follow us on facebook
CONTACT US 13 58 28
Category

Family Law

What is ‘Parental Responsibility’?

By | Family Law

Parental responsibility refers to the entirety of the duties, powers, responsibilities, and authority with which parents, by law, have in regards to their children. While seemingly straightforward at the outset, parental responsibilities become more complicated when forcibly divided by courts during divorce or separation proceedings. Whereas it’s generally preferable that parental responsibility is shared and close to equal, the court will determine parental responsibility on a case by case basis in accordance with what is in the best interests of the child in cases of divorce or separation.

What is included in parental responsibility?

All decisions surrounding child care are included in parental responsibility, ranging from mundane day-to-day decisions to longer term ones. The clothes the child wears, the food the child eats, the activities the child participates in, the school the child attends, the religion the child practices… all are included in the large umbrella of parental responsibility. Other responsibilities of the parents include the ability to:

  • represent their child in any legal proceedings on their behalf;
  • consent to the adoption of the child;
  • discipline;
  • upbringing, religious practices, and education;
  • child maintenance and caregiving (necessities);
  • ensuring school attendance.

Equal shared parental responsibility

There is a general presumption that equal shared parental responsibility is the preference of the court absent some exception. This determination means that parents will need to cooperate in order to make long-term decisions regarding their child’s care, upbringing, and future. However, the short-term decisions (the day-to-day ones) will become the sole responsibility of the parent who is caring for the child. Equal shared parental responsibility does not necessarily mean or will not guarantee that the child will spend equal time with each parent.

An exception where the court will not make an order for equal shared parental responsibility is if there is violence involved and/or any risk of harm to the child.  In these circumstances, sole parental responsibility may be ordered for one of the carers (who does not pose any risk) of the children to the exclusion of the other carer.

Arrangements between care-givers

Whether you are a parent or other adult responsible for the care of the children, arrangements will need to be made for the children in question as to the amount of time the children spend with each parent/guardian. There are different ways to make these arrangements (whether oral or in writing) including:

  • an informal agreement;
  • by way of a signed parenting plan; or
  • Formal orders of the Family and Federal Circuit Court.

In the event that the parents or guardians of the children cannot agree on the proper course of action to care for the child, or cannot communicate in an effective way, either party can request that a court make a ruling that determines the parenting and arrangements for the children.

Child protection orders

If a minor child (under the age of 18) leaves home, the child may be required to return either by their parents or by the court. If a parent or guardian makes a complaint that a minor child has left the home, the police and Child Services may investigate. If it is then determined that the child is in need of protection, the police or an authorised Child Safety Services officer may apply for a child protection order for the child in question. If the minor child is able to support themselves, secure adequate housing, is not breaking the law (or likely to break the law), and is not posing a threat to themselves or anyone else, the child protection order may be dismissed.

Can Your Ex-De Facto Inherit Under Your Will?

By | Family Law, Wills and Estates

No two people who embark on a relationship together hope that it will fail. Both partners take steps to progress their relationship: moving in together, splitting bills, combining finances, and perhaps even writing wills together. At the time they are written, these wills reflect the trust you have in your partner and the desire to provide for them in the event of your death. Sadly, de facto relationships break down just as often as marriages. In the aftermath of a split, disentangling two lives is both complicated and stressful, and these factors can lead to oversight. What happens if you forget to change the contents of your will and then pass away?

What is a de facto relationship?

According to the Family Law Act of 1975, a de facto relationship involves two parties of the same or opposite gender living together on a genuine domestic basis.  A de facto relationship will be deemed to have arisen after a period of living together for two years or if there is a child of the relationship.  The Court may also deem a relationship as de facto earlier than two years if a party has made substantial contributions to the relationship and there would be serious injustice in the relationship is not recognized

For the purposes of the Succession Act 1981 (Qld) there is a further requirement that the two parties lived together as a couple on a genuine domestic basis for a continuous period of at least 2 years at the time when one of the parties passes away.

Can your ex-de facto partner inherit from you?

Consider the situation in which your de facto relationship ended, you passed away, your will was never changed and now your ex is seeking to inherit his or her share, much to the displeasure of your family and friends. What happens now? Well, after June 5, 2017, de facto relationships are now treated in the same manner as marriages. This means that upon dissolution of the relationship, a de facto spouse’s appointment as executor of the will shall be automatically revoked, along with any gift left to them under the will.

Differences to ending a marriage

As mentioned above, de facto relationships are meant to be treated the same way as marriages. In the same way that divorce revokes appointments and benefits left to the ex-spouse in the will, so too will the dissolution of a de facto relationship.

However, what most people might not realize is that revocation of dispositions and appointments to an ex-spouse in a will after marriage only occurs when a divorce order of the Family Court has been issued. Many assume that it happens as soon as the married couple begins the year of separation required for a divorce in Australia, but this is not the case. Though merely ending a de facto relationship will revoke these will provisions, the end of cohabitation between married couples will not because a formal divorce is required.

What if I want them to inherit?

Some people are able to maintain healthy and happy relationships with their ex-partners. If you are one of these people, you may want to keep will provisions that appoint your former partner the executor of your estate or bestow gifts on them. To prevent automatic revocation, you must include a specific contrary intention within the will.

