Property Settlement Lawyers Brisbane

Will I have a claim for property settlement following the breakdown of my relationship? | Family Lawyers Brisbane

Q: Will I have a claim for property settlement following the breakdown of my relationship?

This is an important question and particularly where you have not been married to your former partner.

We have seen in last week’s blog that the Court may only make an order dividing property where the persons affected are not married, after the breakdown of a de facto relationship.

In order for a relationship to qualify as a de facto relationship at law, not only must the parties not be married or related by family, they must be a couple living together on a genuine domestic basis, having regard to all the circumstances of their relationship.

The term “genuine domestic basis” is not a term of art but is to be given its ordinary meaning.

We outlined for you in our blog last week some of the factors or circumstances that will be of relevance where a court is determining if a de facto relationship existed.

It is not necessary that any particular circumstance is found in order to determine that a relationship is a de facto relationship.  The Court may have regard to any matters that seem appropriate to the Court in the circumstances of a particular relationship and may attach what weight (or importance) that the Court considers appropriate to any particular circumstance.

The Family Court of Australia in a decision in 2011 has said that for a de facto relationship to be found to have occurred, there must be the manifestation of “coupledom”, which involves the merger of two lives.

The Court found that a continuing cohabitation in a common residence is not necessary to establish the continuation of a “de facto relationship”, at least where the parties have lived together and have not effected a permanent separation. Nevertheless, the definition of “de facto relationship” suggests that, usually, the parties should have, at some stage, been “living together as a couple on a genuine domestic basis”.

The Court took the view that the fact that the parties have never lived together in a common residence was an indication that they have not “lived together as a couple on a genuine domestic basis”. The Court considered that that indication would be “especially significant where parties have not shared the common burden of maintaining a household”.

The fact that one or both of the people involved may have at some stage intended eventually to marry would not in itself lead to a conclusion that they were involved in a de facto relationship.

The Court considered that there must have been a manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”.

In next week’s blog, we will look at some examples of relationships where the Court has found that a de facto relationship did not exist. Remember, it is very important to know whether or not you are or have been in a de facto relationship. Unless you have been, you will not have a claim for property settlement following the breakdown of the relationship.

Family Lawyers Brisbane

Family Lawyers Brisbane

What next?

Contact us for advice whether your relationship is likely to be considered a de facto relationship at law and what is your likely entitlement for the division of the net assets that you and your former partner hold, whether together or in your separate names.

Our experienced team of Family Lawyers Brisbane, can offer you tailored legal advice, to help you move forward in life. Give us a call today to receive a FREE 15-minute consultation.

 

Brisbane Property Settlement Lawyers

Are you really in a de facto relationship? | Brisbane Property Settlement Lawyers

Are you really in a de facto relationship? If you are not truly de facto, you have no claim for family law property settlement.

In Australia today, de facto relationships are on the rise. It can become especially important for you to know whether or not your relationship is considered a de facto relationship at law if you wish to  make a claim for property settlement following the breakdown of that relationship.

The Court may only make an order dividing property after the breakdown of a de facto relationship  where the Court is satisfied that:

  • the period or the total of the periods of that relationship is 2 years; or
  • there is a child of the de facto relationship; or
  • the party seeking property orders made substantial contributions to the property of either or both of the parties to the relationship or to the welfare of the family and the failure to make an order would result in serious injustice to that party; or
  • the relationship is or was registered under a prescribed law of a State or Territory.

What is a de facto relationship?

  • Parties must not be married/related by family (although they may be married to other persons)
  • They must be a couple living together on a genuine domestic basis

Where one party disputes that there was a de facto relationship with another person, it is often on the basis of a claim by that party that he or she was not a couple with the other person living together on a genuine domestic basis.

If you were before a court, no particular finding determines whether or not that requirement is met but the following factors will be of relevance where a court is determining if a de facto relationship existed:

  • Duration of the relationship
  • The nature and extent of any common residence
  • The existence or otherwise of a sexual relationship
  • The degree of financial dependence or interdependence and any arrangements for financial support between the parties
  • Ownership, use and acquisition of their property
  • The degree of mutual commitment to a shared life
  • Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship
  • Care and support of children
  • The reputation and public aspects of the relationship
Brisbane Property Settlement Lawyers

Brisbane Property Settlement Lawyers

Is it worth your while to make a claim for property settlement or to seek order for division of property?

Even if at law you can say that you were in a de facto relationship with your former partner, it is very important before you ever embark on negotiations with your former partner or legal action seeking orders for division of property that a careful cost/benefit assessment is made for your circumstances. You will want to be clear that the end result (obtaining court orders) will have been worth not only the financial cost but also the emotional toll it may take on you.

In making that assessment, you will want to take into account:

  • The likely range of your entitlement for the division of property and how that translates in dollar terms., ie., the aggregate amount that you are likely to receive or retain pursuant to court orders for the division of property
  • What amount are you likely to spend in legal fees in pursuing your claim?;
  • how long it can take to resolve the matter, particularly where a court action may be involved. If your former partner disputes that a de facto relationship existed, a discrete court hearing to determine whether there was a de facto relationship at law will add considerably to the cost of obtaining final orders for division of property (assuming the court finds in your favour that a de facto relationship existed) and the time taken to obtain those orders. It is not uncommon for it to take some 12 months or more before a matter reaches a trial and there can then be further delay whilst the Courts are congested before final orders are issued.
  • The risk (where you do not seek final orders now for the division of property) that your former partner may make a claim in the future seeking final orders and at a time when your net asset position has increased. You may not at this time be able to assess the relative merits of such a future claim and whether or not it would be likely to succeed. However, if you obtain final orders, it is less likely that your former partner would be able to later have those orders varied or set aside.

Still not sure or need help?

