Top 5 Questions About Property Settlements

enduring powers of attorney

Separation is difficult, but dividing your property, assets, superannuation and debts doesn’t have to be. Below, we address 5 of the most commonly asked questions that our experienced team of QLP family law solicitors answer every day.

1. Do both parties have to agree to separate?

Under Australian law and regardless of whether you are in a de-facto relationship or a marriage, a party does not need permission or agreement from their spouse to separate or for separation to take effect. Separation occurs when one party communicates to the other that they no longer wish to continue in the relationship. This can be verbally articulated by a party to their spouse. Alternatively, it can be communicated in writing.

Once separation has been communicated the next step is to determine the size of the asset pool.

2. What comprises an “asset pool” for the purpose of a property settlement?

All assets, liabilities and superannuation of the parties must be disclosed in property settlement matters, regardless of whether the asset is one party’s name or both. Assets held outside of Australia must also be disclosed.

After the asset pool has been determined, then it may be divided between the parties.

3. We are married so our asset pool gets divided 50/50, right?

A common understanding is that marriage creates an automatic entitlement of both parties to a 50/50 division of their asset pool.  This is false. There is no automatic entitlement to a 50/50 division simply because you are (or were) married.

Many factors are taken into consideration in a property settlement, these include:

  • The value of the nett asset pool;
  • The length of the parties’ relationship, being from the time that the parties commenced living together and separated on a final basis;
  • The financial position of the parties at the time of them commencing cohabitation, being the values of assets, superannuation and liabilities contributed by each party to the relationship;
  • The financial contributions made by each party during the relationship, such as the income earned, inheritances and payouts received;
  • The non- financial contributions made by each party during the relationship, such as duties around the home including cooking and cleaning and care responsibilities for children;
  • The ages of the parties;
  • The individual health needs currently of the parties and the anticipated impact of those needs to a party in the foreseeable future;
  •  The earning capacities of each party;
  • The ongoing care arrangements for the children; and
  • Any trust structures or overseas assets that provide a financial benefit to either party.

4. How long do we have to wait to divide our assets?

The process of negotiating and formalising of agreements relating to the division of property can occur immediately upon separation. There is no requirement for you to delay arrangement of a property settlement.
However, it is important to note that there are time limitations within which you must seek a property settlement. They are as follows:

For a defacto relationship:           You have 2 years from the date of your separation; and
For a marriage:                        You have 1 year from the date that a divorce is granted

Within these time limitations, it is best practice to have either:

  • Formalised your agreement in a legally binding manner (such as an order or a Binding Financial Agreement); or
  • To have commenced proceedings in the family courts for a property settlement.

If you do not comply with these time limitations, you need to the permission of a judge of the family courts to allow you to proceed with an application to seek a property settlement from your spouse.

5. I have told my partner that I want to separate. What’s next?

Communicate your separation to a third party.

Although there is no formal requirement for you to tell a third party that you have separated from your spouse. If you are not ready to tell a friend or family member, create a diary entry detailing the discussion between you and your partner.

Take copies of and collate important financial documents.

It is quite common for one party in the relationship to have primary control of the finances and for the other party to have little to no knowledge of the parties’ financial position. Under the Family Law Act, both parties have an obligation to provide “full and frank” disclosure to the other of their financial positions. This means that each party must provide to the other details of their finances such as:

  • The balances of bank accounts in their sole or joint names;
  • The balances of any superannuation accounts in their names;
  • Evidence of any debts or liabilities in their sole or joint names;
  • Details of any vehicles, boats, motorcycles in their sole or joint names;
  • Insurance policies in their sole or joint names.

Although both parties have this obligation upon separation, if you are considering separation or have decided to separate, it is prudent to familiarise yourself as best you can with your joint finances to gain a better understanding of your financial position.
The types of financial documents that are important to family law matters include but are not limited to:

  • Bank valuations of residential or commercial properties;
  • Taxation documents including Individual Tax Returns and Notices of Assessments;
  • Bank statements;
  • Superannuation statements;
  • Credit card statements;
  • Personal loans;
  • Share portfolios;
  • Registration documents that include year, make and model of vehicles;
  • Insurance policies;
  • Documents that relate to what each party owned at the time of the parties commencing to live together; and
  • Documents that relate to any inheritances or payouts received by either party.

If you have access to this documentation, take copies of the documents and keep them in a safe location.

If you do not have access to any financial documentation, there are other ways you can obtain information, such as:

  • If you are unaware of the mortgage owing on your property and you are a borrower on the loan, contact your bank lender to help you to understand the values and structures of your loans.
  • Contact a local real estate agent to obtain an appraisal of the market value of your property.
  • Write off to your spouse’s superannuation fund under the Family Law Act using a Form 6 and Superannuation Information Request Form to obtain a valuation of their superannuation balance. You could also do this to obtain a valuation of your own superannuation account.
  • Keep an eye on the post and make note of any financial institutions sending correspondence to you or your partner. You cannot open any mail that is not addressed to you, but you can keep a journal of the different banks or financial institutions writing to your partner.

Make an appointment with a solicitor who specialises in family law for preliminary advice.

Discussions about the division of assets and household bills often occur shortly after separation. It therefore important that you are informed about the processes and your likely entitlements under the Family Law Act so that you can make informed decisions when negotiating with your spouse about such matters.

We recommend that you obtain independent legal advice from a solicitor that specialises in family law as soon as possible after separation, even if you remain amicable with your spouse. Your appointment with a solicitor is confidential and there is no obligation for you to seek further advice or assistance thereafter. Our experienced team at Queensland Law Practice – Family Law division has the necessary skill set and experience to guide you through the ‘sometimes complicated’ Property Settlement and Asset division process. We also offer discount rates on initial consultations to help identify where you are in the process and help you get to where you need to be.

Our experienced team at Queensland Law Practice – Family Law division has the skill set and experience to guide you through the ‘sometimes complicated’ Property Settlement and Asset division process. We also offer discount rates on initial consultations to help identify where you are in the process and help you get to where you need to be.

 

 

How to respond to a Protection Order Application

How to fight a Protection Order Application

Domestic violence and family violence has become a concerning trend in the midst of separation and family law disputes. When people are involved in relationships or are in the depths of separation and believe that they are or have been subject to domestic violence, the avenue for legal recourse is to seek a protection order from the court. A protection order may be sought by the individual themselves or by police on behalf of the alleged victim.

It is becoming increasingly common for protection orders to be used as leverage in family law disputes particularly with respect to children’s care and living arrangements. Given this disturbing movement, it is fundamental that if a protection order has been filed against you, that you, the respondent, are aware of your legal options when responding to a protection order application.

There are 4 options available to a respondent in domestic violence proceedings. These are:

  1. Consent;
  2. Consent ‘without admissions’;
  3. Negotiate an Undertaking; or
  4. Contest the application.


Let’s look at each of these options in further detail.

1. Consenting to an Application for a protection order

If you consent to an Application for a protection order you agree that the facts contained in the application are true and correct. This includes any allegations against you being domestically violent or having perpetrated domestic violence against the aggrieved.

Consenting to a protection order can result in serious consequences when it comes to family law matters particularly parenting matters. A finding that you have committed domestic violence against the aggrieved or any named persons can be used in support of an argument that you pose a risk to a child or children of the relationship, which can ultimately affect the ongoing care and living arrangements for the child or children.

2. Consenting ‘without admissions’ to an Application for a Protection Order

If you consent without admissions to a protection order, you are agreeing to the court making a protection order, however, you are not admitting to the allegations contained in the application or the facts alleged by the aggrieved.

Often parties choose to consent ‘without admissions’ to avoid lengthy, hostile and costly proceedings. A protection order issued on a ‘without admissions’ basis does not assume that an act of domestic violence has taken place, rather it says that you agree to a protection order being in place because you have not committed any acts of domestic violence against the aggrieved.

If you fail to appear in court after having been served with a protection order application or fail to meaningfully engage in protection order proceedings, you may find that the court will make a temporary protection order or a final protection order in your absence. This will not be made on a ‘without admissions’ basis and can result in an adverse inference against you.

Whether you consent with or without admissions, a protection order will be made immediately and you will be provided with a copy either directly from the court or by post. This ultimately means that your matter is finalized by way of a protection order in the conditions imposed by the court or negotiated between the parties or their lawyers. The conditions and prohibitions in a protection order can be tailored to reflect the particular circumstances of the case.

3. Negotiating an Undertaking

The applicant and/or aggrieved in a protection order may agree to withdraw their application on the basis that the respondent provides an undertaking. An undertaking is not an order of the Court, rather it is a promise to the court that you will or won’t do certain things. The most common condition being ‘that the respondent will be of good behaviour towards the aggrieved and not commit domestic violence’.