Keeping wills up-to-date

What if your ex de-facto is claiming that the relationship hasn’t ended when you pass away?  While a divorce order in a marriage is conclusive evidence of the dissolution of the relationship, there is no such document for de facto relationships.  In the event of a relationship breakdown t is important to update your will to reflect the change in your circumstances.  Outdated wills can cause unwanted costs, delay and distress to the administration of your estate.

Unfortunately, many people spend so much time in bitter property settlements and acrimonious family law proceedings that they forget all about updating their wills. In fact, a shocking number of Australians do not have updated wills, with studies showing that around 45% are living without a valid will. Most legal professionals suggest that you revisit your will (and other estate planning documents) every three to five years, or after a significant life event (such as the breakdown of a relationship) to ensure it is up-to-date and reflects your truest intentions.

Conclusion

Wills are complicated formal documents that must conform to strict legal requirements. As such, it is not advisable to prepare one on your own. Because of their complicated nature and the pain surrounding such topics, many leave estate planning until it is too late. If you or a loved one have any questions regarding de facto relationships, the validity of will provisions, or revising a current will, seek legal advice as soon as possible.

Myths About Family Law Property Settlements

By | Family Law

Myths About Family Law Property Settlements

According to the Australian Bureau of Statistics, a whopping 46,600 divorces were granted in Australia in 2016. In addition to the serious emotional toll of divorce, there are seemingly endless logistical concerns as well, including asset division, childcare and property settlements. Unfortunately, because of how common divorce is there is a lot of false information around about its consequences. Below, we do our best to debunk some of the more persistent myths surrounding property law settlements.

Property Division and Divorce

Though often a direct result of divorce, there is no requirement that your divorce needs to be final before negotiating your property settlement. In Australia, you need to be separated for at least one year before qualifying for a divorce application. However, property division can begin as soon as you separate and must be finalised within one year of the date of your divorce.

Previously Owned Property

In the event of divorce or the dissolution of a de facto relationship, a four step process is used to determine how assets should be divided, based on how a court might order it to be done. Property that was brought into the relationship without any contribution from the partner, will not necessarily remain the property of the original owner when a relationship ends.

  1. Asset identification: First, you must take inventory of all the assets and liabilities in the relationship. This may include property owned individually or jointly (both with each other and with third parties).
  2. Contributions: When dividing assets, the Court will look at the contributions made by each party in the relationship. This includes economic contributions (such as income), non-economic contributions (such as homemaking and childcare), and external contributions (such as inheritance or gifts).
  3. Assessment of future needs: Courts will also consider whether one party may have greater needs than the other moving forward by factoring in earning capacity, age, health, childcare needs, and more.
  4. Justice and Equity: Overall, the Court will come to an arrangement that is just and equitable in light of all of the attendant circumstances. In non-legal terms the settlement should suit the needs of both parties and be practical.

In general, the Court is free to use its discretion when determining the divisions of assets, and parties will likely negotiate along these same lines.

Equal Division of Property

A related myth of property settlement is that the division of assets will be a 50-50 split between partners. However, there is no policy which requires an equal split. Just as every relationship is unique, every dissolution will be unique, too. The percentage amount that each partner will receive is based on a variety of factors including (but not necessarily limited to): the length of the relationship, contributions made to the marriage, current and future needs, earning capacity, childcare, and more. Generally, the longer that the relationship has lasted, the more even the marital contributions will be. In longer relationships the Court has strong consideration of the needs of the parties after separation.

Asset Exclusion

Assets that were held by a company or a trust will not necessarily be excluded from a property settlement. When property is held by a company or trust, the Court will look at who is in control of the company or trust. If one of the parties have some control over the company or trust then the Court will be able to consider it either an asset of the marriage, or at least attribute it to one of the parties when determining worth.

Pre-Nuptial Agreements and Binding Financial Agreements

Prenuptial Agreements (“pre-nups”): Though popularly thought of as an American invention beloved of celebrities, prenuptials are in fact less sensational than movies and newspapers would have you believe. In fact, they are a useful way to establish a property distribution plan and protect assets from being included as marital property. Is there an Australian counterpart? Yes…

Binding Financial Agreements (BFAs): Binding financial agreements are legal documents that act as protection for those entering into new relationships. Having a BFA means that, if in the unfortunate event that the marriage breaks down, they have a plan for how they want to divvy up their property. This can reduce the cost and stress of property settlement, and perhaps reduce the negative feelings that go hand-in-hand with negotiating who gets what and how much.

Are Overseas Assets Included in Australian Property Settlements?

By | Family Law

To borrow a line from an old Disney favourite, “It’s a small, small world”, and in the 21st century that sentiment is more accurate than ever. The Internet provides global news and information 24/7. Social media makes it easier for friends and families separated by thousands of miles to keep in touch. It also increasingly facilitates relationships between strangers from different countries.

But what happens when a marriage between an Australian and someone from another country ends in separation or divorce? Or more accurately, what happens to the foreign assets?

For starters, let’s see how the Full Court of the Family Court of Australia has ruled on this issue. In a recent case, Anderson & McIntosh (2013) FLC 93-568, the people involved were married in Australia in 1988, but had lived abroad (in country X) since 2006. They were still living in country X when they were legally separated in 2009. They also got divorced in country X in 2010. Afterwards, they obtained property settlement orders pertaining to their assets in country X. However, they didn’t receive any such orders for their Australian property.