Know where you stand. Contact our Brisbane Property Settlement Lawyers today and receive tailored legal advice. Our experienced team can help give you the confidence

parenting order

Must I obtain a court order for care arrangements for my children?

The simple answer is “no”. There is no requirement that separated parents obtain a court order addressing care arrangements for your children.  You and your former partner may choose to seek that consent orders be issued by the Family Court. However, if relations with your former partner are amicable, then court orders would not seem necessary.

Court orders provide certainty for parties as to when children are in each of their care. On the downside though, orders are not generally as flexible as a parenting plan which may be more easily varied. After orders are issued, if you wish to vary their terms, you may need to seek that the Court makes further orders varying the terms. That can be a time consuming and costly exercise, often with no certainty as to the variation that the Court may be willing to make.

A Parenting Plan on the other hand has the advantage of flexibility. A Plan is any written, signed and dated agreement made without any threat, duress or coercion between parents of a child. It may deal with various matters including:

  • The person/s (normally a parent) with whom a child is to live;
  • The time that a child will spend with another person/s (normally the other parent);
  • How parental responsibility for a child is to be allocated;
  • The frequency and manner of communication that a child is to have with another person/s (often the parent who does not at the time have care of the child);
  • The manner in which disputes concerning the operation of the plan are to be resolved;
  • Any aspect of the care, welfare or development of the child.

A parenting plan is not enforceable but can assist parties to clarify their intentions for the care arrangements for their children.

A parenting plan may exist alongside a parenting order. The order may address significant issues such as the parent with whom the child lives and the time that the child spends with the other parent. The parenting plan may deal with other issues such as how disputes are to be resolved although that issue may also be addressed in a parenting order.

parenting order

Do you need to get a court parenting order for care arrangements for the children?

You should be aware though that parenting orders will be subject to later parenting plans (unless the plans were made under threat, duress or co-ercion).

Our child custody lawyers at LGM Family Law understand that working out parenting arrangements for your children after a separation is often very stressful for a parent. We are able to assist you in determining whether a parenting order or Court order will be in the best interests of your child and preparing terms that will suit your family’s circumstances.  Contact us today for a free initial telephone consultation and have the peace of mind that you deserve.

 

 

 

 

Divorce Lawyers Brisbane Northside

What is the process for Divorce in Australia? | Divorce Lawyers Brisbane Northside

Wondering what the requirements are for divorce in Australia? Our divorce lawyers Brisbane Northside provide a guide to the process. 

In Australia, we have a “no fault” divorce system. Unlike other countries, you do not have to prove any wrong doing on the part of your husband or wife to be able to file for Divorce.

The main requirement in Australia, is that the marriage has broken down irretrievably, that it is not reasonably likely that the parties will resume cohabitation. To demonstrate that there is no likelihood of reconciling, you must live separately and apart from the other party for a period of at least 12 months.

There are a few different variations of this, such as parties who live separately and apart, but “under the one roof”, and parties who reconcile for a short period before again separating, but who have lived separately and apart for a total period of more than 12 months. It’s important to remember though, that if you get back together for more than 3 months and then separate again, the 12 month separation period will start again.

If you fall under one of these categories and you’re uncertain as to whether you will be eligible to apply for Divorce, why not make use of our free 15-minute telephone conversations to get some clarity.

Divorce Lawyers Brisbane Northside

What’s the process for Divorce in Australia? | Divorce Lawyers Brisbane Northside

Apart from living separately and apart for a period of at least 12 months, in order to apply for a divorce in Australia, at least one of the parties to the marriage must be:-

  1. An Australian citizen; or
  2. Ordinarily resident in Australia, and has been so resident for at least one year prior to filing the Application; or
  3. Domiciled in Australia.

The next question then, is whether you and your ex are going to file the Application together, i.e. a “joint application”, or if just one of you is filing the Application.

If you are filing for divorce, and the application is not a joint application, then you must serve the Application on the other party. The Court website provides some useful tips on serving a Divorce Application here.

Once you have filed the Application, the Court will set down a date.

If the Divorce Application was a joint application, or if you have served the other party with the documents and they have signed the Acknowledgment of Service (Divorce) and this document has been filed, neither of you are required to attend at Court for the divorce hearing.

Once the Registrar makes the Order, your divorce becomes effective 1 month after the Order was made.

If you make an Application for Divorce and things don’t go smoothly or if you would like us to handle the Application for you, give our Divorce Lawyers Brisbane Northside team a call and we will help you what can otherwise be a stressful time.

Contact our Divorce Lawyers Brisbane Northside a call today, to receive a FREE 15-minute phone consultation.

 

North Brisbane Divorce Lawyers

Do I still need a lawyer if I’ve reached an agreement with my former partner? | North Brisbane Divorce Lawyers

We as family lawyers love hearing that a separation was amicable, or that someone is still on good terms with their former spouse or partner. However, agreeing to divide your property without obtaining a legally binding property settlement can leave you exposed in a number of ways.

Limitation periods

If the limitation period has not yet lapsed (see our article on time limitations), your former partner may initiate proceedings in Court seeking a legally binding property settlement, even though you have previously agreed something informal between yourselves.

Even where the limitation period has lapsed, if the Court is satisfied that hardship would be caused to your former partner or a child if leave were not granted to bring the action out of time, leave may be granted for your former partner to bring the matter before the Court outside the limitation period.

Generally, the property pool which is available for division between parties is the property pool as it exists at the time that a final property settlement is made.  Any assets acquired by either party post separation from savings or other assets acquired during the relationship may then be included in the property pool available to be divided between the parties (although adjustments may be made in favour of a party regarding their particular contribution post separation). If then, for example, you had received the family home when you negotiated an informal settlement with your former partner and since sold that property and used the funds from the sale to buy a new house, that new house (including any increase in capital value since its purchase) may form part of the property pool available for division with your former partner.