An undertaking can include the same or similar conditions as a protection order and can be for a specified period of time. Generally, the court will require an undertaking in writing and signed by the parties although, it is possible for the respondent to give an oral undertaking to the court.

There are two critical differences between an undertaking and a protection order. These are:

  1. A breach of an undertaking cannot be enforced and is not considered a criminal offence whereas a protection order, on the other hand, carries significant penalties if breached. An undertaking can, however, be used in evidence at a later date if the aggrieved decides to bring a new application for a protection order. This usually occurs after a breach of the undertaking has taken place.
  2. When commencing proceedings in the Family Law court the necessary paperwork (an Initiating Application (Family Law) form) requires a copy of any existing undertakings to be provided to the court. Although undertakings must be provided, the existence of an undertaking is not a specific factor that must be considered when determining custody of or the best interests of a child or children.


In short, undertakings provide parties with the opportunity to negotiate and resolve their protection order proceedings without having to incur the emotional trauma and expense of a trial.

4. Contesting the application for a protection order

If you completely disagree and wish to fight a protection order in its entirety then you should choose to contest the application and the court will have to make a decision whether a protection order is ‘necessary or desirable’ having considered the factors contained in the Domestic and Family Violence Protection Act 2012.

The application will be set down for a trial in which you and the aggrieved and/or applicant will need to file affidavits as directed by the court and will be subject to cross-examination. A trial can be a costly and traumatizing process and is something that should be avoided where possible. During the trial, the Magistrate will consider the underlying facts of the case and formulate a conclusion. At the end of the trial, if the court orders a protection order then rightly or wrongly, it is deemed in the eyes of the court following a trial there is a finding of fact against you that you have perpetrated domestic violence against the aggrieved.  That is a conclusion by a Magistrate regarding the underlying facts of the case under consideration.

Domestic and family violence can at times play a significant role in a relationship breakdown and the political and legislative responses have been geared towards making systems for obtaining protection more ‘user-friendly’. This creates a problem for individuals who have to respond to applications that are malicious or vexatious. In the absence of physical abuse, domestic and family violence or lack thereof can be difficult to prove which makes the trial process an impractical exercise for respondents. As such, it is critical that you obtain independent legal advice upon being served with a protection order. Your legal adviser should be able to outline the options available to you and give you an in-depth analysis as to how this could affect your relationship with the aggrieved and any subsequent matters such as parenting and property settlement matters. Often the ramifications of a protection order do not end once the protection order is made. The conditions and restrictions must be considered holistically in the context of your relationship and your family.

What are my rights? What does this protection order mean for me my child and/or my children? What should I do if a protection order is made? These are questions that should be answered by your legal advisor.

 

 

Same Sex Marriage Australia – What Changes?

Same Sex Marriage Australia

So the results are in and 61.6% of Australia have voted in favour of permitting same sex couples to legally marry.  We all know that when the law passes it will mean that same sex couples have the option to go through the ceremony and have their relationship lawfully recognised, but what changes will this really make in regard to separation and divorce?

Obviously it all depends on what the end result law actually is however based upon the current laws in place…. The answer is …Not much.

Under the Family Law Act 1975 there are currently 2 different recognised relationships being Marriages and Defacto Relationships. Marriages currently can only be between a man and woman whereas Defacto Relationships can be between a man and woman or same sex relationships.

There are minor differences to how the Family Court currently deal with marriages v DeFacto relationships. In essence, however, the court still use the same rules to assess the division of assets in the event of a separation.

Despite the issues surrounding religious freedoms which may alter the framework surrounding same sex marriage, the fundamental change to the law will be that the definition of marriage will be changed to include same sex relationships.

If we assume that no other major changes will occur then a same sex marriage will have to comply with the same requirements for current marriages. If any same sex couple wish to get married and subsequently separate then this is the main differences to the rules surrounding DeFacto relationships:

  1. In order to obtain a divorce (which simply means that a person can remarry.  It does not include a division of assets) to dissolve a same sex marriage the parties will need to be separated for a minimum of 1 year and 1 day before they can even apply to the court.  There is no maximum time limit in order to apply for a divorce. In theory, someone could apply for a divorce 50 years after they have separated.  This is different to Defacto relationships where there is no formal requirement to dissolve a relationship. Ie. It can be as simple as one party saying “It is over”.

  2. The time limits in order to finalise the division of assets between parties to a relationship are different for marriages and Defacto relationships.  In De Facto relationships the parties MUST have either entered into a formal order to divide the assets of the parties or commenced an Application in court to divide the assets of the parties BEFORE the parties have been separated for 2 years.  Once the parties are separated for more than 2 years the parties are legally prevented from seeking a formal division of their assets without formal consent of the court.  Formal consent is never guaranteed and is a costly exercise.

  3. The time limit for a marriage is very different to Defacto relationships.  The time limit for a marriage only commences once a certificate of divorce has been issued by the court.  An asset division can occur at any time up to 1 year after a divorce certificate has been issued by the court.  This means that if a party takes their time in applying for a divorce this will directly affect the time limit to do an asset division.  Technically given that a person could wait 50 years to apply for a divorce, this would mean that if no formal asset division has been completed then the other party could bring an application to the court for asset division up to 51 years after the couple has separated.

  4. For the Family Court to have jurisdiction over a Defacto relationship, the parties need to prove to the court that at least ¾ of the relationship occurred within a relevant jurisdiction.  If the relationship did not take place within the Family Court jurisdictional areas then the Family Court cannot deal with the matter and it will need to be dealt with in the relevant state courts.

  5. In order for the family court to have jurisdiction to determine a marital separation the court simply needs to be satisfied that the parties are present in Australia at the time that the application is made in Australia.  This means that if the parties were legally married in another country then the parties will be able to apply for a divorce in Australia.

A very important question that will need to be determined by the new law to be passed by parliament is whether same sex couples who live in Australia but married in another country prior to the new law being passed will automatically have their relationship recognised or whether they may have to go through either a registration process or another wedding in order to have the relationship recognised by Australian law. I would assume that the Same Sex Marriage bill will cater for those same sex couples who are already married but we will have to wait and see.

What will not change is how the court determine how to divide up the assets between the parties. The law as it currently stands requires the court to go through a 4 step process in order to assess the contributions and needs of the parties.

Step 1

The first step is to work out exactly what is up for division between the couple. This includes all assets regardless of whether the asset is owned by 1 party exclusively or owned jointly by both parties. It includes ALL assets, not just a property.  This means that it includes such things as houses, furniture, jewellery, motor vehicles, caravans, jet skis, savings, shares, Superannuation etc. All of the assets are added up and then all the debts of the parties are deducted.  The debts again include all debts regardless of who owes the debt. This includes such things as mortgages, personal loans, car loans, tax debts, credit card debt, hecs debts etc. The amount left over from deducting the debts from the assets is known as the net property pool.  This is the value that the court will consider to be up for division between the parties.

Step 2

The second step assesses the financial and non-financial contributions of the parties towards the relationship. The court will assess contributions based upon the length of the relationship.

Financial Contributions are assessed as any assets brought into the relationship, anything earned during the relationship and any gifts or inheritances received during the relationship.

Non-Financial Contributions are assessed as those actions which do not receive a financial remuneration but nevertheless have contributed to the relationship. This is commonly such actions as raising children, cooking, cleaning, mowing and landscaping, house renovations, doing bookwork for a partner’s business etc.

The contributions are assessed on a general basis and a percentage is allocated to the parties.

Step 3

In step 3 is commonly referred to as the Future needs section. The court start with the percentage allocated in step 2 and then make adjustments to the percentages based upon the specific future needs of the parties.  The main issues that the court will consider is such things as who will have the primary care of the children, if either party is suffering from serious health issues that either effect their ability to work or require ongoing treatment, any difference in the ability to earn an income and the parties ability to recover financially from the separation, and any financial resources available to either party. Financial resources are such things as property owned overseas, any interest in a trust etc.

Step 4

In step 4 the court will step back and look at how the assets are being divided and make sure that the division is just and equitable on a holistic basis.  This step becomes very relevant when one party is receiving significant amounts of superannuation while the other party is receiving cash or assets that could be easily sold and converted into cash.  A court will not permit one party to take all the cashable assets while the other party takes Superannuation that cannot accessed for many years.  The reason for this is that both parties need the opportunity to recover financially from the separation which cannot be done unless both have cashable assets available to them.

As you can see, there will not be significant changes for a same sex couple who decide to take the step to change their de facto relationship into a marital relationship. Whichever option is chosen it is important that you know your rights before you decide to separate so that you have a strategy in place in order to make your separation as smooth and painless as possible. I always recommend that you receive advice from someone who has a clear understanding of family law.