In this matter, a ruling on an application for property orders under the Family Law Act 1975 established that whenever anyone going through separation or divorce has property in more than one country, they must seek and obtain property orders in each place (country) where they have assets/belongings. In other words, if you have property here and elsewhere, you must seek separate property orders based on the laws of each country. This is because foreign countries don’t necessarily recognise orders issued by Australian courts.

Further Considerations

In relation to international divorce or property orders overseas, here are some other things to keep in mind:

  • If you were married here but are living overseas, you are legally classified as an expatriate of Australia. This means that you are allowed to file an international divorce in both countries.
  • If you got married here, but are separating or considering an international divorce in another country, it may be better to get divorced in Australia rather than in a foreign country. The key standard that must be met to obtain a divorce in Australia is that you have been separated for no less than 12 months.
  • In the event that one of you kept your Australian residence, lived here at any time within the 12-month period, or considered Australia as your home with the intent to live here most of the time, the divorce and property settlement could fall within the purview of the Australian Family Courts.
  • In Australia, there is a 12-month deadline for making an application for property settlement with the Family Courts after the date of divorce. Because this deadline may be different in other countries, you should seek legal advice about your options as soon as possible.

Furthermore, it doesn’t matter where you have property overseas. In accordance with Australian law, you must make your former partner aware of the holding/s during the property settlement process. This is called disclosure and failure to share the required information can have serious consequences. For instance, if the Australian Family Courts have the authority over the settlement process, it may force them to scrap a final property order and start from scratch. Conversely, disclosing the information as required by law will help the Australian Family Courts issue a final order that is fair to everyone involved.

The Need For Expert Advice

On a related note, there are several circumstances in which it may be necessary to seek advice from qualified financial and legal professionals. For example, you may want to get an independent assessment if you and your ex-spouse disagree on the worth of a foreign asset. If you have significant assets in a foreign country, you should also consult accountants or tax advisers about the potential foreign and domestic ramifications stemming from a property settlement. Finally, you may need to enlist the help of relevant professionals in the foreign country to ensure that Australian court orders can be executed.

Even in a best-case scenario, divorce and separation are acknowledged as two of the most stressful life experiences one can go through. And although divorce and separation in Australia is fairly straightforward, any emotional upheaval during this time puts you at risk of making costly and unpleasant mistakes. As we have noted, even the unintentional failure to share information about a foreign asset can result in the denial of a settlement or invalidation of a final order, forcing you to go through the entire property settlement process again.

On the other hand, the best way to avoid unnecessary complications is to get the proper legal advice as soon as possible. If you are considering divorce or separation and you have any sort of property overseas, phone us to schedule a consultation today.

Drug Testing in Family Law Matters

By | Family Law

Divorce, separation, and the breakdown of the family relationship is one of the hardest and most challenging things many Australians will face in life. But as difficult and emotionally draining as this experience can be on its own, when combined with the pain caused by addiction, it can feel impossible to reach a place where you and your family feel safe. The prevalence of drug use in today’s society means it has become increasingly common for allegations of drug abuse to be raised in Family Court proceedings. If you or a loved one has questions about how drug use may affect their family law matters, contact a lawyer as soon as possible for the most accurate legal advice possible.

In the Child’s Best Interests   

The primary concern in a family law matter is the wellbeing of any children involved in the proceeding. While a parent who is struggling with drugs is fully capable of loving their child, there is the question of whether they are able to provide adequate care. When there is an allegation of drug abuse or dependence, therefore, it is a highly relevant matter in ultimately deciding the living arrangements and childcare agreements.

When Will a Drug Test Be Ordered?

If there is reason to believe a parent is using drugs or there is some risk to the child involved, a Notice of Risk will be filed with the Family Court within the initial application. The Notice of Risk will also be sent to the relevant child protection agency in your state for it to develop a report regarding the family’s situation. Because of the Court’s responsibility to protect the children from the potential harm caused by a drug-using parent, they will allow tests to be ordered.

How Does the Court Administer Drug Tests?

Independent Children’s Lawyer: In the event that the child(ren) in question has had an Independent Children’s Lawyer (ICL) assigned to their case, it is the responsibility of this ICL to request random drug testing. The requests generally need to be made in writing and require that the party to be tested complies within 24 hours of receiving the request. After undergoing the test, the results need to be provided to all parties involved. Random drug testing will continue for as long as the Court deems necessary to ensure the safety of the children.        

Direct Requests: When no ICL has been appointed in the case, the involved parties can request drug tests against one another. In a scenario where requests are being made by the parties themselves and are not at the request of an ICL, the Court will place limits on how many drug tests will be allowed.

Refusal to Take the Test

If a party who has received a drug test request refuses to take one, the Court will infer a positive result. If a party has a legitimate reason as to why they couldn’t take a drug test, however, the Court may be more lenient but the party will have to provide sufficient documentary evidence to support their inability to take the test.

Type of Drug Testing

Urine: Urinalysis is the most common type of testing ordered by the Court due to its efficiency and cost effectiveness. Testing urine is non-invasive and the test results are returned quickly. But urinalysis only really tests whether a person has recently used drugs and doesn’t indicate any evidence about drug use over a period of time.

Hair: Unlike urinalysis, testing hair does provide a longer view of a person’s drug use habits. Despite the higher costs associated with testing hair follicles, Family Court has begun moving towards hair analysis to better assess drug use over a period of time. In circumstances where hair will be tested, the Court may limit the party’s ability to cut and/or dye their hair, as it may affect the integrity and accuracy of the test.