Legally Binding Agreements

There are a number of ways you can make your agreement for the division of property legally binding.

These include:-

  1. Consent Orders- the terms of the Orders are agreed between the parties and an Application signed by each party is filed in the Registry of the Family Court seeking that the Court issue the orders in the terms as agreed;
  2. Court issued Orders – after the parties have progressed through a trial, the Court determines what is a just and equitable division of property; and
  3. A Binding Financial Agreement made in accordance with the requirements of the Family Law Act 1975 (Cth).

When parties are able to agree as to how to divide their property, whether that’s over a cup of coffee or with the assistance of a lawyer, a lawyer can then assist with drafting the Application for Consent Orders as well as the Orders that you are seeking that the Court issue.

North Brisbane Divorce Lawyers

Why you still need a lawyer | North Brisbane Divorce Lawyers

It will be important to first obtain legal advice where you are seeking Consent orders to ensure that the proposed division of property is within the range of what the law would regard as just and equitable for your particular circumstances.

Contact our team of North Brisbane Divorce Lawyers today for an initial consultation regards how best to finalise your property settlement.

Time arrangements for children with separated parents | Custody of Children

Keeping up with the times and the lingo in relation to “custody of children”

When it comes to referring to who has the care of children in family law proceedings, the reference to who has “custody of children” is considered old fashioned and no longer appropriate.

The underlying premise is the right of the child to have a meaningful relationship with both parents.

The terms “equal time” and “substantial and significant time” are now used when it comes to considering the time that children should spend with each of their parents under Court orders.

But what do these terms mean?  In this article, we explain what the terms “equal time” and “substantial time” means to the Court and for you as a parent.

Custody of Children

Custody of Children

 

Parenting Orders: Parental Responsibility

Before a Court will make an order regarding the time a child spends with each parent, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

Parental responsibility encompasses all duties, powers, responsibilities and authority conferred by law upon parents.  This means responsibility for the day to day issues and for the big issues such as their health, education, religion etc.

If equal shared parental responsibility applies, when making decisions about the big issues, also known as “major long term issues” for the children, parents must:-

  1. Consult each other in relation to a decision being made about that issue; and
  2. Make a genuine effort to come to a joint decision about that issue.

The Court can refuse to apply the presumption in certain circumstances (which is referred to as “rebutting the presumption”) where there is evidence of abuse of a child or of another child who was a member of that parent’s family or of any family violence.

If the presumption of equal shared parental responsibility for the child is not rebutted, then the Court must consider whether “equal time” would be in the best interests of the child, whether it is “reasonably practicable” and if so, consider making an order to provide for the child/ren to spend equal time with each of the parents.

Then, if the Court does not make an order for “equal time” the Court must consider making an Order for “significant and substantial” time.

Reasonably practicable

To determine whether time is reasonably practicable, the Court considers the following factors:-

  • how far apart the parents live from each other; and
  • the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
  • the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
  • the impact that an arrangement of that kind would have on the child; and
  • such other matters as the court considers relevant

Making an Order

The Court will rely upon evidence from each party to the proceedings, whether that be the parents, an independent children’s lawyer, or a third party joint to the proceedings, to:-

  1. determine whether the presumption of equal shared parental responsibility is rebutted in cases where this is raised;
  2. Determine what is in the best interests of the child;
  3. Determine what is reasonably practicable in the circumstances; and
  4. Determine what Order should be made regarding the care of the child or children.

Equal time v Substantial and Significant: What’s the difference?

Equal time is just that, a 50/50 care arrangement. Whether that’s with weekly or fortnightly changeovers, or a varied changeover routine that works best for the child, the child spends equal time with each parent.

Substantial and significant time, on the other hand, is defined in the legislation. The legislation says that time will be considered substantial and significant, if the time the child spends with the other parent includes both:

  1. days that fall on weekends and holidays; and
  2. days that do not fall on weekends or holidays; and
  3. the time the child spends with the other parent allows the parent to be involved in:
    1. the child’s daily routine; and
    2. occasions or events that are of significance to the child; and
  1. the time the child spends with the other parent allows the child to be involved in occasions and events that are of special significance to the parent.

What does “being involved in the daily routine” mean?

There is no definition for “daily routine” that applies for all children and all families.

Being a part of your children’s daily routine does not necessarily mean seeing your children every day.

In a 2016 case, the Full Court held that the children spending time with their Father on alternate weekends, alternate Fridays (from after school to 7 pm), special days and school holidays comprised substantial and significant time.

The Full Court said that this was substantial and significant because the practical effect of the orders was that the children would spend time with the Father during school term every week, for a full weekend every second weekend and at school events that parents normally attend. The children would also have time for telephone and FaceTime contact with the Father and also for block periods in school holidays and on special occasions.

Obviously, each child’s routine and life is different as is each family and the practical effect of arrangements will vary for each case.

What should I do next to ensure appropriate care arrangements for children?

If you are considering separation, or if you have already separated, and you have a child or children with your former partner, call our Family Lawyers  on (07) 3506 3651. Our team of experienced lawyers located at the Grange and Brisbane CBD can assist you in your matter regarding custody of children.

To receive a FREE 15 minute consultation with one of our solicitors, contact us today and take the next steps to ensure the care, welfare, and development of your child is protected.

Brisbane Property Settlement

How long do I have to get the Court’s assistance after I leave my partner? | Brisbane Property Settlement

There aren’t many instances in family law where one law applies for married couples and a different law applies to de facto couples.  However, one instance where this situation occurs, is in the ability to seek property settlement Orders by consent when you’re out of time. Find out the information you need to know about getting a Brisbane property settlement order. 

It is extremely important that parties finalise their financial relationship properly and formalise their settlement either by way of Court Orders or by way of a Binding Financial Agreement.   These forms of agreement are available to both those who were married and those who were in a de facto relationship.

