persons outside their commitment to each other.  In the Mother's Affidavit filed on 8th June 2020, the Mother confirmed that if the children “definitely did not want to go” to City B, she would not pursue her Application to relocate with them.  Both Counsels confirmed that the views of the children recorded in the first of the two Family Reports were uniformly against the relocation.  However, the Mother asserts that the children’s views (which she said were confused on the issue) had been accurately recorded in the Family Report.  Early in her oral evidence, the Mother confirmed that she was aware that, since his move to City B, Mr C has had, and continues to have, a series of sexual relationships with a number of partners.  Later in her evidence, the Mother accepted that, having been lied to by Mr C on at least two occasions, she had been the subject of a systematic program of deception, and that she had been “blind-sided” about a range of matters, by Mr C. The Mother nonetheless maintains that Mr C, who acknowledged that he lied to her to be with another woman (and on more than one occasion), “enriched” her role as a Mother. The Mother claims that her wish to move to City B is in order to escape the dome... Read more

]]>Tue, 21 Sep 2021 13:13:14 GMTIn November 2018 the Australian Government passed new legislation that would significantly impact the process for lodging family visas. The new requirement that sponsors for family visas be approved before a visa application can be lodged will take effect on 17 April 2019. It will apply to all Prospective Marriage Visa, Partner Visa or Parent Visa applications lodged from this date.Any Australian with a criminal record or who has a history of domestic violence, with the passing of the Family Violence Bill in the Senate last November, partner visa sponsors need to apply for approval first as a sponsor before applications are lodged. This means any one with a criminal record or a history of Domestic Violence will be unlikely to be approved and that potential offshore applicants and sponsors will have to pass through a stringent process to assess their character and history. This will then prolong the process of obtaining a partner visa. From the 17th of April, 2019 it means if you apply for Prospective Marriage Visa, Partner Visa or even a Parent Visa your sponsor will need to first be approved by the Department of Home Affairs, this additional step in the approval process is expected to have an additional charge of $420.It is important to note that there is an expected impact particularly on those planning to lodge a visa onshore, with the sponsorship approval process likely to exceed the validity of existing temporary visa's, bridging visa's will be unlikely and your spouse may need to go offshore and remain there until the sponsorship approval has been obtained and a visa application can be lodged. It is important to be aware that if an Australian sponsor has a conviction or fails to meet the character requirements due to a history of DV and AVO's they may not be approved.... Read more

]]>Thu, 11 Apr 2019 23:36:23 GMTSweet & Sweet [2022] FedCFamC2F 676 (27 May 2022) The parties are in dispute over whether the children should spend time with the applicant father.  The father has significant mental health and substance abuse issues.  The Court, in making its final orders, was guided by the children's best interests.   Facts: The parties commenced a relationship in 2009.  The parties separated on or about 30 October 2020, at which time the mother ceased to sleep in the master bedroom and slept on a foldout bed in the children’s bedroom.  Following their separation, the parties continued to live under the one roof until 19 February 2021, at which time the mother applied for a family violence intervention order (“IVO”).   In 2011, the father sold his property located in Suburb N, Victoria which he had purchased prior to cohabitation.  The sale proceeds were used to discharge the mortgage and the parties agree that the balance of $100,000 was applied to purchase the former matrimonial home.  The father contends that an additional amount of approximately $23,000 was applied, from the net proceeds of sale, for the purchase of furniture for the former matrimonial home.  The father has not, however, provided evidence of such purchases.  In 2011, the parties purchased the former matrimonial home situated at G Street, Suburb H, Victoria for $365,000 including stamp duty. In 2012, the parties married.  During 2013, the father sustained a carpal tunnel injury to his wrist at work.  In late 2019, the father received a disablement payout from his superannuation fund totalling $254,000.  The payment was made up of between approximately $100,000 and $105,000 in respect to total and permanent disablement of his right hand and the balance of $154,000 being superannuation benefits and interest which he had accumulated up until that point in time.  The father paid an amount of at least $234,000 into an Bank O investment account. As at March 2020, the amount held in the Bank O investment acc... Read more