If you think you may need more advice before determining which way to take your relationship, contact Queensland Law Practice.  We make it our goal to always have lawyers available to provide you with the legal advice that you need.

Will Kits: A cheap solution or expensive problem?

 

Online Will

As like any normal business from time to time I like to offer special offers for legal services, and as seems to go with legal advertising, occasionally people take it upon themselves to make comments (both good and bad) about the advertised special.

I received a shock when I read the many comments responding to the most recent Ad, being a Ad for the preparation of Wills. I always thought that people would always want to ensure that their Wills were prepared by qualified and trained lawyers to ensure that their family would not be left to clean up the mess after their death. Obviously I was wrong as the most common comments were similar to these “lawyers are just trying to rip you off…just do your own kit”,”why would I pay for a lawyer to do it when I can do it myself”, or “just buy a Will kit and do it yourself for $20”.

As you can imagine I turned over in my not yet utilised grave at the thought that society could have so little regard for a document which could single-handledly set up a person for life or destroy another person’s future by the creation of one little document. In a society where we study for many years, save pay cheque after pay cheque and forgo those glamorous Prada shoes in order to create a financial nest egg, it seems ironic to me that all our hard work would be thrown away in the eleventh hour by relying upon some cheap knock off document that may or may not have been created correctly.

Obviously, as I am a lawyer, I am slightly biased towards people having their Wills drafted properly, by lawyers as I receive an immediate financial gain by doing so. However there are other reasons why a Will Kit should never be preferred over a lawyer created Will and I have listed only 10 of them (because, well frankly, we have to stop somewhere).

1. You have to actually know the law in relation to Estates before you can decide how to divide up your assets.

Yes, I know, it comes as a shock, but how are you able to know that what you are writing in the Will Kit is in fact capable of being given away to someone else. It will come as a great surprise to many people that the assets that they think they are giving away in their Will, do not actually form part of their estate.

2. You can’t just simply ‘write someone out of your Will’.

To exclude someone from your will is extremely complicated to achieve. Many lawyers would suggest that it is almost impossible to do so. There are many different considerations to take into account in order to have your will set up in such a manner to make it less likely to be contested. It may require you to prepare an Affidavit to be placed with your Will, or you putting aside evidence to support your reasons why you want to exclude someone from your Will. Which ever strategy you take, to write someone out of your Will, it is clear that a Will kit does not have the ability to deal with this situation.

3. Superannuation may or may not form part of your Estate

Superannuation is an extremely complex area. Whether your Superannuation is included in your estate or not will depend on how you have set up your Superannuation or whether you have completed a Binding Death nomination. If you haven’t completed a Binding death nomination then the rules about how your Superannuation is divided are dramatically different to the rules in relation to dividing up your estate. Your Superannuation will be divided between your family in a manner to be determined by your Superannuation trustee. This could have unintended consequences as you may end up with a family member receiving a large sum of your Superannuation in circumstances where this is contrary to your wishes in your Will. As such it is important that your the correct forms and arrangements are organised for your Superannuation at the same time that you prepare your Will.

4. Family Trusts are not part of your estate

Normally people decide that they will create a business doing something they love. They go off to an accountant and the accountant determines that for tax purposes, the business should be set up in a Family Trust. The trust is set up and apart from minor conversations had with the accountant at Tax time, very little conversation is ever had about the Family trust going into the future.

But what most people don’t realise is that once a business or any asset is created within or placed into a Trust it is no longer considered to be an asset owned by you. In turn this means that you cannot gift anyone any asset owned by the Family trust. Further if you have gone through a separation and your ex-partner is a beneficiary in that trust then it may have unforeseen consequences by transferring an asset to your ex-partner.

The only way to fix this issue is to revisit your trust deed and ensuring that the trust deed divides the assets in the manner that you would hope to achieve and make any amendments to the deed if necessary. Again this is an issue that cannot be addressed in a Will Kit.

5. How you buy your house will determine whether it is in your estate

One of the least known issues that I have come across in my career, is the laws surrounding Joint Tenancy and Tenancy in Common. When I question a client as to whether the property that is owned with their partner is as Tenants in Common or Joint Tenancy, the most common response is “oh we bought it jointly”. When I delve a little further it becomes quite apparent that client’s usually do not know how they own property.

Why is this important? Because this tiny little issue will determine how the property will be dealt with upon your death.

If you own your property as Joint Tenants then the property will transfer to the surviving partner (listed on the title deed) immediately upon your death. The property will not form part of your estate.

If you own your property as Tenants in Common then your property will be divided pursuant to your Will as part of your estate.

Again Will Kits don’t tell you about these issues. You might go to all the trouble to do up the Will only to find that the assets you really wish to leave to someone are no longer part of your estate.

6. Testamentary Trust (Trusts for Children)

One of the biggest motivations behind people creating Wills is the need to protect their young children financially in the event of their death. Obviously if children are underage, then arrangements will need to be made for the children and this can be done by setting up a trust. The most common way to create a trust is to do so within your Will but can also be created outside of your Will as well. However it is set up, the trust needs to cater for such things as the children’s education, living expenses and responsibilities of the trustee.

As a trust can have serious consequences after your death by specifying exactly what I trustee can or cannot purchase on behalf of the children, it is something that needs to be carefully written and considered. A will kit fails to take into account your personal circumstances and unfortunately there is no “one size fits all” arrangement when it comes to preparing trust deeds.

7. Succession Planning

You may take the view that ‘who cares’ what happens after your death and you would not be alone in taking this view, however if you knew that your failure to address some basic issues before your death would create some very large financial and possible taxation ramifications would you still be so flippant about your Will.

Leaving different assets to different people may have unforeseen taxation consequences when combined with the recipient’s own finances. A property may create Capital Gains, a business may have GST components involved. There are ways to set your Will up in a manner that leaves your beneficiaries in the best financial position possible. This requires an in depth discussion with your accountant and your lawyer.

8. Adequately Identifying Beneficiaries and Belongings

A Will kit is enticing for many reasons but the main one being its simple nature. Everyone would enjoy a form where we could simply state who was to have your belongings and that would be the end of it and this is what a Will kit promotes.

Unfortunately though, even the most basic of directions can be complicated when looked at under scrutiny and this tends to be an area where Will kits get regularly overturned.

When completing a Will kit, people tend to forget that other people are reading the document and those other people may not know a person or asset by the same name. This in turn leads to confusion and the Will gets overturned. For example, “I leave my house to my husband”. If you have been married twice and now separate from both men then it is open for interpretation as to which husband was intended. The word “house” could mean multiple different properties if the maker of the Will has more than 1 property.

Wills need to identify beneficiaries and belongings specifically. Further in the event that the person who you intended to leave your assets to has dies before you then you need to have a fall back position. That means you need to identify who else should be given your estate in the event that your first choice has died. You also need to allow for changes to your estate to occur. What I mean by this is that if you specifically refer to a house at 1 Smith Street, Eagleby Queensland then what happens if you sell that house and move.

Lawyers are trained to draft up your Will in a manner that takes into account the ongoing changes to your estate and to take into account contingencies. A will kit doesn’t allow for any change in your circumstances or your estate.

9. Blended Families

Where you have children from a previous relationship preparing a Will can become extremely complicated. The basic rule of “everything goes to my husband and in the event of his death then it goes to my children” can be completely fraught with problems. The reason for this is that if everything is left to the new partner, then the likelihood is that the children from a previous relationship will not take anything from the estate. This then opens the Will up to being contested by the children.

If you leave everything to the children and nothing to the new partner then the new partner will receive nothing from your estate. This again leaves the Will open to being challenged.

Wills related to delicate blended families need to be carefully worded in order to address all relevant persons who have a potential claim against the estate.

10. Witnessing Requirements

The final and biggest concern with Will kits is the failure to witness or deal with the document correctly. People tend to ‘just get someone at home’ to witness the document. More times than not, the person at home is also a beneficiary in the Will or a partner of a beneficiary in the Will. By witnessing the Will incorrectly you can void that person’s interest in the Will.

Further the handling of the Will once signed is of great importance. A will cannot be unstapled, written on, corrected or amended. By making an alteration to the Will in any manner can result in the Will being voided.

Wills are serious documents which have serious consequences for your family and loved ones. Will it might be appealing to have your will done quickly and cheaply the fact is that failure to give your Will the time it deserves could result in a disaster after your death. All it takes is one mistake for your entire Will to be invalid. The problem with this of course, is that the mistake will not arise until after your death and therefore cannot be cured.

Because your families’ future matters….Prepare your Will correctly.

The Seasons For Separation

child support

So the Christmas tree is up and all the presents purchased.  Everyone says Christmas is a time where families get together and like some B Grade Disney movie, everyone forgives each other and all is happy and peaceful in the world.  So now let’s get real.  The fact is that more couples separate around the Christmas period than any other time of the year. So why is this the case?