But what if you didn’t do anything about your property settlement at the time and you let it go for a while…is it too late to seek a property settlement now?

In this article, we explain the options available to both married and de facto couples to obtain property settlement Orders, once the relevant time limits expire.

We’ve highlighted where the law differs between married couples and de facto couples to make sure you don’t miss the information crucial to your situation, so keep an eye out for the information that is relevant to you.

First, however, we need to take a step back and address what time limitations apply to seeking the Court’s assistance with your property settlement.

Time limits for applying to the Court for a Brisbane property settlement

You may not have realised that there are time limits in relation to commencing an application for property settlement.

Once these time limits end or lapse, you no longer have the right to apply to the Court for a property settlement with your former partner, unless you can demonstrate to the court why you should be allowed to bring the action out of time.

In family law, the limitation periods that apply to parties wanting to finalise their financial relationship with the Court’s assistance are as follows:-

  1. Marriage: Once your Divorce Order becomes final, you have 12 months to initiate a property settlement in Court; and
  2. De facto: After you end a de facto relationship, you have 2 years to initiate your property settlement in Court.

This means that you can apply to the Court for property Orders at any time after the day that you separate, up to and including the day that your limitation period expires.

It is extremely important that you aren’t even so much as a few minutes late, once midnight strikes on the day that your time limit expires, you don’t want to find yourself looking like Cinderella after the ball.

For those who were married: Although parties who were married only have 12 months to initiate proceedings to finalise their financial relationship with the Court’s assistance, this period takes into account the fact that you must be separated for a minimum period of 12 months before you are able to apply for a divorce.   There is also no maximum period of separation for those who were married.

So that means if neither party applies for a Divorce, the time limit won’t expire.  That clock only starts ticking once the Divorce Order becomes final.

Making an application to the Court out of time

For both married and de facto parties:

The legislation specifically permits parties, whether married or de facto, to seek permission from the Court to commence a Court action even though a limitation period has expired.   This is called “seeking leave” of the Court.

If you are seeking leave from the Court to file property proceedings outside the limitation period, you must demonstrate to the Court that hardship would be caused to a party to the marriage, or a child of the marriage, if leave is not granted.  This can be more complicated than it sounds and you should always seek advice from a solicitor experienced in family law before deciding whether or not to commence a Court action out of time.

Can you and your former partner seek Property Settlement Orders by agreement if you are out of time?

Ideally, property settlement is finalised by consent, or by reaching agreement, with your former partner.  This is usually much quicker and less costly (both emotionally and financially) than filing a Court action for property settlement, where there is no agreement between you.

For those who were married:  If you were married but your former spouse agrees to seek property settlement Orders by consent out of time, you can still apply to the Court jointly using an Application for Consent Orders form.

For de facto relationships:  The big difference

However, if you were in a de facto relationship, even if you and your former partner both want to agree to seek property settlement Orders out of time, you cannot apply to the Court jointly using an Application for Consent Orders.

You must make an Application to the Court seeking special leave to apply for property settlement Orders and have the matter heard by a Judge.

The Court website provides some helpful direction as to how de facto couples should progress in the event that they require the Court’s assistance (out of time) to finalise their property matters:-

“If your de facto relationship broke down more than two years before the date of filing this application, an Application for Consent Orders is not the appropriate form. You should file an Application in a Case + Affidavit seeking the Court’s permission to bring an application for property settlement/maintenance.”

We can also assist you and provide you with advice in relation to making an application for property settlement out of time.

Brisbane Property Settlement

Brisbane Property Settlement

Key points to remember

So far as limitation periods go, the key points to remember are that:-

  1. If you were married, you have 12 months from the date your divorce order is finalised to file an application in the Family Court or Federal Circuit Court; and
  2. If you were in a de facto relationship, you have 2 years from the date of separation to file an application in the Family Court or Federal Circuit Court.
  3. Where the law differs between those who were married and those who were de facto, is if both parties agree to seek property settlement Orders from the Court after their time limitation has expired. Parties to a de facto relationship cannot apply using an Application for Consent Orders once their time limit expires, and must apply for special leave of the leave of the Court to obtain those Orders.

The key is to not wait too long to get advice.

Want to learn more?

It’s never too soon to know where you stand and receive some guidance as to how to legally finalise your relationship with your former partner.

Contact our Brisbane Property Settlement team today to set up an initial consultation for some preliminary advice.

You may also find our “Things to consider on or prior to separation” video useful.

How that new engagement ring might affect your relationship with your former partner | Property Settlement Advice

The family court has said that after separating, “parties are entitled to… properly [get] on with their lives.” So, for those people who have separated, and are ready to take the next step with their new partner – fear not! The law is on your side.

If you’re ready to buy that engagement ring for your new partner, or if you are the new partner, the first thing to ensure is that the ring is not being purchased from funds which existed at or prior to the separation of the partner from his former partner. You should ensure that funds being used to buy the ring were acquired entirely post-separation.

Property Settlement Advice

Property Settlement Advice Brisbane

If, for example, after you have separated from your former partner, you sell the car you acquired while you were with your former partner, and then use that money to buy the engagement ring for your new partner, this would constitute a “premature distribution” of matrimonial assets on your part.

This doesn’t mean that you have to give the ring to your former partner; it just means that the Court will consider that you have therefore had the “benefit” of that matrimonial money and an adjustment may as a consequence possibly be made in favour of your former partner out of the net assets that are available for distribution between you.

That’s not to say that every time you spend money that was acquired during the relationship with your former partner, you have to effectively account for it in your property settlement with your former partner.  Parties are able to use funds acquired during a former relationship for day to day living expenses post-separation where needed. However, the purchasing of an item such as an engagement ring for a new partner, would not be considered such a “day to day expense”.