Blood: Blood testing is generally used when the abuse in question is that of alcohol rather than drugs.

Costs of Drug Testing

Generally, the costs of the drug tests will be paid by the party who is required to undergo the testing, but occasionally the costs will be distributed differently according to the unique circumstances of the case in question.

If you have questions, concerns, or are in need of support in the face of a family matter which involves allegations of drug abuse, please do not hesitate to contact a professional lawyer to represent your best interests and those of your family.

When is the Best Time to Consider a Property Settlement?

By | Family Law

In family law, there can often be a lot of confusion in relation to property settlements. More specifically, at what point are you able to consider a property settlement and of course, is there a better time than others to think about it? In this podcast, David Millwater, our Family Law expert talks about this matter.

Legal Costs

Who Pays the Family Law Legal Costs?

By | Family Law, General Information

Your ex has threatened to take you to Court and go after you for legal costs? Or you are in the unfortunate position of having to take your recalcitrant spouse to Court to have progress? Who pays the legal costs?

The general rule in the family law courts is that each party pays their own legal costs.

However, there are exceptions and circumstances that fall outside the general rule where one party may be required to pay part or all of the other’s costs.

Section 117 of the Family Law Act 1975 deals with legal costs in family law matters.

The section starts by saying that each party bears their own costs, but also says the Court may make Orders as to legal costs as the Court considers just.

Subsection 117(2A) then lists the factors the Court should consider in deciding whether to make an Order on costs, summarised as follows:-

  1. The financial situation of the parties;
  2. Whether either party is receiving Legal Aid funding;
  3. the conduct of the parties to the Court proceedings including, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters (have they followed Court rules and procedures);
  4. whether parties have complied with Court Orders;
  5. whether either party was wholly unsuccessful in the Court proceedings;
  6. any offers made by the parties and the terms of any offer;
  7. such other matters the Court considers relevant.
They breached an Order

Where there has been non-compliance with previous Court Orders a claim that one party pay the other parties’ legal costs would usually get the Court’s initial attention, however the assessment of whether a costs Order is made depends on weighing up all the above listed factors.

Send them a letter before applying to the Court

If the need for applying to the Court has arisen by the failure of one party to engage in any negotiations, exchange of documents, or unreasonable delay this would assist to seek costs.

The fact that the Court considers the conduct of the parties and any offers made gives good reason to attempt negotiation with the other party prior to resorting to Court proceedings.

It is imperative that prior to any application to a Court the parties’ and their lawyers should engage in correspondence to attempt resolution without needing to apply to the Court.

If you make a reasonable or favourable offer that is not accepted by the other party, and the Court considers the other party’s position to have been unreasonable, there may be an argument that they should pay some or all of your costs.

The straw that got the costs Order made

The consideration of whether to make a costs Order is a matter of discretion by the Court. This means the Court weighs up all the competing factors and can decide differently for each case. For this reason, if a party simply made an offer that was not accepted then that alone may not be enough to result in a costs Order. However, if a party in a letter makes a very favourable offer, the other party has breached a Court Order, and the other party’s position at Court appears unreasonable, then the combination of factors might mean a costs Order is made.

Because the Court may consider a costs Order if parties do not follow the Court rules and procedures correctly, it is recommended that legal advice be sought throughout the course of your Court proceedings to avoid failure to comply with Court rules developing into a situation where the other party seeks legal costs. It is worth noting however that the Court will usually give unrepresented parties some forewarning when it comes to non-compliance with rules prior to making a costs Order against them.

What about the children

The consideration of the relative financial positions of the parties is an important consideration, particularly in parenting matters. If the Court is satisfied that making a legal costs Order against a parent would have a negative financial effect on a child’s household the Court in those cases will usually not make a costs Order.

Documentation

Whether you are seeking a costs Order or attempting to dodge one, it is important that all relevant information be set out in an Affidavit and filed at Court. Any information relevant to the seven (7) considerations in section 117(2A) should be included. A detailed breakdown of your income, expenses, assets, and liabilities should be provided. Copies of letters or offers exchanged by the parties should be attached.

All or some costs?

A Court can make an Order to pay legal costs on a Court Scale or the actual amount of the other party’s legal costs.

Court Scale costs are usually much less than actual legal costs, and the Court may fix costs at 100% of the Court scale or any lesser amount the Court decides as just.

The actual legal fees of the other party are sometimes called “Indemnity costs” or “solicitor and client costs”. The Court will usually only grant payment of the actual legal fees of another party in the most deserving of circumstances and the Court will need to be satisfied that the legal fees are reasonable and not excessive.

The assessment of whether there is a chance of a legal costs Order being made is something that should be done by an experienced family lawyer.

This brief article is intended to give a basic knowledge of the rules surrounding legal costs Orders in the family Courts.

Our family lawyers Ipswich at McNamara & Associates would be happy to discuss this and any other aspect of your family law matter. Please do not hesitate to contact our office to arrange your first initial consultation free of charge.

Post-Separation Binding Financial Agreements

Post-Separation Binding Financial Agreements

By | Family Law

A good family lawyer’s knowledge and experience is in some ways similar to that of a tradies toolbox.  There are array of tools available to a family lawyer that may do the job, but there is likely to be a tool best suited to achieve the desired outcome.