Now I am no psychologist but here is what I have noticed.

  1. Throughout the year, couples who are struggling in a relationship are able to limit the amount of time they spend together. One or both work, the children have school and sports to attend, in essence lives are busy.  By not spending much time together it allows the couple to not address those important questions about their relationship.  In other words, couples put it in the basket to be dealt with at a later time.  Unfortunately, at some point the basket needs to be sorted.
  2. In some relationships, people take the view that they will simply ride out the relationship until after the Christmas holidays, so as to not upset the other person or the children. Maybe the children are going through exams and they want to make sure the children are not disrupted at a crucial time.
  3. Christmas time comes around, the kids have finished school for the year, businesses sometimes shut down and both people are forced to have time off for the holidays. Sometimes couples spend more continuous time together for the Christmas holidays then they do all year.  This can lead to growing tensions.
  4. Then we get to the actual Christmas day festivities. Here families are forced together by a moral compass that tells them they should spend time together despite the fact that no-one gets along and one person would rather gnaw their own arm off then spend more than 5 minutes with a family member.  Add to this emotionally strained day, some alcohol and the errand negative comment and you have the catalyst for some serious arguments. The straw breaks and one person just simply cannot carry on in the relationship any further and speaks up.

Now obviously there are many reasons why people separate but this trend is one that I have been exposed to over the years.

So now that there is a separation, what next, what do you do? Who has the kids for the rest of the holidays? Who do I speak to when all law firms are closed?

The first thing to note is that you don’t have to rush into anything quickly.  There are no rules as to what should occur at separation.  If you choose to you can stay or leave the residence.  Hopefully you are able to decide between yourself in relation to the children for the holiday period.  If you are not able to come to an agreement then again there are no rules as to what should occur, however, it is important to consider the degree of disruption to the children when determining what should occur.

It is important that you secure financial accounts to ensure that you and the other party have funds available to you over the holiday period.  If you are concerned that the other person may try to sell off assets or hide away funds, then it is prudent to secure these items.

Finally, while most firms will be closed for the Christmas period, remember this:

  • it is only for a short period of 2 weeks;
  • the other person will also not be able to access a law firm for that period of time;
  • the courts are closed (unless the matter is exceptionally urgent);
  • it is very difficult to dispose of significant assets in such a short timeframe and while all common services are closed.

If you still desperately need legal advice during this period, then Queensland Law Practice is still available to speak with you.  Call 0423 856 772 to speak to a lawyer over the Christmas period.

 

Because your Future Matters.

25 Extremely Bizarre Court Cases

From time to time we like to keep things a bit more light hearted here and we came across this video by List25 which goes over 25 court cases that surely stuck in the minds of all involved. It definitely highlights some of the more extreme legal cases around.

Child Custody & Separation: What are the Rules?

child support
So you and your partner are having problems.  Maybe you have already separated….maybe you are just thinking about it.  One of the main questions I get asked by my clients in Child Custody matters is what is the law concerning children and separation.  So this article is to help clarify the law regarding separation and child custody.  Before I start though, I need to clarify that there are always pros and cons of any course of action you take at separation so in no way am I advising anyone to take a specific type of action.  At the end of the day, if you are not sure what is the best thing for you to do then obviously speak to a lawyer.

 

Who gets the children?

First and most importantly, you need to understand that there is no law to say who should have the custody of the children at separation.  Therefore it is up to both biological parents to determine the arrangements for the children at separation.  There is no such belief that women will automatically end up with the children.  While this may have been the case many years ago, the Family Law Act has been specifically drafted to remove a preference of any sex when determining custody matters.

 

What happens if we can’t agree who gets custody of the children?

This is where things can become messy but technically if one parent seeks to unilaterally impose arrangements for the children then this is technically permitted.  There are obviously ramifications for doing this if the matter goes to court but technically while there are no orders in place then a parent can make arrangements for the children as they deem necessary.

 

Can I refuse to allow the other parent access to the children?

Again, while there are no orders in place you could technically refuse to permit the other parent any access to the children.  In circumstances where there has been significant violence or drug use, it may be that this is the appropriate course of action, however, if you are refusing access simply because you are upset with the other parent then it is not recommended as the court will look adversely upon you for not allowing access.  More importantly then how you are viewed in court is the damage that is caused to children who do not have regular access with both parents.  Remember that while a separation is hard on you, it is far harder on your children.

 

Can I just simply take the children?

This is a question I get asked a lot when one parent withholds children from the other parent.  The answer is yes, no, maybe.  You technically can take children, if for example they are at school, or in a park, or the children voluntarily come up to you for a cuddle etc.  What you cannot do is put yourself in a position when you break the law in order to get the child.  For example, you cannot enter into the other parent’s house to get the child, you cannot try and forcibly remove the child from the other parent’s arms.

If the child is left at daycare, then technically you could collect the children from daycare or even a third party’s care.  Basically, only the other biological parent can refuse to hand over children to you.

 

Can I simply take my step-children as well?

Unlike your own biological children, the rules surrounding your step-children are very different.  Even if you have raise your step-child from birth, you have no automatic rights to that child until and unless you obtain a Court Order that gives them to you. You cannot simply just take the child, if you do you could be charged with kidnapping, deprivation of liberty or similar offences.

If you believe that the child is at risk of harm in the other parent’s care then for the immediate purpose you should contact Department of Communities, Child Safety (DCFS).  DCFS can remove the children from the other parent’s care very quickly if the children at at risk of being physically harmed (either through violence or drugs etc).  While there is no guarantee that the child would be placed in your care, you can liaise with DCFS and ask for the care of the child or regular access to the child.

In saying all of this it is important to know that you would be considered ‘a significant other person’ in the stepchild’s life and as such you can apply to the Family Court for Orders for access or even custody of the child.  In this situation, you would need to prove that the stepchild’s best interests are served by being cared for or maintaining a relationship with you.

 

Can I get a recovery order?

If the other parent takes the child from you can you get an Order from the court to have the children returned?  Well, it depends on how long the children were in your care and the reasons for that arrangement.  If you have just separated in the last few months and the other parent takes the child then in these circumstances you would not likely be successful if you were to seek for a return of the child.  This is not to say that you could not apply to the court for custody of the child which the court would assess and then possibly have the children returned to your care but it would be treated like any other custody application and you would not be given priority over the other parent for the children to live with you.

If however you have been separated for a long period of time, say, 12 or more months, have no custody Orders in place and the other parent has voluntarily left the children in your care and then decides to unilaterally take the children then you may be successful in getting an Order for the children to be immediately returned to your care because the children have been in your care by agreement for a long period of time.  The Court may also at this stage make Orders for the children to live with you.  By going through this process however, you need to be aware that the other parent could take the opportunity of being before the court in order to seek Orders concerning the children themselves.

 

Can I call the police to help me?

If a parent refuses to return the children then it comes as quite a shock to people that, for the most part, the police will not get involved in parental disputes over children.  In fact, the police do not have any jurisdiction in relation to Family Court matters.  The police will normally advise you that you need to go the Family Court and obtain Orders.  Even if you do have Child Custody Orders in place, the police will still not get involved in your dispute unless they are ordered by the Court (usually by a Recovery Order).

The police can, however, assist you by completing a safety check on the child (ie. they go to the house and assess the conditions, speak to the child if appropriate and ascertain if the child is in imminent danger).  The police can also assist by attending with you to your previous residence in order to ‘keep the peace’.  This would normally be utilised when you need to collect your belongings or furniture.

 

Can I force the other parent out of the house?

If the house that you live in is owned by both parents (or rented by both parents) then you cannot force the other parent to leave the house without either a Family Court Order for sole occupancy of the house or an Ouster Order being attached to a Domestic Violence Order (an Ouster Order is an Order for the other person to vacate the property within a certain timeframe).

If you rent the property and the rental agreement is in your sole name or the property is in your sole name then you can refuse the other parent entry to the property.  The only way they could then be technically permitted access to the property would be if they obtained either an Ouster Order or Sole Occupancy Order from the Court.

 

Can I change the child’s school?

Technically you could change the children’s school without the other parent’s consent or knowledge, however we would always recommend that you at least try to come to an agreement with the other parent first before making a decision concerning the children’s education as the Court does not approve of parents who unilaterally make decisions concerning the significant issues concerning the child such as schooling.

Remember, while there are no Custody Orders in place you could change a child’s school, so too could the other parent.  What you don’t want to happen is a tit for tat situation occur where the children are constantly being removed from a different school every other day.

 

Can I move with the children?