In family law proceedings, so far as practicable, the Court has a duty to end the financial relationship between the parties to a marriage or a de facto relationship. The court must also ensure that it does not “alter the property rights of the parties, unless justice requires it to do so”.

This means that if you buy an engagement ring on a credit card and pay off that credit card debt from funds that you obtained entirely post separation, be that on your own or with the assistance of your new partner, you can expect that the engagement ring, or its value, would not be treated as part of the property pool available for division between you and your former partner. However, where assets are required by a party from post-separation income, they may be considered in the property settlement with the former partner in so far as those assets are available to the party.

If you have any questions on how to move forward financially with your new partner, when you have not yet finally settled your financial relationship with your former partner, call our family law team on (07) – 3506 3651. We can offer you experienced property settlement advice.

Blended Families and Property Settlements | Property Settlement North Brisbane

If your former partner from your second marriage has contributed to the support of your children from your first marriage, could this affect your property settlement? Find out from our property settlement North Brisbane Lawyers. 

property settlement north brisbane

Property Settlement North Brisbane

If you and your former partner have been a blended family, you may want to know how contributions towards the living costs of a step child may effect your family law property settlement.

You may have children from a previous relationship and been in a subsequent relationship where your new partner had assisted with their living costs.  If you and that partner separate, can your former partner then claim  some benefit in a property settlement for having provided that financial assistance?

At family law, it is the parent of the child who has a legal duty to maintain the child of a former relationship.   That duty has primacy over the duty of any other person, other than the child’s other parent, to maintain the child.

For example, if Mary has two children from a former relationship with Bruce and Mary then marries Jack, Jack has no legal duty to maintain those two children if there is no court order requiring him to do so.

If Jack does contribute towards the support of Mary’s children from her former relationship, his contribution is a factor that can be taken into account in any property settlement should Jack and Mary later separate. Jack’s contribution may in appropriate cases lead to an adjustment being made in his favour out of the property of Jack and Mary that is available for division between them.

However, Mary’s contribution towards supporting those children is not taken into account in her favour in a family law property settlement as she is the parent and is merely honouring her legal obligation to maintain her children.

Want to know more?

If you’re interested in getting a property settlement North Brisbane or anywhere in Australia, contact our team at LGM Family Law. We offer FREE 15-minute phone consultations, to help you get started.

Contact our team for advice on property settlement North Brisbane or anywhere in Australia today.

Child Maintenance for a Step-Parent | North Brisbane Family Lawyers

The modern-day Brady Bunch: how step children are viewed in the family law realm.

Blended families are becoming more and more common these days. If you’re a step-parent, you might be surprised to learn that you could be ordered by the court to pay your step-child’s maintenance. Find out more from our North Brisbane Family Lawyers.

North Brisbane Family Lawyers

North Brisbane Family Lawyers

 

The Brady Bunch – how you compare to a 1970’s American Sitcom Family

In 2015, 15% of people getting married, were getting married for the second time. That’s a lot considering 227,190 people got married that year. It also means that if the Brady bunch were around today, they wouldn’t stand out from the crowd for the reasons they did back then.

Blended families (where one or both partners are bringing children from a previous relationship into their new relationship), are on the rise. It’s important to know how your relationship with your step children may affect your legal rights in a property settlement, should you ever leave your new partner. Read on to find out more from our North Brisbane Family Lawyers.

Am I a step parent?

Let’s take John for example. John married Wendy, who has a son, George, to her ex-husband Bruce. So: John and Wendy are married, Bruce and Wendy are George’s parents, and Bruce and Wendy are divorced.

By marrying Wendy, and welcoming George into his family, John has legally become George’s step father.

So, you are a step parent if:-

  1. You are not the biological or adoptive parent of the child;
  2. You are or have been married to one of the child’s parents, or are or have been in a de facto relationship with one of child’s parents; and
  3. You’ve treated that child as a member of your blended family whilst in a relationship with that child’s parent.

What does that mean to John while he is married to Wendy?

As a step parent, unless there is an appropriate court order in place, John has no legal obligation to maintain George. John may feel a moral obligation to look after George but whether he accepts that obligation is entirely up to him.

George’s biological parents have a primary duty to maintain George. If either parent is not contributing towards payment of George’s living costs, the other parent may apply to the Child Support Agency for a child support assessment against that parent.

In the meantime, if John wishes to assist Wendy with George’s costs, he can do that but he has no financial obligation in relation to George unless a court order requires him to maintain George.

Is there any situation where John is legally obliged to look after George?

John doesn’t become obliged to maintain George by marrying Wendy. However, a person can apply to the Court seeking orders that John, as a step-parent, be legally obligated to look after, or in legal terms “maintain”, George. This is a called a section 66M Order.

However, the Court won’t require John to step in, if Wendy and Bruce have the ability to look after George.

If a Court was considering whether it was proper to make an order for John to “maintain” George, the Court must consider certain matters only, including:-

  1. The length and circumstances of the marriage or relationship between John and Wendy;
  2. The relationship between John and George;
  3. The arrangements for the maintenance of George that had existed;
  4. Any special circumstances which if not taken into account would result in injustice or undue hardship to any person (whether George, John or any other person).

Where to next?

If someone has made an application against you, as a step parent, seeking that you be ordered to maintain a step-child or if you want advice whether you may obtain an order for the step parent to maintain a step-child, contact us today for tailored, personal, independent legal advice. Our North Brisbane Family Lawyers are here to help.

 

The effect of domestic violence on a property settlement | Family Lawyers Brisbane Northside

You may recall seeing some upsetting headlines in the news like:

“Killer husband was free on bail”

“Tara Brown murder could have been prevented”

“Hervey Bay shooting: triple shooting treated as double murder-suicide”

Domestic violence affects all spectrums of society – young, old, pregnant, male, female, short term relationships, long term relationships. There is no exception. However, in recent years, society has become more aware of domestic violence and the importance of changing the mentality surrounding domestic violence with campaigns like “Not Now, Not Ever” in Queensland and “It stops here” in New South Wales.