Binding Financial Agreements certainly fit into this category.  As a tool to settle post separation property, it can be the best available tool in some situations, but in many situations Consent Orders tend to be a much better option.

There are a number of reasons for this.  Consent Orders are Court sanctioned orders.  They have been sealed by the Court and are difficult to challenge.  The process of drafting and filing Consent Orders is relatively straight forward, not overly time-consuming in most cases, and relatively risk free to clients and lawyers.

Binding Financial Agreements on the other hand are agreements made under the Family Law Act, and require strict compliance with the Act’s requirements to be binding.  If the agreement is not drafted properly, or does not comply with requirements, it will not be binding.

Some legal practices will suggest a Financial Agreement as being a less expensive and more time effective way of resolving property settlement.

Financial agreements require both parties to have a solicitor to explain, and in writing, give them advice on the terms of the Financial Agreement. Full and frank disclosure of relevant documents should also be exchanged to maximise the chances of the Financial Agreement being binding.

Although it may seem like a quick and cost effective solution, a well drafted, well considered Binding Financial Agreement accompanied by the level of advice required under the Family Law Act can be time consuming and costly.  It also comes with a risk that the agreement may be challenged in the future and found not to be binding.

A fundamental difference between a Financial Agreement and Court Consent Orders is that once Orders are made be the Court they are final and binding. For a financial agreement, if a party wishes to rely on the Agreement at a later date, they must first satisfy the Court that the agreement is actually binding.

An example might be: The parties separated in 2015 and completed a Financial Agreement for property settlement. The Financial Agreement is then held by the parties and their lawyers. In 2019 one of the parties becomes dissatisfied and seeks property settlement different to the Financial Agreement. The party that wishes to rely on the Financial Agreement must then prove to the Court that the 2015 Agreement was actually binding. So it is not until 4 or more years after the agreement has been signed that a Court will determine whether the agreement is binding or not.

So when is a Binding Financial Agreement the best post separation option?  It is entirely dependent on your particular circumstances.  A Binding Financial Agreement may be the only available option where a limitation date has expired either 12 months after the date of divorce or two years after the end of a de facto relationship.  In these situations, a Binding Financial Agreement comes with the advantage of providing a stamp duty exemption on property transfers dealt with the in the agreement.

Other circumstances where a Binding Financial Agreement may be the better post-separation option can include more complex property settlements involving business interests, or for making binding spousal maintenance arrangements.

The best way to determine whether a Binding Financial Agreement or Consent Orders are the best property settlement option in your circumstances is to seek legal advice from an experienced family lawyer before embarking on this journey.  McNamara & Associates provide a free initial family consultation to discuss your options and advise you of the most suitable way forward for you.

Brock Harm - Associate

2 minutes with Brock Harm – Associate

By | Criminal Law, Family Law, General Information, Wills and Estates

2 minutes with Brock Harm – Associate

What is something most people don’t know about you?

  – That I am the fourth child of the fourth child of the fourth child.  No pressure there!

If you were a superhero, who would you be?

  – Batman, he has the coolest gadgets and his own butler!

Are you a hunter or gatherer?

  – I would not survive as a caveman.  I have been described as the ultimate consumer.

What’s your morning ritual like?

  – Short.  I like to sleep in too much!

If you were mayor for the day, what would you change to your city?

  – I would give everyone free rates for the day! 

What is something you would do in life if you knew you would not fail?

  – Win the Masters in golf.

What is the craziest thing you’ve ever done?

  – Gone shopping with our receptionist, Renae, at Harbour Town.  The Tassie Devil has nothing on her!

If you could take any three people to dinner (dead or alive) who would you take and why?

  – JFK, he seemed like a very interesting man and someone who knew how to have a good time.  Peter Brock, an absolute hero of mine.  Billy Connolly to bring the humour.

Where do you like to go on a Friday night?

  – Fitys Fibber Magees.  A great pub with live bands.  What can go wrong? 

What is your drink of choice?

– Almost any beer.  I’m not fussy with beer.

Describe your first kiss.

– I was a terribly cute baby so I imagine that I got lots of kisses, but I can’t remember them.

What about the kids

“What About the Kids?” Download our Free Guide on Family Law & Parenting Matters

By | Family Law

“What About the Kids?” Download our Free Guide on Family Law & Parenting Matters

Family Law – Parenting Guide

It is well known that children will be better off if their parents can co-operate and co-parent in an amicable way. Sometimes this is possible, other times this is more challenging. The intention of this guide is to give you information and advice to consider when deciding the arrangements to put in place for your children.

This guide is general advice on parenting matters; it is not adapted to your personal circumstances.

Download our FREE GUIDE  – Family Law & Parenting Matters Guide

guides

After separation

After separation – the road ahead – DOWNLOAD GUIDE

By | Family Law

After separation – the road ahead

In our experience, it is important that you approach Family Law matters with a clear mind and a clear understanding of your objectives and desired outcome from the outset. Sometimes it is best to deal with family law matters after you take the time to deal with the emotional effects that arise as a result of separation.

Download our FREE GUIDE  – The essential Family Law Guide

guides

Full-Custody-of-Children

Full Custody of Children

By | Family Law

If you intend to seek full custody of children there are some things you should know. The first one is that the term “full custody” can make judges on many occasions very unhappy. There were amendments to the Family Law Act that say the word “custody” is not to be used regarding children. The law is structured in a way to prioritise the interests of the children, and therefore the terms “live with” and “spend time with” are used.

