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Family Law and Care of a Special Needs Child

Family Law and Care of a Special Needs Child

Monday 2nd of September 2019
By: Lauren Dunning, Associate, Coote Family Lawyers

If I was gifted in writing this is exactly what I would have written. You are a genius.

Will the Court take into account the special needs of my child when considering contributions and maintenance?

When considering what is an appropriate property settlement, the Court must give consideration to the financial and non-financial contributions made by each of the parties.

The Court must also take into account the future needs of each of the parties which includes the following considerations:

  • the age and state of health of each party;
  • the income, property and financial resources of each party;
  • the commitments that either party might have to support him or herself or others, including a child/children;
  • a standard of living that in normal circumstances is reasonable;
  • any other fact or circumstance that might be taken into account.

In certain cases the Court is asked to consider whether more unique contributions would justify an adjustment in favour of the party making the contributions. In the case of Palmer & Palmer [2010] FMCAfam 999 the contribution in question was the of the care of a disabled child.

A child of the marriage, [Y] suffered from Cerebral Palsy and it was argued on behalf of the Wife, that there should be a contribution based adjustment made in her favour. Specifically, it was argued that there was significant burden on the Wife in travelling to medical appointments and otherwise managing the care of the child which should be considered relevant to her contributions.

Federal Magistrate Brewster declined to make a contribution based adjustment for the care of the child. However, the Wife was given a 20% adjustment on account of her future needs and his honour gave particular consideration to the following:

"The wife will continue to have the responsibility for the care for the children. This is to be recognised both in relation to its financial implications and also the non-financial aspects of their care. For the reasons indicated earlier I do not take into account [Y]’s disabilities except insofar as they have financial implications. In this respect the wife has to do a good deal of travelling taking her to and from medical appointments which includes occasional visits to Sydney. She receives a carer’s allowance of $50 a week but I would surprised if this entirely covered the additional costs occasioned by [Y]’s condition. . .It is apparent that section 75(2) factors favour the wife. I make a 20% adjustment in her favour."

This is contrary to the earlier decision of  Lambert v Lambert [2002] EWCA Civ 1685 at paragraph 45 which found:

"There is no legal principle that a "high loading" should be accorded to a spouse caring for a child with special needs and the authorities cited do not support the existence of such a principle.  The facts of every case are different and different considerations apply in the exercise of judicial discretion.  Thorpe LJ in Lambert said: "Examples cited of the mother who cares for a handicapped child seemed to me both theoretical and distasteful.  Such sacrifice and achievements are the produce of love and commitments and are not to be counted in cash."

This issue and the conflicting positions taken in these cases demonstrate the complex considerations that are relevant to a family law property settlement. If you are going through a separation and would like more advice about how your individual circumstances are relevant to your property settlement, contact Melbourne's top family law firm on 9804 0035 to make an appointment with one of our experienced family lawyers.

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