In 1997, the Court in Kennon v Kennon took the first step in recognising the serious impact of domestic violence on a person. Domestic violence is now considered, in the family law realm, as an issue that can be considered in appropriate cases when determining the respective entitlements of parties for the division of their matrimonial property pool. However, it is necessary that more than the existence of domestic violence in a relationship must be shown before a Court will make any adjustment in favour of a party who has suffered domestic violence and in practice it is likely that this factor will lead to an adjustment for property settlement in favour of a party in only a narrow band of cases.

However, proving this argument is not simple. You must provide evidence to the court, and not in a generalised nature, of specific incidents when you suffered from domestic violence.

Before a court may make an adjustment in favour of a party who has suffered domestic violence from the former partner, the court must be satisfied that:-

  1. There was a violent course of conduct by one party towards the other;
  2. That violent conduct occurred during the relationship;
  3. That that conduct is demonstrated to have had a significant adverse impact upon that party’s contribution to the relationship or to have made those contributions significantly more arduous;
  4. There is a connection between the violence and the contribution.

There must be sufficient evidence to enable a court to quantify the effect of the violence upon the party’s capacity to make contributions in the relationship.

If you would like advice in this area, contact our family lawyers Brisbane or our family lawyers Brisbane Northside who will be happy to assist you.

Can a Child’s view effect who gets custody?

If you’re a parent looking to get partial or full custody of your children, you may be interested to know how your child’s views and preferences are considered by the family courts. Find out from our child custody lawyers northside.

Child Custody Lawyers Northside

Child Custody Lawyers Northside

The situation

A recent High Court decision this year considered parenting arrangements where the children had  expressed that they wanted to live with their father. In that case, the father had initially taken his two sons on a holiday from Australia to New York. A week and a half into the trip, the father decided he wished to stay in the United States with the boys and not return to Australia. The mother filed an application seeking that the children be returned to Australia.

The parents had already made parenting orders a few years earlier which provided both parents with equal shared parental responsibility for the two boys and their daughter. That means that they shared responsibility for long term decisions effecting the children.

As part of those orders, the children would live with the father and the mother as agreed between the parties or at the children’s own election. The orders allowed for the children to travel overseas for a holiday with a parent but did not permit a child to decide, independently of his or her parents, whether or not the child would live in Australia or abroad. The father was in breach of the parenting orders then by keeping the children to live with him in New York.

The children had expressed that they wanted to remain with their father in New York rather than with their mother. So, how did the courts decide where the children would live?

What did the courts decide?

The primary judge in the matter ordered that the boys be returned to Australia. Once the boys returned home, the orders (as agreed by the mother) allowed the boys to choose from a number of options, where they would live. These options included living with the mother, living in accommodation provided by the father together with paid supervision services or, living with one of their friend’s parents who had agreed to accommodate the boys. If the father chose to return to Australia, the boys could also choose to live with him. These orders gave weight to the children’s preference as to where and with whom, they wanted to live.

Why do the courts consider the child’s preference and how much weight is given to it?

In making orders, the Family Court was required to consider the best interests of the children. The views expressed by the children were just one of the many factors considered by the court in deciding what is in the best interests of the child. The level of importance to be given to a child’s view will depend upon factors such as the child’s age or maturity, and level of understanding of what is involved in the choice they have expressed. A child may not, for example, appreciate the long-term implications of separation from one parent or the child’s siblings.

The primary judge in this case had made an interim order that allowed the children to live with a third party, someone other than their parents. The boys had expressed views that suggested at least one or both of them would not want to live with their mother. The court allowed other mothers of longstanding friends of the boys to be appropriate guardians. In deciding whether these other parents were appropriate guardians for the children to live with, the court considered whether they could offer “nurturing and care”, implement arrangements for monitoring homework, transportation to and from school and the type of sleeping arrangements that the boys would be given.

These orders were only interim orders however. The court found that more information would be desirable before making a long term parenting order in favour of third parties. In circumstances of urgency however, there was sufficient evidence before the court to make interim orders which included the option for the boys to live with one of their friend’s parents.

Want to learn more about child custody and parenting arrangements?

If you would like to learn more about child custody, have a look at our resources here created by our experienced child custody lawyers northside.

Or, if you’re looking to receive tailored legal advice, contact our team of child custody lawyers northside. Contact us today to receive a FREE 15-minute consultations with one of our experienced child custody lawyers northside.

Property Orders

Does a reconciliation with your former partner mean property orders no longer apply?

You may have gone through the process of separation and obtained property orders but have now  chosen to reconcile with your partner. If this is the case, you should not assume that your property orders will automatically be set aside or have no further effect just because you have reconciled. 

Property Orders

Property Orders – Can they be thrown out if you reconcile?

Orders of the Court take effect and are enforceable once they are made. If you want to ensure that the orders made can be disregarded and are no longer binding on you and your former partner, you must first make an application to the Court seeking an order that the property orders be set aside.

In a recent case, property orders had been obtained by parties by way of consent. However, as the couple had chosen to reconcile after the orders were made, the wife was seeking to have those orders varied or set aside.  In that case, it was a term of the property orders that the home be sold and that the husband and wife share equally in the net sale proceeds.

The Full Court found that the mere fact of the parties having reconciled was not by itself sufficient to for the court to find that the parties had impliedly consented to the property orders being set aside. The court said that regard had to be had to the circumstances of the couple’s relationship in order for the court to decide whether or not it could be inferred or concluded that the couple consented to the property orders being set aside even though the couple had not expressly agreed that the orders be set aside.