Basically, full custody means that the child or children live with a parent and spend no time with the other parent. Arrangements of this type are relatively uncommon, as usually, it will be in the best interests of a child to spend some time with each parent.

The Family Law Act says that one of the two main considerations is to encourage the children to have a meaningful relationship with both parents. The other main consideration, which is also the highest priority, is protecting children from a risk of harm.

Therefore, if there is a very serious risk of harm to children as a result of child abuse, serious family violence, substantial drug/alcohol abuse, or otherwise, there may be an Order made that the children live with one parent and spend no time with the other parent.

The Courts will take the approach that children can spend time with both parents if there are appropriate safeguards that can be put in place to ameliorate or reduce risk to the children. A common example of safeguard type orders is supervised contact or ongoing drug testing of a parent.

Sometimes events happen when a child is living in a parent’s household that show a strong reason for a change of residence to live with the other parent. When considering a major change in the life of a child it is important to think about how this will affect the child and what can be done to make the change easier for them. It is recommended that legal advice be obtained prior to making any major decisions such as changing residence without the agreement of the other parent.

If you would like to discuss any of these issues further please do not hesitate to contact our Ipswich Family Law Solicitors on 13 58 28 for a free initial consultation.

When to Separate

When to Separate

By | Family Law

IS THERE IS A GOOD TIME TO SEPARATE?

As with a lot of questions asked in family law situations, the answer to when is a good time to separate is generally, “It depends on the situation”.

You should always be guided by what is in the best interests of children if there are children involved, and what is in your best interests.  As well as the emotional aspects of separation it is important to consider the practical and day to day effect that separation would have on you and your family.

If there are children involved then parents tend to stay together longer and may choose to separate during a school holiday period, particularly if the separation means that the children have to change schools.  Some people even wait until children are finished their schooling before they separate to minimise the disruption to the children’s schooling and allow an easier transition for the children.

If an agreement is reached by the parties about arrangements for children then they should consider formalising these arrangements either by Consent Orders or Parenting Plan.  If the children are young it will be important to think about arrangements that develop and fit as the children grow older.

If no agreement can be reached it may be necessary to make an application to the Court.  Further, if there are time restraints, such as deadlines for enrollment in school, and no agreement can be reached then it may be necessary for an urgent application to be filed.

If there are no children involved, it really is an economic decision on when parties separate.  Sometimes a party can not afford to move out of the matrimonial home and therefore they are bound to either stay in the relationship or separate under the one roof until they have built up sufficient funds to be able to afford a rental bond and be in a position to pay rent.

This issue can be magnified if one party is not working and has no income stream, it would then be difficult to separate and move out of the matrimonial home as they have no income and nothing to show a real estate agent that they will be able to afford rent.

If you are facing this predicament then you may need to consider making an application for Spousal Maintenance or an application for the sale of matrimonial property.  These applications can be complicated as a number of factors are considered by the Court when these applications are made.  These applications can be integral to assisting you moving forward after separation and therefore we encourage you to contact our office for advice on your options.

It is important to have an idea about what the future might hold for you when considering a separation. Our experienced solicitors in Ipswich will explain how the law would be applied in your circumstances so you can have some understanding of what you could expect and what you might need to consider prior to a decision to separate.

separation

What to Do Before Separation

By | Family Law, Podcasts

Separation can be an incredibly difficult time for all concerned. But can the impact of the ordeal be reduced through both an understanding of the road ahead and knowing some things before you make the move?

In this podcast, McNamara & Associates, Partner and Family Lawyer, David Millwater provides some very useful information.

Dan:

There’s little doubt that family law disputes can be incredibly stressful. Should those disputes escalate to a point where the relationship is untenable, separation often follows and at times it can happen really quickly.

 

In today’s podcast I’m talking with David Millwater a partner and family lawyer at McNamara & Associates. David, sometimes these decisions may happen in haste without the person who is leaving perhaps being fully aware of what follows and of course some things that they should put in place before the move. Is that what sometimes happens in your experience?

 

David:

Yes Dan, it is. Marital separation or de facto separation is something that involves many different factors that need to be considered. I mean, it depends on every person’s personal circumstance. In some cases you might have children involved, other cases there might be property that needs to be divided up. Some cases some of the issues might be whether each party can support themselves. There also might be issues in terms of child support.

 

It really is about assessing the relevant issues in the case. Then also, trying to give some people a bit of an insight as to what the future might hold for them if they were to separate and what could be done to look after their interests and their families interests in to the future.

 

Dan:

What’s really the starting point in that case David? You know, is it always so prudent to get some advice at the front end before contemplating separation or what’s your recommendation on that respect?

 

David:

Well, it certainly is. I suppose it’s interesting because I do have a number of clients who consult me who are considering whether to separate. The decision to separate is obviously a personal decision of theirs that I don’t have any part of but I do try and give them a little bit of an idea of looking forward to what the landscape might be should they separate.

 

They idea is to give them a bit of insight in to the different angles that might raise in the future for them. For example, if there are young children involved, I try and talk to them about, you know, what might the parenting arrangements look like in the future. What type of practicalities do we need to think about in terms of getting children to and from schools and things along those lines.