]]>Fri, 10 Jun 2022 05:32:04 GMT Isles & Nelissen [2022] FedCFamC1A 97 (1 July 2022) The primary judge ordered that the children should live with the mother and could spend only supervised time with the father.  The father disputes the finding that he posed an unacceptable risk of harm to the children.  The Court, in resolving this dispute, considered the primary judge's reliance upon evidence and its bearing on the assessment of risk. Facts: The appellant is the father, and the respondent is the mother. They are the parents of the four children.  The eldest was aged 10 years at the time of judgment.  In April 2018, when the eldest child was nearly seven years of age, he alleged that the father sexually assaulted him by penetrating his anus with a finger.  There is no dispute the child actually made the allegation, because he made it in the presence of several adults and children, prompting the mother to challenge the father about the allegation at her home two days later on 20 April 2018, when he denied it. The child was interviewed three times by police: first on 19 April 2018, when he made no disclosure of sexual abuse by the father; secondly, on 20 April 2018, when he did repeat the earlier allegation of his digital penetration by the father; and thirdly in November 2018, when he confirmed the alleged apology to him by the father on 20 April 2018.  The father was charged with the child’s rape, but the prosecution was later withdrawn by the State Director of Public Prosecutions in June 2019 due to the “lack of specificity” in the evidence.  The allegations against the father caused the mother to withhold all the children from him.  The father, dissatisfied with that situation, commenced proceedings under Pt VII of the Act in July 2018, seeking orders in respect of the children.  Interim orders were subsequently made for the children to spend supervised time with the father.  In September 2020, final consent orders were made for the children to live with the mother and to spend uns... Read more

]]>Tue, 12 Jul 2022 06:11:07 GMTThis is a case involving a Parenting dispute over a 6 year old girl (born 2013), she has not been able to see her father for significant periods of time, causing the father to withdraw from time with the child for various reasons resulting fracture of child’s relationship with him.  The court recognised the mother alienates the relationship between father and child, with the family report recommending no time with the father as the least unsatisfactory outcome for the child. The Court decided orders to be made as sought by the Independent Children’s Lawyer.Orders Sought :The mother seeks that the child live with her and spend no time with the father, with her to have sole parental responsibility. The father’s position is that the child should live with the mother but spend each alternate weekend from Friday to Sunday (or Monday) with him and that there be joint parental responsibility. FACTS: The parties met in 2011, were married in 2012 and separated on 16 October 2015. Following the father’s first application made in October 2015, consent orders were entered into on 2 September 2016, pursuant to which the child was to live with the mother but spend time with the father increasing to alternate weekend time. The father spent time with X until August 2017 when the mother unilaterally suspended his time following alleged revelations of assault by the father which the father denied. The mother applied for an Intervention Order against the respondent and an interim one was granted. On 28 August 2017, the parties divorced and in March 2018 the father issued proceedings again in this court. Interim orders were made for supervised time on 1 May 2018, supervised by Contact Service A. Supervised time continued largely in accordance with those orders but, towards the end of 2018 and the beginning of 2019, the father’s attendance became less constant. On 19 March 2019, orders were made for X to spend gradually increasing time with the father up to an eventual outco... Read more

]]>Fri, 28 Aug 2020 01:45:30 GMTHello Anonymous, Here is the FLAST-AI response to your question. Question Question regarding Final Family Court Orders for those with teens.We have had final orders in place for several years with the other parent having only visits for 7hrs once per week, no overnights, no calls etc, holidays etc and I have full parental responsibility.We spilt when the kids were 1 and 2 and the other parent had had very little influence in their lives and had basically made everything harder.The kids are now almost 14 and 15 and don't want to have to go every week. The relationship is not good and the other parent is not a very nice person (not going into details here).I receive conflicting information about when the kids might be old enough to decide whether or not to go or if they're stuck with the order until 18... which seems ludicrous.They not saying they'll never go but that they want to decide when and it not be forced every week. My almost 15 year old is feeling extremely frustrated and angry about the situation and talks about "taking his dad to court" so he doesn't have to see him... I have explained that this is not how it works etc but I can't help how he feels.Has anyone had first-hand experience here? not just hypothetical advice? I have spoken to a few lawyers and looked online and still get conflicting info all the time.TIA Answer First let's LEGALEASE your words:Here are the Facts: 1. Final Family Court Orders have been in place for several years.2. The other parent is granted visits for 7 hours per week, with no overnights, calls, holidays, etc.3. The Mother has full parental responsibility.4. The relationship between the children and the other parent is strained.5. The children are now almost 14 and 15 and express a desire not to be forced to visit the other parent every week.6. The Mother has received conflicting information regarding when the children might be old enough to decide whether or not they want to go for visits.7. The nearly 15-year-old child ... Read more