If you and your former partner reconcile then and want to ensure that existing orders will no longer apply, it will be important to obtain legal advice and make application to the court for the orders to be set aside. For more information on property settlement or for legal advice tailored to your circumstances, call our Family Law Team on (07) 3506 3651 today.

 

Parenting plan

Tips for arranging Mother’s Day with your former partner

Mother’s day is just around the corner. For children, it’s a good day to stop and appreciate the very special role Mother’s play in your life. For Mother’s, it should be a day filled with relaxing and spending quality time with your children. However, if you’re separated, it may be a difficult day to negotiate with your former partner.

To avoid any stress or confusion on the day, it’s a good idea to put in place a parenting plan with your former partner ahead of time. Here’s a few tips on how to ensure this Mother’s Day is an enjoyable one.

Parenting plan

Making a parenting plan for Mother’s Day

Whether this is your first Mother’s Day post-separation or you have been separated for a while, it can be a challenging day to face on your own. Naturally, as a mother, you want to spend this important day with your children.  It’s important then to ensure that you and your former partner can agree on a parenting plan for the day that will work well for you both as well as for the children.

There are a number of parenting plan methods you can put in place for Mother’s Day, depending on what suits both parties. Some more common ones include:

  1. A time-sharing arrangement over Mother’s Day weekend: This allows both parties to enjoy part of the day or weekend with the children. For instance, one parent (more likely the Father) would have the children from 9:00am on the Saturday until 9:00am on Mother’s Day. Then 9:00am on Mother’s Day until 9:00am the next day would be spent with the other parent (more likely the Mother).
  2. Mother’s Day arrangement: This parenting plan allows the children and you to enjoy your special day with the children. The children spend Mother’s Day each year with you. You might agree to make it a weekend or just the day that the children spend with you on Mother’s Day.

A similar parenting arrangement can then apply for the children to spend time with their Father on Father’s Day.  No matter what parenting plan you and your former partner decide upon, it’s a good idea to choose an arrangement that is less disruptive for the children and, if there is conflict between you and your former partner, one which involves as little interaction for you with your former partner as possible.

It is not a requirement for parenting arrangements that you have any legal agreement or court orders in place.  It often really helps however, if you and your former partner at least have a parenting plan that sets out what you have agreed for parenting arrangements. This will help to ensure that you have both considered all factors.

If agreement cannot be reached or where there is conflict or domestic violence involved, a court order can give you certainty and limit or exclude occasions where you and your former partner would otherwise need to interact in relation to arrangements for the children.

A court order may be obtained by agreement with your former partner and in that case, you do not need to attend at Court.

If agreement cannot be reached for consent orders to be issued, you may need then to consider making an application to court seeking parenting orders.  Depending upon your circumstances, you will likely need to attend or at least attempt a dispute resolution meeting with your former partner before any application is made to court.

You are welcome to contact us at LGM Family Law for advice specific to your circumstances. We can assist you in reaching a parenting plan or where necessary, obtaining court orders for arrangements for your children.

For more information on child custody, see here.

Brisbane Family Law

When Harry met Sally | Part Two | Settlement of Property

This week we continue our weekly series concerning the dilemmas faced by each of Sally and Harry after the breakdown of their relationship. We consider issues facing Harry and his viewpoint in relation to the final settlement of property that Sally is wanting to arrange with him.

Harry does not agree with Sally

Settlement of Property

Settlement of Property

This may not surprise you in itself. However, Harry’s first and foremost issue is not how property should be divided. As far as Harry is concerned, he does not accept that he and Sally are even officially separated.

Harry doesn’t dispute that they are now living in separate places. Harry had moved out to live with his parents but he believes that this was only a temporary measure whilst he and Sally sorted out their differences.

However, since he moved out, tensions between them had reduced and Harry had continued visiting Sally and the children at the house where she still lived with the children, evening staying for dinner with them and sometimes staying overnight. In fact, there had been a period of a few weeks about two months ago when he had stayed with them for a continuous period of a few weeks.

There had been a few occasions when they had talked about Harry moving back in and acknowledged to each other that they still had feelings for each other. They had not been sexually involved for a long time but Harry and Sally had slept together on a number of occasions since he moved out when he had stayed overnight with Sally and the children.

Harry had continued to financially support both Sally and the children, paying the mortgage and rates at the house where they lived as well as paying for groceries, health insurance for them all and other living expenses not only of the children but also for Sally.

Although their family and friends knew that he did not live full time at the house, Harry and Sally continued to socialise together with the children amongst family and friends.

What can harry do where he does not want to finally resolve property matters with Sally?

Unfortunately for Harry, if Sally is of the view that their relationship has broken down irretrievably and has conveyed that to Harry, she will be entitled to pursue a property settlement.

However, the question of whether or not they are considered to be separated at law will be important in determining when it is that either or both of them can apply for a divorce.

We would recommend to Harry that he has an initial consultation with a family lawyer experienced in family law, including property settlement matters so that he can obtain some preliminary advice about how his entitlement for settlement of property is worked out and what he could expect in a property settlement with Sally as well as obtaining advice about when and under what circumstances Sally may apply for a divorce if she wishes to do so.

At LGM Family Law, we offer a free phone consultation for up to 15 minutes. However you should be aware that we cannot act for both parties to a relationship or former relationship so that if Sally has already sought advice from us, we cannot also provide advice to Harry.

If you would like to learn more about settlement of property following a separation, click here.

However, since our Sally and Harry are only fictional characters, each week during this series, we will develop on Sally and Harry’s situation and discuss issues effecting each of them.

 

 

Family Law Property Settlement

How will Long Service Leave be treated in your family law property settlement?

Undergoing a family law property settlement? You might be interested to know how long service leave will be considered in dividing up your assets.