 

There are also things like looking where people might need to live and whether they’re able to support themselves. Those are the primary things that come up.

 

Dan:

David, what about emotionally? One must be in incredibly difficult time for people. Is there anything that can be done or recommendations that you make with respect to, you know, self-care and the care of their family at this particular time?

 

David:

Oh, Dan, most definitely. One of the first things that I try and do is kind of asses whether the person is in a good space to be really having a big discussion about the legal issues. Sometimes it’s really good for them to have the opportunity to talk to a counselor or depending on what it is they might need to approach a support group, such as DV connect, or perhaps talk to their general practitioner. At least even, talk it over with family and friends.

 

It is that tough of an area of the law that is highly subjective in to people’s emotional state. Quite rightly so, people are, they need that type of support all around them, not just from their lawyer.

 

Dan:

What about those occasions where there is still a significant amount of, perhaps anger between the parties as well. Do you find that in contrast, you know, working with a couple who just can’t agree at all on anything to a couple that can, obviously the letter is obviously, you know, a better approach or a better way forward?

 

David:

It is and I suppose at the level of conflict is something that we try and look at and decide how we’re best going to approach it. Our focus in all of this is to try and reduce the impact that this will have on our clients and try to make it as easy as possible for them in terms of time and stress and expense.

 

In terms of the level of conflict, it’s much better if we can try and do everything amicably and by agreement. Obviously that highly depends upon the circumstances that we’re faced with because if there is domestic violence or other very important issues, then we deal with those matters a little bit differently. We try and insure that the parties possibly don’t have any contact with each other.

 

Ranging from that end of the spectrum down to the other end of the spectrum, where people are relatively amicable it’s sometimes useful to have a very collaborative approach and perhaps a round table discussion or a mediation early in the case. Really, it does come down to the individual’s circumstances and I try and make an assessment of how I think it’s going to be best to progress their case to try and get them what they want with minimal stress and worry out of it, I suppose.

 

Dan:

David, the firm offers an initial free consultation as well doesn’t it? It’s obviously a good opportunity to get a bit of a heads up about the road ahead.

 

David:

Well, Dan, that’s right. I suppose one of the things with family law is that, because as I mentioned earlier, it’s a very highly emotional type of a subject for people to be going through. I think it’s really important for them to have a little bit of piece of mind early on in the case.

 

The idea with the first free, sorry first half free consultation is that I can sit down with people and find out where they’re coming from and tell them somethings that might help them to understand the process a little bit. At the same time, I can make a bit of an assessment of their case and give them some practical advice.

 

Really, the idea is that we understand that people come from situations where they might be very much struggling just subsequent to separating. I guess by just investing some time with them, it allows us to try and help them to begin with. Then, we can see where that all leads to afterwards.

 

The_consequences_of_not_making_an_EPA

The consequences of not making an enduring power of attorney

By | Family Law

Imagine you are travelling through India on holiday. You are on a bus tour in a remote area and the driver gets into an accident. You are seriously injured and taken to hospital. For a few days you are unconscious and unable to make decisions for yourself. Your family and friends know you are there and they are trying to make arrangements to get you home for medical treatment. They call your travel insurer but they have no authority to make a claim on your behalf so that your medical costs can be paid for and a flight can be booked for you.

Meanwhile, back home your bills are coming in. The bank is asking why you haven’t paid your mortgage. Your family rings up to let the bank know what has happened but they won’t speak to them because they don’t have any authority. The bank asks if you have an attorney who can come in and sign hardship forms so that your payments can be placed on hold, but you didn’t think about making an enduring power of attorney before you left.

What a mess! Your family and friends have to put the funds up to pay your costs and get you home. Your bills are piling up and debt collectors are now calling. Nobody has any authority to manage your affairs.

What about if the accident is so serious that you are no longer capable of making decisions for yourself?  An application is made to the court for a guardian and financial administrator to be appointed for you. You don’t get to decide who that is going to be. It’s possible that there is no one suitable in your family or the court considers that members of your family are in conflict with one another so it is best to appoint someone independent. Now all your financial affairs are being managed by the Public Trustee and decisions about where you live are being managed by the Public Guardian. Your family doesn’t get to make any decisions for you and they know you best. If only you had appointed one of them as your attorney before you went overseas – all of this could have been avoided.

Don’t realise that you have made this mistake once it is already too late!  Let us help you with an enduring power of attorney to avoid this scenario happening to you.

Contact us today on 3816 9555 or email [email protected] to arrange an appointment with one of our Ipswich Lawyer who practise exclusively in this area.

Survivor Australia Lee And El

The sole survivor de facto property settlement

By | Family Law

If either Lee or El of Australian Survivor win the $500,000, and then break up, would they have to split the winnings?

With Lee and El being poised with a strong chance to win Australian Survivor, and the recent admissions that they are actually in a relationship, would they be classed as de facto and have a claim against each other upon a separation?

The initial reaction might be, No, its an individual game. Or you might think, Yes, because they have worked together as a couple.

Under the Family Law Act a de facto relationship is deemed when parties have lived together for over two years. However where someone has made substantial contributions and not being able to claim would result in serious injustice, then de facto laws may apply for a much shorter relationship – maybe even 55 days on a reality TV show!?

The legislation looks at contributions as being, a contribution (other than a financial contribution) to the acquisition, conservation or improvement of any property of the parties. Perhaps working as an alliance, manoeuvring to vote off other contestants, and executing a strategy as a couple, would be contributing to the other person acquiring or winning the prize.