The answer to this question is that yes you can move with the children without the other parent’s permission as long as it is not a significant distance away.  By significant we mean something like 50km or more away.  If you were planning on moving far away (say interstate) then you would need to obtain the other parent’s permission (preferably in writing).  If you move without having obtained permission to relocate with the children then you run the risk that the Court will make an Order for the children to be returned to near the area where you were previously living.

The rule of thumb is this: ‘Can you maintain your current custody and access arrangements from where you are planning to move without unreasonably burdening the children or other parent?’  If you can then it is likely to be a reasonable move.

 

Do I have to give the other parent my phone and address details?

Again, while there are no Orders in place there is no obligation for a parent to provide the other parent with either an address or contact details.  If the relationship is one fraught with Domestic violence and a risk to safety exists, or the other parent has threatened to take the children, then it could be more than reasonable to not provide your address details.

If you do not provide your phone number to the other parent, then we do suggest (unless to do so would be harmful to you or the children) you at least have an ability for the other parent to contact the children such as Skype, email, or children’s own mobile phone.

 

If my children have a medical issue do I have to tell the other parent?

Again, while no Orders exist, if the child has a minor medical ailment (such as flu) then you do not have to advise the other parent.  However, if there is a medical emergency that requires hospitalisation (such as a broken arm) then it would be wise to let the other parent know as soon as practicable.  While you technically do not have to advise them, any Court would look upon this behaviour as being extremely poor and it could backfire on you in the long term.

 

Can I take the children overseas?

Obviously you need to have passports for the children in order to take them overseas but if you do have the passports then it is important to understand the law.

While there are no Orders in place you can take the children out of the country BUT if the other party has commenced proceedings in Court and let’s say either no Orders have yet been made (you haven’t had your first court date yet) or the Orders are silent about going overseas then YOU CANNOT TAKE THE CHILDREN OUT OF THE COUNTRY.  If you do remove the children from Australia after becoming aware that proceedings have been commenced in Family Court then you will be in Contempt of Court on which the punishment can range anywhere from a fine to imprisonment.

You also need to be aware that if you are contemplating trying to remove the children from Australia permanently then you risk a Hague Application being brought against you over in the country that you are relocating to (if the country is part of the Hague Convention).  If you wish to relocate permanently with the children overseas then the appropriate course of action is to obtain written consent from the other parent or apply to the Court for an Order permitting you to relocate.

 

Is it important to commence court proceedings first?

There appears to be a belief in the community that it is important for you to commence proceedings first for custody of the children.  Generally speaking it makes no difference whether you file an Application first in Court or whether you are the Respondent in the proceedings.  The Response documents give you the opportunity to say which Orders you agree with and alternatively what further Orders you are seeking that were not in the Application.

In saying this though, if you are about to do something that you think a court may frown upon, eg. breach a Court Order by withholding the children or removing the children from their school etc then it is important to demonstrate to the Court that you have filed in the Court before you take unilateral action if possible.  If the other parent files first then it may look like you were not attempting to obtain permission of the court before simply doing what you want.

 

Do I have to have Custody Orders?

No-one has to have Custody Orders if they don’t want them.  There are many separated parents out there who simply have an understanding between them and they are capable of working out the arrangements for the children between themselves.  There are also those parents who simply write something down between themselves so they can organise themselves but otherwise are happy to follow the agreement.  But then you have those parents who cannot come to agreement or are unable to communicate, or possibly one parent keeps changing the arrangements without agreement from the other parent.  It is these types of arrangements where we recommend that Custody Orders should be implemented.

There are 2 types of written documents for child custody:

  1. Parenting Plans; and
  2. Court Orders

 

Parenting Plans are a written documented and signed agreement between both parents which outlines who has custody of the children and who has access.  It can be as wide or specific as necessary.  This type of document is not binding on either parent but can be used as evidence in Court to reflect what the arrangements concerning the children have been in the past.

Court Orders are written Orders which are sealed by the Court (red round stamp placed on the document).  Court Orders can be obtained by Consent between both parents without commencing Court proceeding but is approved by the Court or by commencing proceedings where a Judge determines who should have custody of the children.

 

What do I have to do to get Orders?

Court Order by Consent
If you wish to obtain an Order by Consent then you will need to draft up the Orders that you wish the court to make.  In addition to those drafted Orders (which we call ‘Minutes of Consent’), you will also need to complete the following documents:

  1. Application for Consent Orders
  2. Annexure to Consent Orders (one needs to be completed by both parents)

 

All documents will need to be signed by both parents.  You will have to pay the filing fee and then you file the documents in the Family Court.  Once the court receives the documents a registrar or Judge will look at the documents and if they are satisfied they will put a seal on the Orders and return them to you by post.

Application to Court for an Order

If you are not able to agree on custody Orders and wish to commence proceedings you will need to attend Family Dispute Resolution (mediation) first.  After the mediation, a certificate will be sent to you called ‘a section 60I Certificate’.  The section 60I certificate is required before any Application can be filed in court (unless it is an urgent matter, or there is an imminent risk of harm to a child).  If the other parent refuses to attend mediation, the section 60I certificate will still be issued to you but not to the other parent.

You will then need to complete, execute and file 3 copies of the following documents:

  1. Initiating Application;
  2. Notice of Risk of Abuse;
  3. Affidavit of you and any other relevant person;
  4. Section 60I Certificate.

 

You will need to pay a filing fee to the court.  Once filed in the Court, the Court will return 2 copies of all the above documents to you.  You will then need someone other than you and over 18 years old to serve (give) to the other parent 1 copy of all your documents.

In the top right hand corner of your documents is your first court date.  You will be required to attend court on that date to obtain temporary Orders.  The Court will then direct you as to how they wish to proceed with your matter and what Orders they wish to issue.

Remember, these are some technical basics concerning child custody and legally what you can and cannot do. However, caution needs to be taken as your actions outside a courtroom can result in bad outcomes inside the courtroom if your behaviour is considered reckless or belligerent.  There is more to Custody matters then simply what the law requires.  Before you ever decide to take any course of action always ask yourself, ‘Is what I am about to do really in the best interests of the children?’ If you are unsure or the answer is no then don’t do it.  Finally if you are not sure about whether you can or cannot do something then seek advice from a Family Lawyer.

Top 10 Things People Do Wrong In Child Custody Matters

Children
Child custody can be one of the emotionally hardest things that a person can go through.  Fighting over child custody or access to a child sometimes has the ability to change what would normally be genuinely caring parents into to strangers who will do anything to win the battle.  In essence, I like to call it ‘seeing good people at their worst’.  The problem is that children are not pieces of furniture to be won.  Moreover approaching a child custody matter without your focus being solely on the best interests of the child can have disastrous consequences for the outcome of your matter.

Below is a list of the things that people do wrong in child custody matters.

 

1. Bad Mouthing the Other Parent to the Child

This is one trait that I see regularly, especially when people are deeply entrenched in legal custody proceedings for a long period of time.  It can be as simple as a slip of the tongue to a friend in the presence of the child about how the other parent is a bad parent right through to comments made directly to the children telling how the other parent doesn’t love the child and ‘abandoned’ the child or similar statements.

The problem with bad mouthing is that the only positive it brings, is to at best help you to let off some steam.  But the negatives associated with bad mouthing or denigrating the other parent it has many negative consequences.

The first consequence and what should be the most serious consequences of bad mouthing a parent is the impact it has on the child.  Your child does not want to hear bad things about the other parent.  Children like to have the parents resolve their issues peacefully (or at least without the child knowing of the dispute).  Insulting the other parent to the child can dramatically undermine the child’s relationship with the other parent….however what many people tend to not realise is that, as children get older, they tend to look at your behaviour growing up and they may well judge you for undermining their relationship with the other parent.

I tend to inform parents who want the children to know that the other parent abandoned them for another family etc that children are smart and perceptive.  In time the children will judge the behaviour of the parents for themselves, and it is this assessment will determine the relationship that the child has with both parents on a long term basis into adulthood.

The second consequence is the court will look poorly at any person who bad mouths the child to the other parent (because Judges are aware of the damage it does to children).  I guarantee that even the slightest slip up to a child will end up getting back to the other parent, even if you tell them not to say anything.  Children will inevitably tell the other parent, a sibling, family member or even a teacher.  Once the other parent is aware of the behaviour they will be more likely to include it in an Affidavit in support of their argument as to why they should have the custody of the children.  Therefore before the Court has even laid eyes on you, they will have in the back of their mind that you are fixated on hating the other person more than you care for the well-being of your child.  This can be a difficult opinion to change and given that it already puts you in a bad light with the Judge then you have to seriously question how bad mouthing the other parent to a child will in any way benefit you.

