Michael Lynch Family Lawyers

THIS ISSUE - No. 151

  • Seminar Series – Coming Soon
  • Immunisations – A Court’s Consideration
  • Q & A
  • Spouse Maintenance During Maternity Leave

Seminar Series – Coming Soon

Our next Public Seminar Series is coming soon! The first seminar is less than a month away, starting on the 27th of July! 6 seminars over 3 weeks!

Two 1 hour topics to choose from, including “Separation & Children” and “Separation & Property” and they will be presented by our Principal and Accredited Specialist, Michael Lynch. These topics are very popular so don’t miss this series!

For more details on all the seminar dates and locations, visit www.mlfl.com.au/seminars.

Immunisations – A Court’s Consideration

This anti-vaccine debate is vehemently argued by doctors, parents and the general public. But what happens when separated parents cannot agree about the immunisation of a child and the decision is left to the Court? A recent decision from the Federal Magistrate’s Court has considered this.

The Facts:

  • The case involved a 5 year old child. The parents separated prior to her birth in 2005. In 2006 the parties entered into Consent Orders about the time the Father would spend with the child. It provided that the time would increase on a gradual basis and also that the child would not be immunised.
  • The Father filed proceedings four years later seeking a change to the Parenting Orders to allow for the child to be immunised. The Father’s evidence was that he was desperate to establish a relationship with the child and that he initially consented to the injunction involving immunisations so he could commence spending time with her.
  • Doctor’s provided evidence in support of both parents’ arguments. The Mother’s evidence was that there was a risk of the child having a reaction to the immunisation, whilst the Father argued that it was in the child’s ‘best interests’ to be protected from any diseases by receiving immunisations.

Court Found:

  • The risk of the child suffering a significant reaction to immunisation was extremely rare. In balancing the risk ratio and the paramount consideration of the child’s “best interests”, the Court Ordered that the child be immunised for Measles, Mumps, Rubella, Diphtheria, Tetanus, Pertussis, Varicella.
  • The Court did not Order that the child be immunised for Hepatitis B or Polio as there is little likelihood of the child contracting any of those diseases in Australia and therefore on a risk analysis they were unnecessary.
Michael Lynch Family Lawyers
  • The Court also made an Order that the child be immunised for the Papaloma Virus (which is usually administered when 11 years of age) to prevent any further proceedings between the parties.

Q & A

Q: I have 2 children, one of them is over 18 years of age but still needs financial support, is there any way that the Court can Order my ex-partner to assist?

A: It is possible for the Court to make an Order for maintenance for your child over 18, in certain circumstances. This occurs under the Family Law Act, not the Child Support Act (i.e. not through the CSA). The Court usually makes a maintenance Order to enable the child to complete their education if the child is suffering a mental or physical disability.

Spouse Maintenance During Maternity Leave

If, at separation, a couple have different incomes and the lower income earning spouse is unable to meet their “reasonable financial needs” they may be eligible for spouse maintenance from the higher income earning spouse.

In a recent case the Court had to consider whether the Husband should pay spouse maintenance to the Wife, while the Wife was on unpaid maternity leave.

The Facts:

  • The couple were together for 4 years. The Husband was aged 38 and the Wife was aged 30.
  • The Wife had taken 8 months paid maternity leave from work, then 4 months unpaid leave, then applied


  • for 4 months leave without pay and then applied for continued ‘leave without pay’ on the basis of “extended maternity leave and illness”. At the time of the hearing, the child was 16 months old.
  • The Wife said her weekly expenses were $850 and when she was working, her weekly income was $707.
  • The Wife sought spouse maintenance from the Husband of $850 per week.
  • The Husband questioned the Wife’s expenses, including the extent to which her expenses related specifically to the care of the child, the cost of her medical expenses and why she had taken leave when there was a shared care arrangement in place.
  • For the first 4 months prior to the hearing, the Husband had provided the Wife with $300 per week for rental assistance.

Court Found:

  • Since the Husband had previously been able to provide the Wife with assistance he had the capacity to make a spouse maintenance payment.
  • Although the Wife has the potential capacity to return to work, she was entitled to continue “her caregiving role as a parent”, for a child under school age.
  • There was no evidence to suggest that the Wife would not return to work after her leave expired.

Court Order:

  • That the Husband pay spouse maintenance of $250 per week for the next 4 months.
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