If de facto laws do apply to a Survivor winning couple then it would be a very interesting task to work out how much of the $500,000 they might each deserve. Usually the Courts assess each party’s contributions. In this case maybe who won the most challenges or made the most strategic decisions? Possibly the actual winner would get most of the money and the runner up then gets a share depending on how much contribution the Court says they made to the win?

In cases involving lottery wins the Court looks at who bought the ticket, and the source of the funds that purchased the ticket. Survivor is of course different to buying a lottery ticket, but in cases where the funds used to buy the ticket were joint funds, the winnings are usually joint as well. So, if the skills, strength, tactics and teamwork of two people win $500,000, and if they are a couple, haven’t they both substantially contributed and therefore need to share the winnings?

Even if the Court was asked to consider the question of a de facto Survivor prize division, perhaps the Court would not be overly interested in applying the law to such a novel situation.

Maybe a relationship forged in 55 days of minimal food, minimal shelter, and plenty of paranoia will stand the test of time and this will never be known. But while we wish Lee and El all the best, it certainly would be an interesting day in Court!

Brangelina

Brangelina- Where to now?

By | Family Law

It looks like it is over for Hollywood power couple Brad Pitt and Angelina Jolie. With six children in tow and an asset pool most of us can only dream of, their lives seem miles apart from we mere mortals.

But are they so different? Here are five reasons why Brad and Angelina aren’t so different to other separating couples.

  1. Brad and Angelina have children together. However they feel about each other, they will have to cut through conflict to make decisions about parenting.
  2. It is likely they will have different ideas about the best interests of the children and the usual disagreements about schooling, medical care, religion and upbringing.
  3. Brad and Angelina will have to negotiate a parenting plan or parenting orders. Will they choose their local McDonalds for changeovers?
  4. Although it is very likely they will have a pre-nuptial agreement, there may still be disagreement about property acquired in the relationship. There are always items you can’t put a price on.
  5. Brad and Angelina will want to reach a settlement about children and property as quickly as possible. They too will want certainty for their children and to move on with their lives.

Need family law advice? Contact McNamara & Associates on 13 58 28. 

family-lawyers-ipswich

What School Would a Judge Choose?

By | Family Law

The parenting decision of where a child is to attend school is an important one to parents and children alike. Often separated parents have different schooling ideas as different options may be less practical or less desirable to one parent. If parents cannot agree on change to a child’s schooling, an application can be made to the Court to decide the matter.

There are a number of factors the Court will take into consideration when deciding which school a child should attend:

(a) where and with whom the child usually lives;
(b) the distance the child is required to travel and from school each day;
(c) the practical burden placed on each parent in transporting the child to and from school including travel time and impact on work commitments;
(d) the investigations by either parent into the schooling opportunities available to the child at the proposed school, and whether the proposed school is better able to meets the child’s particular needs;
(e) the views of the child;
(f) the child’s ability to cope with the change in schooling;
(f) any other factor the Court considers appropriate ,e.g., siblings attending proposed school.

When weighing up all of the schooling factors the Court must consider the overall best interests of the child as the primary consideration, but it is not the only consideration. The emotional wellbeing of the parent with whom the child resides plays a huge role in their ability to parent well and the Court will take this into account.

Prior to asking a Court to decide which school a child should attend, it is important that parents communicate and attempt to decide together what will be best for their child.

family-law-and-social-media

Family Law & Social Media

By | Family Law

It is more common these days for people to be living their entire lives online, and for the most part, for the whole world to see. While some feel that this is their right to freedom of expression, it might be making a rod for their back.

Frequently facebook page printouts and other social media printouts become evidence that is shown to the Court in Family Law affidavit material.

It is extremely important to be careful what you post.

Sometimes the most innocent of photographs posted on social media can have a devastating effect on a parenting case. “A picture is worth a thousand words”. Even the most devoted and responsible parent might find themselves on the defensive when shown an unfavorable facebook photo or post. Photos posted on social media in the spur of the moment can confirm the allegations of the other party or can create a negative opinion in the eyes of the Court.

A common example is the accusation that one parent drinks alcohol to excess while the children are in their care. This allegation is normally denied and contested at an interim hearing, with very little independent evidence to sway the Judge either way. However a photograph on Facebook showing one party consuming alcohol at a family party where the children are present, might go a long way to support that allegation at an interim hearing and lead to a Judge to side with one party over the other.

The other practice that people in Family Law situations should avoid is the social media rant. Posting a diatribe about your ex partner on any social media platform will not only inflame the dispute, but you can be sure that it will find its way onto the back of an affidavit and be used to show that you do not have any insight into the dispute and you want to air your dirty laundry in public.

The Court generally takes a dim view of one party making public statements of what should be private matters between the parties. If the content of the post is to do with arrangements for your children or complaints you might have about the other party we recommend against making the post.

If you are thinking about posting family related issues on facebook or social media, just stop and think, “When this is read out in Court, am I going to be entirely proud of what I have written?” If the answer is “no”, then don’t post. If the answer is “no”, then we recommend you resist the temptation to post and discuss it further with your lawyer.

If you are going through a relationship breakdown and need some guidance to navigate your way through please do not hesitate to contact McNamara & Associates on 13 58 28.