]]>Thu, 28 Sep 2023 11:27:12 GMTIn family law related cases we see all too often the problem of domestic violence against women and children who are in a vulnerable position as a result of the break-up.If an offender repeatedly breaches a bond and an apprehended violence order-imposed by the Court and continues to inflict violence upon a woman in breach of orders that involved similar past behavior and the same victim, he should expect to be imprisoned, and not for an insubstantial period.This applies especially in cases of the more vulnerable victims such as Unemployed persons, Person's cut off from friends and family, person's with disabilities.Even more so if it involves crimes against children, one of the statutory aggravating features is that if the offence was committed in the presence of a child under 18 years of age and/or party to the protection order. It does not matter whether the offender is a parent of the child or not, although if it is a parent this will be particularly aggravating.Penalties and sentencing for breach of protection orders The maximum penalties for breach of a protection order vary significantly across state and territory jurisdictions.The table below sets out the maximum penalties in each jurisdiction. Jurisdiction Maximum Penalty NSW Imprisonment for two years or 50 penalty units ($5,500) or both (s 14 of NSW Act) Victoria Imprisonment for two years or 240 penalty units ($27,220.80) or both (ss 123 and 27 of Victorian Act) Queensland Imprisonment for one year or 40 penalty units ($40,000) for first offence, and imprisonment for two years for third and subsequent offences within a period of three years (s 80 of Qld Act) WA Imprisonment for two years and fine of $6,000 or both (s 61 WA Act) SA Imprisonment for two years—but if breach of ‘intervention order’ under s 13 (order to undertake intervention program)—maximum penalty is $1,250 (s 31 of SA Act) Tasmania ... Read more

]]>Wed, 22 May 2019 07:06:01 GMTThe adversarial common law system in Australia, by its very definition, often delivers results that are far from what was expected, even to impartial third parties. The counter-balance to this uncertainty is the hierarchical layers of Courts, providing avenues for appeals. Sometimes however issues arise in family law proceedings in Australia with regard to the performance of the judicial officer or the Independent Children’s Lawyer, which cannot wait for the sometimes long-winded appeals process, and require immediate action or remedy. This paper will consider the procedure for removing a judge and an Independent Children’s Lawyer (ICL) from proceedings. As the procedure for removing a judge varies considerably from removing an ICL, I will deal with them on a separate basis. Removing a judge from proceedings In certain cases a party to litigation might conclude that a judge is not fit to preside over proceedings and should be removed. The grounds for removing a judge from proceedings, however, are narrow and restrictive. A judge can only be disqualified from a matter on the grounds of bias. Governing Principle The principles of natural justice require that a decision maker, ie. a judge or a magistrate, must approach a matter with an open mind that is free from pre-judgment or prejudice. In other words, the decision maker must be free from bias. A party who suspects that a judge or a magistrate is biased may seek an application to have the decision maker removed from the proceedings. Types of Bias There are two types of bias, actual bias and apprehended bias. Actual bias is available only if a party can prove that the decision maker’s minds is closed and will not be swayed by the evidence in hand. On the other hand, apprehended bias (also known as apparent bias) only requires a finding that a fair minded and reasonably well informed observer might conclude that the decision-maker did not approach the issue with an open mind. Most cases concern apparent bi... Read more

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