 

2. Doing or Saying things to make the Child feel sorry for you

This issue has similar consequences to those discussed in number 1 above.  This issue is referred to by the family court as attempting to align a child’s views to those of a parent or parental alienation.  When I have seen this behaviour arise it comes about for one of 2 reasons: 1. A parent doesn’t even realise that they are doing it or the consequences for the child, or 2. The parent wants the child to specifically know how bad the other parent as a justification for the parent’s behaviour.

The first of these instances can arise in many circumstances.  Some examples are: letting a child see you crying excessively after an interaction with the other parent, telling the child that the other parent ‘abandoned’ you, telling the child that the other parent is taking you to court, telling the child you have no money because the other parent won’t give you any.  The list is endless and I have seen it occur by even the most well-meaning of people.

The second instance is far more malicious and is designed to deliberately hurt the other parent.  The problem with this type of behaviour is that it will damage the child far more than any hurt that it will inflict upon the other party.  Examples of this behaviour is telling the child things like "Your father pays me barely anything in child support so go ask him for money", or "I may as well kill myself because your daddy doesn’t love me", or "Your mummy doesn’t want you to love me".

The damage this does to the child is great and in a lot of case cannot be undone.  As outlined in number 1 above the same results occur and again the court will consider that you are trying to alienate the child from the other parent.

While going through separation is painful for both parents and co-parenting can be awkward, unfortunately parents don’t have the luxury of climbing into bed and not getting out.  Children still require you to be there for them and to retain a sense of normality no matter how small that is.  While it is easy to consider leaning on your teenage child’s shoulder for emotional comfort, this should never occur.  Remember your children are looking to you for guidance, not the other way around.

 

Children
3. Not trying to speak to the other parent

So you have separated from the other parent, and frankly he or she is the last person you ever want to speak to again.  Maybe they cheated on you, maybe they spent the last of your life savings without your knowledge, maybe they work too much.  The reasons people separate are as wide and varied as the stars in universe.  Any it is possible that you have a million reasons to justify why you won’t talk to him or her.  Fair enough.  But you chose to have children together and that means that regardless of the million reasons to not speak, you have but one reason that means you have to speak to the other parent: Your children.  This reason trumps all other reasons to not speak and so it should.

A. Your children need you to communicate

 

When separated parents are able to communicate freely and easily, what you see is children who thrive, with both parents participate in the child’s daily life.  The children still remain children with the parents remaining empowered to discipline and raise the children. The fact is that stuff comes up with children on a daily basis, for example the child is sick, parent-teacher meetings occur, the child wants to go to a friends place on the weekend, the child has been disciplined etc.  The list is endless.

When parents are not able to communicate, the first thing that happens is that the 2 separated households (mum’s v dad’s) function separately and very differently from each other.  When children move into their rebellious stage the children learn very quickly to play one parent off against the other.  The child then becomes in control and starts to emotionally blackmail each parent. For example ‘If you don’t get me an iPad I am going to live with dad’ .  While it may sound odd, children want to be disciplined, because it means that they know you care.

 

B. The Court will react negatively if you don’t speak

So if your children are not motive enough to learn to speak to the other parent, then how about this… When the Court determines whether joint custody should be ordered and if not then who should have custody of the child, one of the most raised factors is whether the parents are able to communicate and speak to each other and if they are not then who is the parent who is not communicating.

Now I’m not saying you need to be best friends.  The courts are realistic and appreciate that separation can impact on the ability of 2 people to have a general conversation about the daily news events, but what is required is that 2 parents are able to relay important information about the children in a civil and non-abusive manner.  And before you say…’but I just can’t talk to them’…well the good news is that you don’t have to if you really don’t wish to.  Given today’s technology, you have at your disposal email, Skype, SnapChat, Instagram, Twitter and text messages.  (I am sure my children will inform me of many more I have missed but you get the point).  Many people use emails as a source of communication so that it can be drafted and put aside and sent at a later date (to make sure nothing abusive is said in anger).  In emergencies people use text messages.  I am not referring to abusive messages but genuine communications about the child.

If you still Refuse to speak even after the above then the Court will consider that you are not willing to promote the relationship between the child and other parent.  What could result from this is simply….you could lose custody of your child, especially if the other parent can demonstrate that they have made genuine efforts to speak with you but you have refused.

In summary, the risk to a parent by not speaking to the other parent will far outweigh the discomfort experienced by having to communicate with the other parent.

 

4. Prevent the Other Parent from having Access to the Child

To not allow the other parent access to a child (whether Court Orders exist or not) is one of the most common and yet worst things any person could do in a Custody dispute.  Now in saying this, there will be times when Preventing access to a child is not only in the child’s best interest but is in fact essential to protect children from being physically or emotionally harmed.

But if there is no risk of harm to the child then the Family Court will expect to see a parent who can demonstrate that they are willing to co-parent.  If you bring an Application for full custody of your children and cannot demonstrate either a willingness to co-parent or alternatively a very very very good reason for not allowing the other parent access to the children then you may find yourself losing custody of the children.  I do not say this flippantly.  This is one area that I have seen Judges hand children over to the other parent solely because one parent will not allow the other access to the children, and this is becoming an ever increasing ruling.

So when Should a Parent Withhold the Children from Access?

Only in the most serious of circumstances should a parent prevent another parent from having access to a child.  Some examples of situations when the denial of access should be considered are:

  • The other parent is violent towards the child (and by this I do not mean smacking)
  • The other parent is taking drugs in the presence of the child
  • The other parent is the victim of domestic violence and the child may be exposed to this behaviour
  • There is a risk of the child being exposed or subjected to sexual abuse
  • The other parent may potentially expose the child to harm
  • The other parent has done or said something to make you believe that they will not return the child at the end of their access visit.

 

The basic position that needs to maintained is that unless there is a reasonable chance that a child is at risk of harm or may not be returned then access needs to continue.  Remember the concerns must be reasonable and not overly sceptical or cautious parenting.
So you have concerns for your child but want to maintain access?

If you have concerns regarding the other parent having access to the children but still wish to allow access to continue, you may wish to consider the following options:

  • You could be present during the access visit
  • Someone you trust could be present for the duration of the access visit to ensure the safety of the children
  • You could limit the access visit to shorter periods of time or remove overnight visits (if the issues arise due to overnight times)
  • Propose contact to occur through a contact centre which is limited to 2 hours and is supervised by staff (and terminated if need be) with notes taken for each contact visit.
  • Require an undertaking to be signed by the other parent to either return the child, or not undertake those activities that raise concerns with you (eg. Physical discipline, not to verbally abuse the children Etc)
  • Enter into Consent Orders to ensure you have the ability to enforce the orders.

 

If the issue of concern is so serious for you to prevent access then you need to strongly consider whether the other parent and children should have at the very least some form of telephone contact.  By allowing telephone contact you will be attempting to maintain the relationship between the child and other parent.

Again remember that preventing all access without serious justification will only backfire on you and as such all possible alternate measures should be considered before denying access.

 

5. Lying to the Court about Drug Use or Alcohol consumption

Drugs are prevalent in society and seems to be increasing daily, as such it should be no surprise that drug use or alcoholism by a parent is usually one of the first allegations made against a parent in custody disputes.

Obviously as a Family lawyer my advice would first and foremost be….."Don’t do drugs" and "Don’t drink to excess".  However I am a realist so if abstinence from drugs or alcohol is not a likely option then don’t lie about it.  Most people who take drugs take on a "deny deny deny" mentality.  It is this constant denial that will ruin your custody or access case.

Remember the Family Court is not concerned about your drug use so much as how your drug use affects the children or your ability to parent.

If you have taken drugs in the past, own up to it at your first opportunity which ideally should be in your very first Affidavit.  It is important to explain when you last took drugs, what type of drugs you took, quantities, and most importantly why and how you stopped taking drugs.  It is also prudent to provide a drug test showing that no drugs are in your system.  By doing this you can pre-emptively defeat any allegation thrown at you from the other parent.

If the last time you took drugs was fairly recently, then advise the court of this but don’t just stop there.  If you take drugs on a social basis then you will need to explain to the court of when, where, how much, you also need to explain who is caring for the children while you are under the influence of drugs (eg. They were in the other parents care).   In saying this, there are some drugs that will be considered to alter a person’s personality to such a degree that any prolonged use of the drug will affect a person’s ability to parent.

If you are taking drugs regularly (if not daily) then you need to seriously consider whether you have an issue with drugs and deal with it accordingly.  You may need to book yourself into drug and alcohol counselling or even rehabilitation.  The fear of the Family Court finding out that you take drugs should not prevent you from going into rehabilitation.  More than likely the finalisation of your custody matter will be adjourned or delayed until after you have completed rehabilitation as the court wants to see that you are in a position to have custody or access to your children.

The Family Court is not interested in your past, they are interested in your present and future ability to parent your children effectively.  So if you had or have a drug issue then deal with it upfront.  Show the court that your drugs do not impact on your ability to parent and if you can cease the habit if for nothing other than for your children.

 

Child Protection
6. Splitting up the children

Blended families is increasingly becoming the norm in today’s world.  With blended families comes half-siblings and more complicated arrangements. When people separate they have a tendency to divide children up into different categories.  For example you have the direct biological children of both parents, then the half-biological children (children of only 1 parent) and then there is the step-children (who are the new partner’s children).

People tend to focus on arrangements that concern only the direct biological children and fail to ignore the other children.  The problem with this is that the Courts take into account the relationship between siblings, and not just direct biological children.  The court’s will consider all relationships between all types of siblings (a biological connect will be considered more important than a step-sibling relationship).   Moreover the Family Court do not like to separate children unless it is the last option available.

Any proposal to the court to separate children may suggest to the court that you are not child focussed and your proposed arrangements are not in the best interests of the children.

Given the above it is never wise for any proposal to include a suggestion that children should be split up, especially twins.  This is not to suggest that children are never separated because it does happen on occasion however alternative measures need to be suggested before separation.

 

7. Not preparing properly for Court Specialists or Experts/ Coaching Children

One of the worst and most fatal mistakes that I see regularly in child custody matters is people not mentally preparing themselves for Family Report interviews.  People underestimate the importance of family reports in the Courtroom.  For some Judges Family Reports will be stringently followed, for other judges Family Reports will be seriously considered but decisions can still depart from the report.  If I was a betting person I would place my money on the fact that the judge you may appear before will hold significant weight on the family report.  As such the family report could make or break your claim for sole custody so it pays to make sure you are prepared.

When I say be "prepared" I do not mean tell your children what to say to the psychologist/Social worker.  I have seen many people do this over the years, and the reason I know they have done this is because the children tell the psychologist things like "daddy told me to say…" or it will be the very first thing they say when speaking to the psychologist alone and will repeat it in parrot fashion.

Parents in custody disputes tend to forget 2 basic traits of children:

  1. Children can be honest to a fault (or at least very bad liars); and
  2. Children do not like to be made to choose one parent over the other.

 

So how do you prepare for a Family Report Interview?

In order to prepare for a Family Report, you will need to give yourself a minimum of 1 week to do the following.

  1. For the week leading up to the Family Report refrain from saying anything negative to anyone about the other parent.  Alternatively, make a clear effort to say and think of 3 positive things about the other parent each day. This will teach you to respond in a more balanced way to questions asked during the interview.  Remember you cannot just shut off your imminent hatred and disdain for the other parent in a matter of minutes, it takes practice.
  2. If you don’t do it already, (for younger children) get down on the floor and interact with your children.  Play the children’s games with the children.  Teach yourself to actively engage with your children.
  3. Try being as civil and respectful as possible in communication with the other parent (whether by phone, in person or by email).
  4. Explain to your children that everyone will be speaking to a special person and it is ok for the children to be honest and tell them how they feel regardless of what mum and dad want.
  5. Get the anger out of your system now.  The family report is not the time to air your dirty laundry and bad mouth the other parent.

 

At the Family Report you need to know and do the following things:

A. From the moment you speak to the Family Reporter on the phone to arrange times for interviews you are being evaluated right up until the moment you get back in your car to leave the interviews.

This means that everything you say in the elevator and waiting room is being watched.  The secretary will report everything you say and do.  This includes whether you are interacting with your children, how you speak to the other party when handing over the children to the other party, any discipline, any spontaneous affection from the children, how you respond to           directions given by the family reporter.

B. Do not engage in an argument with the Other Parent

Please expect to come face to face with the other parent, their new partners and possibly their parents.  When the children first see the other parent at the interviews, please do not prevent them from going to say hello.  In fact it is important that you are seen to encourage the children to go back and forth between parents.  As does happen, the new partners will        be in attendance and this tends to send blood boiling.  Remember, the Family Report is NOT THE PLACE to discuss your grievances.  If the other parent becomes aggressive towards you, it is important for you to try and defuse the situation (remember everything rides on your ability to show your best self).

C. Do not Rubbish the Other Parent when Questioned

People tend to forget who they are talking to when having a 1 on 1 with the Family Reporter.  Remember, they are not your friends.  They are judging you, assessing you and determining who should have custody!  Now is not the time to outline all your issues with his nose picking, or loud music, or the horrible TV shows he watches constantly.  Now is the time to be selective and balanced in your concerns.

The family reporter will ask you to outline your concerns regarding the other party.  Now here is where your week of training will assist.  The key is to give a compliment sandwich…that means tell the family reporter something good about the other parent, but then paraphrase with something or things that the other parent needs to do to improve his/  her parenting skills, followed with a comment to the effect that "For the sake of our children I want to believe that with guidance he/she can find their way".

 Eg.  Bob really loves his children, however he takes drugs and has an anger issue which for the sake of the children I want to believe that eventually he may find his way…at least I      hope so".

Finally remember you want to demonstrate to the Family Reporter that you are the best parent to have custody of the children and that you will put the children’s interests first.

 

8. Allowing the Children to play one parent off against the other

This issue tends to arise when the parents don’t communicate with each other or are competing for the affection of their children.  As a result of parents constantly fighting for their children’s favour is that the children end up playing one parent off against the other and the parents then lose their ability to parent the children.

What parents don’t realise is that children thrive on rules and structure.  While they may test boundaries from time to time (most) children when asked, want mum and dad to make the decisions for them.  The children don’t want to grow up fast and make adult decisions but like all children if they can sense that they could gain something (usually money, iPads or clothes) by making one parent feel guilty or frightened then children will exploit the obvious weakness.

The problem with caving into your children’s whims is that it leads parents to make decisions based on fear which inevitably leads to very bad parenting decisions which are not in the children’s best interests.

The Courts pick up on family dynamics and in my experience it is the parent who refuses to cave in to the whims of the children who may not win the matter at a interim basis but will ultimately win custody on a final basis.  More important than your court proceedings is the long-term emotional health of your children, and by not giving in to your children out of fear in the short term will hopefully result in a more level-headed person in the long term.  After all why fight so hard for your children in court if you are not going to be the best parent you can be And create the most stable people you possibly can.

 

9. Involving the children in the parental dispute/ Legal Proceedings

If you want to upset a judge quickly, just involve your children in the court proceedings. The involvement of children in the family law court proceedings is so despised by judges that I have eve seen a person be held in contempt of court and jailed for attempted to bring children into the courtroom to listen to the proceedings.

For those of you who don’t know, any person under the age of 18 years of age is not permitted in any Family Law Court without the permission of the judge.  As far as judges are concerned this forum is for the ears of parents only.  It is inappropriate for any child to know what goes on in a court and why decisions are made.  If a child’s wishes are to be taken into account, the court’s consider that the Family Report process is the appropriate way to bring those wishes to the attention of the court.

Further showing a child the court documents is considered extremely inappropriate and here is why…

  • Your child may not know one parent takes drugs
  • Your child may not know one parent has had an affair
  • Your child may not believe the other parent is a bad parent even if you do
  • Your child may worship the ground on which both parents walk and some information is frankly not relevant to whether a person is a good parent.
  • The information in the proceedings could undermine the relationship between the child and parent
  • Your child doesn’t want to know!!!!

 

Remember that in custody matters we see good people at their worst.  Custody proceedings can throw a lot of mud at each parent…it is not pleasant for adults to witness let alone children.  Let your children be children.

 

10. Not putting the Best Interests of the Children first in their decision making

It is not uncommon for parents to get caught up in the separation and in doing so start to focus on only the bad things that the other parent does and their own self interests. For example "I want to live here because it is closer to my work", "I want the children to live with me so I don’t have to pay as much child support", "The other parent can’t dictate to me when I will and won’t see my children".  The list goes on and on….and I am sure I have seen most of it over the years.

What is not done often enough and yet is without a doubt the most important thing ever considered in Family Court custody matters is parents making decisions which are in the best interests of the children.

People tend to interweave their own agendas and fashion them in a way to try and justify how their decision is in fact in the best interests of the children when in fact the decision that is made is solely about "winning" or about "the parent hurting the other" or "not letting the other parent get what they want"…this list is endless but the main theme is selfishness.

Now before I get lashing of hate mail, I am not suggesting all decisions made are done so out of selfish means but I will say it is not an uncommon trait that I have seen over my many years in Family Law.

So how do you make sure that you are putting your children first?

This Is simple to determine.  Whenever you are about to make a decision regarding your child ask yourself this question "Is what I am about to do truly in the best interests of my child or am I getting something out of it?"  If the answer is yes, then your decision is putting the children first.  If the answer is no or maybe, then your decision is not for the benefit of your children and as such is not the correct course of action.

Remember ultimately the Family Court MUST make a decision which is in the best interests of the children.  While the judges look at many factors to assist in determining what is in the best interests of the child, they are still just humans who are making decisions having regard to their own experiences of what they consider is good parenting or not.  As such make sure you don’t shoot yourself in the foot prematurely by doing something foolish in your custody matter and of course, as always, if you aren’t sure if you are doing the right thing….Then Get legal advice.

This is Why Your Friends are NOT Your Lawyers

Today I sat down with a lady (Let’s call her ‘Jessie’ for this article) and I proceeded to advise her in relation to her child custody, asset division and divorce issues.  By the end of my assessment I had determined she would likely receive approximately 45% of the pool.  When I told Jessie this, I received a stare of disbelief (and possibly shock-they look quite similar).  After a 10 second period of silence (literally) Jessie then told me the same thing I have heard for many years in child custody and divorce matters. Jessie said "But I spoke to my girlfriend and she got 75% of the assets in her divorce".  This comment was said in a manner as if to infer that I was wrong and should now reconsider my assessment in light of this new and life changing information.

Now Jessie may as well have told me that she had pancakes for breakfast for all of its relevance.  But it occurred to me that people look to their friends for guidance and reassurance through a divorce and sometimes, somehow, the role of the friend gets a promotion into that of legal advisor (because obviously they know best because they have been through it first hand).  Now, I will be the first person to tell someone that friends and family are extremely important to a person’s mental health when going through a marital separation, but as a support only, and not as a lawyer, and here is why….

Your Friend is NOT a lawyer!

I know that this may seem like I am stating the obvious but it is really important to remember your lawyers have spent many years studying to be a lawyer, and then many more years again actually working in the area. Your friend (I am assuming your friend is not a lawyer by the way) does not have legal training.

Your Friend could be……(dare I say it)…..WRONG!

Yes I know….you say….’not my friend, they are never wrong’….most of the time.  But what if, for just this once, they actually are incorrect.  Do you really want to put the fate of your divorce or custody matter in the hands of someone who has not worked in the area?

Your Friend could be…..Exaggerating their Divorce Outcome

Sometimes people overstate an issue in order to demonstrate how well or bad an outcome was.  For example, a husband says ‘she got everything’ when the reality of the situation was that the Wife received the matrimonial property and the money in the savings account but the husband received  all his Superannuation, cars, jet skis, and family business.  The fact is that unless you were personally involved in your friend’s separation then the truth is that you are receiving only one person’s view of what occurred which may not be accurate.

Every Matter is DIFFERENT.

In the many years that I have worked in family law I have never seen 2 matters that are identical.  Yes, I have seen similarities between matters but they have never been identical.  The division of assets will change based upon any one issue which could give a dramatically different outcome.  Some basic issues that change a divorce outcome can be:

  1. – Length of the relationship
  2. – The value of the assets each person brought into the relationship
  3. – The number of children of the relationship
  4. – The earnings of each of the parties during and after separation
  5. – What each party did around the house (mowing lawns, renovations Etc)
  6. – The health of the parties
  7. – Any gifts or inheritances received during the relationship
  8. – Any funds or assets that exist overseas
  9. – The value of the property pool

 

The list is endless but the above are just a few basic ones.  As you can see if even one of these factors is different to that of your friend’s divorce then the outcome may be very different.  Given the possible differences, it does not assist you in any way to compare your divorce with that of your friends.  After all it is not a competition between you and your friend to see who can get the most from their divorce.

If you have spoken to your friend about their matter then I would recommend making a list of questions to ask your lawyer.  Having a healthy understanding of what and why you may receive a certain % of the assets will assist you in coming to terms with the end result.  If you don’t understand how a lawyer has come to a determination on your matter then ask them to explain it again.   If they cannot justify why they have assessed your matter the way it has then get a lawyer who can, because if they can’t explain it to you, they won’t be able to explain it to a judge.

Finally, if you have the privilege of having friends by your side during your divorce then you are lucky.  Go to your friends to cry on their shoulder and help you to drown in your misery when you need, or to vent and curse your ex when things are not going smoothly, after all that is what friends are for.  Leave the assessment of your divorce in expert hands who know what they are doing, that way you will receive the correct advice right from the start without any false expectations as to what you are entitled.

Men’s Rights In Child Custody – Where do you stand?

From the start, I need to make it clear that under the Family Law Act 1975 in Australia, technically there is no such thing as men’s rights or women’s rights.  In fact, the only rights that the court is legally obliged to consider is the Children’s rights.

The Family Law Act states that “a child has a right to be known and cared for by both parents”. What this means in practical terms is that the court is not with the sex of the parent but rather is concerned with making sure the child spends time with each parent as much as is reasonably possible.

Yeah, you say but in practical terms, this means that the father’s see the children only every second weekend.  While this may have been the case many years ago, the court has come forward in leaps and bounds and now understands the importance of the children having a relationship with dads for more time than just every second weekend.

So does this means that Father’s are now entitled to a shared child custody arrangement?

Well the answer is yes, no and maybe…

Yes- the law states (in summary) that as long as there is no risk of harm to the child then the court MUST consider whether a shared care arrangement would be appropriate in the circumstances. The meaning of harm is extremely broad and can include such things as physical, drugs or sexual assaults, emotional harm (such as abuse, threats, denigration, being exposed indirectly to domestic violence such as seeing bruises on another person, seeing damage to property etc) If none of these issues are present then the court must consider shared custody.

However- the court only has to consider shared custody.  No where does the law stated that the court must make an order for shared custody.  In determining whether a shared child custody arrangement is appropriate, the court will have regard to the best interests of the child, the practicalities of implementing the proposal and the ability of the parties to communicate.  In practical terms this means the following:

1. COMMUNICATION- If the Mother and Father are not able to have effective communication concerning the daily care of the child then the court is more than likely not going to make an order for shared custody. This doesn’t mean that mum and dad have to be best buddies, nor does it mean that they have to be able to speak regularly on the telephone.  But what it does require is for mum and dad to at least be able to email each other to relay (in a civil manner) details concerning the children’ schooling, medical issues or other concerns that may arise from time to time.  Even if the communication is civil from one parent and hostile from the other, the court will have a hesitation in permitted a shared custody arrangement.

2. PRACTICAL ISSUES- There are many practical issues that will prevent a court from making an order for shared Custody.

(A) Distance- If the Mother and Father live far away from each other then the court will question such things as how will the children get to school? How much time will the children be travelling between the parents and how often? The further away the parents live from each other, the less likely the court will make an order for shared time.

(B) Availability- If one parent works a normal 38 hour week, while the other does not work at all then this is a factor that the court will consider. If a child is likely to be placed in day care 5 days a week when another parent is ready willing and available to care for them, then the court is going to err towards placing the child with the other parent for more of that time.  By saying this, the court is not suggesting that a father or mother cannot use daycare but it cannot be excessive.  If however a family support network is available to help care for the children then this will be treated very differently to daycare as the court is encouraging of a child spending time with extended family.   Before a father considers shared time as an option they need to consider how it can practically occur with current work commitments.  If the father flies in and out on a 3 weeks on 1 week off type roster then obviously a shared care arrangement cannot work.  In saying this no 2 situations are the same and the arrangement can be tailored to suit the individual needs of the situation.

3. CHILD’S AGE & NEEDS- A child’s age is extremely important when determining when shared time should occur.  There are varied differences of opinion by different experts and every Judge will have a different opinion as to when a child is capable of handling a shared custody arrangement.  The younger the child the more important it is for them to have a primary carer as separation anxiety is much stronger with younger children.  If a child is a baby being breastfed then no court is ever going to permit the child being in a shared custody arrangement as the child needs to be with the mother for feeding (it is no argument to say she can simply express milk).  Some experts suggest that shared custody should not occur until a child is of school age, other suggest it can be as young as 2 years old.

Regardless of the age for when shared custody should occur, it is important to note that the access parent should have as much time with the child as is reasonably able.  The standard rule of thumb is that where shared custody cannot occur due to the age of the child then the access parent should have shorter periods of time with the child BUT have time more often (eg instead of all weekend the access parent could see a baby for, say, 2 hours every 2-3 days).  The increased access times are to help maintain the bond between child and access parent.

The issues raised above all lead to a really important message for men, and that is Women don’t automatically ‘get’ the children BUT men need to always be civil and continue to try and maintain open lines of communication with the mother and spend as much time with the children from separation as possible.  If the mother is refusing a father access to his children then don’t delay.  Men need to move quickly to court to get access to children and enforce men’s rights to custody of children.