Family Law Property Settlement

Family Law Property Settlement

During a relationship, a party may accumulate fairly significant entitlements for long service leave. If the relationship breaks down, the other party to the former relationship may seek to require that those entitlements are taken into account or shared in the final division of property between the parties. It will be important to know how the court considers that entitlement and whether that other party has any claim on it.

To understand the position of the Court, it is necessary to understand the difference between assets and financial resources.

Property and Financial Resources

Property or assets, in a family law sense, includes real property, personal property and choses in action, such as the family home, a car, or a trust where a party is both the appointor and the beneficiary with unfettered control of that trust.

In contrast, a financial resource is something which is not in the possession or control of a party, but something to which that party may be entitled to at some point in the future. That entitlement may arise in a particular set of circumstances or at a particular point in time. It may include something like a family trust of which a party is a discretionary beneficiary (but not additionally a trustee) or in some cases, an anticipated inheritance (particularly where the Testator has not yet deceased).

Depending upon the circumstances, long service leave may be treated as akin to an asset or merely a financial resource.

If the long service leave is treated as in the nature of property, then it can form part of the asset pool that can be divided between the parties in a family law property settlement.

However if it is treated as a financial resource, then it is considered as a contribution during the relationship made by the party who is entitled to it and a factor that, dependent upon the particular circumstances, may be taken into account and lead to a percentage adjustment of the asset pool in favour of  the other party.

For example, a person’s long service leave may be considered in the nature of an asset rather than a financial resource where the person entitled to it could take the leave as either a lump sum or periodic payments, but only as a periodic payment if that person found a temporary replacement for himself  or herself whilst taking the leave. If a person has cashed in their long service leave entitlement and the cash or assets purchased with that cash remain in existence, then that cash or assets would more likely be treated by a Court as available to be dealt with in any property settlement between that person and his or her former partner.

However, where a long service leave entitlement has accrued but has not been taken, a Court may treat it as only a financial resource.

The way in which long service leave is treated can have a significant bearing on the outcome of a property settlement in family law.

If you have any questions about family law property settlement or would like advice in this area particular to your circumstances, you are welcome to contact us and we will be happy to assist.

 

Property Settlement

When Harry met Sally: Follow their story in Family Law Property Settlement

Follow Sally and Harry’s story each week: How will Sally resolve her family law property settlement claim against her former partner Harry?

Property Settlement

Property Settlement

 

Sally’s story so far

It’s April 2017 and Sally has just returned home from dropping her little ones off at school. The start of a new term and Benny and Izzy had been so excited to be back amongst their friends. The twins were only 5 years old and loving being at Prep school.

It was a constant struggle for Sally since she had separated from Harry just over a year ago now.

They had been married for 10 years. The first few years of their relationship had been carefree and without children, they had mostly just concentrated on each other and having a good time.

Sally had continued in full time employment before the twins were born. She had worked in the fashion industry as a buyer for one of the large department stores and had loved her job.

Sally has stopped work just before the twins were born. She hadn’t full appreciated what having children would entail but she and Harry could not have been more delighted when they were born. Sadly though, over the last 5 years or so, they had gradually grown apart.

It wasn’t easy now being effectively a sole parent. The children did spend time with Harry but only when he said he had the time. Sally didn’t doubt that Harry loved the children but his time was so limited. He was constantly travelling away from Brisbane on work and often working long hours even when he was at home.

It was hard for Sally then to know when she could be available to commit to regular work hours, even on a part time or casual basis.  But she was feeling very much that she needed to organise her financial affairs and to reach some property settlement with Harry. Unless she could that, it was just so difficult to plan for the future.

Sally was feeling very burdened, not knowing where she stood or how to go about making a property settlement with Harry.

She didn’t know what she would be entitled to from their property. Sally still held some shares that she had bought before she married Harry but otherwise, most of their property- essentially their house and superannuation- had been accumulated from Harry’s earnings during their relationship.

What should Sally do towards obtaining a family law property settlement?

We would recommend to Sally that she has an initial consultation with a family lawyer experienced in property settlement matters so that she can obtain some preliminary advice about how her entitlement for settlement of property is worked out and what she could expect. Next week in this series, we will look at some family law issues that Sally will need to consider.

At LGM Family Law, we offer a free phone consultation for up to 15 minutes when we can give Sally some general advice.

It is likely though that Sally will need more detailed advice than can be given over that time so we would recommend that Sally book a longer initial consultation with us when we will generally be able to give Sally an indication of her range of likely entitlement for property settlement based upon the information Sally gives us during the consultation. We can also work out a plan for Sally at that meeting as to how she can go about achieving that property settlement. That longer consultation is for up to 1.5 hours and is provided at a fixed rate of $242 including GST that is discounted from our usual charge rate.

Each week during this series, we will develop on Sally and Harry’s situation and provide family law advice for each of them I ntheir particular circumstances.  Next week, we will focus on concerns that Harry has around his concern for a family law property settlement.

 

 

 

Dividing superannuation

Can I obtain part of my former partner’s superannuation in a family law property settlement?

The family courts have power to divide payments made or to be made from a superannuation interest, between parties to a former relationship (called a “splitting order”) or to make an order which in effect restrains a trustee of a superannuation fund from paying out a party’s interest in superannuation or which precludes that party receiving his or her interest, pending further order of the Court (known as a “flagging order”).

Dividing superannuation

Dividing superannuation

The court cannot make orders of that kind though if the superannuation interest is “not splittable” or “not flaggable”. Payments that are not splittable payments include certain payments made on compassionate grounds (for example to treat a life threatening illness or a payment made to a member because of severe financial hardship).  An unflaggable payment will often be a pension.

In the past, superannuation was treated as a financial resource of the parties to a former relationship and not an asset as such. This was because the superannuation interest did not actually become a real asset until the interest vested on the retirement of the person entitled to the superannuation.  However, this could cause difficulties for a party in a family law property settlement, particularly where the superannuation formed a significant part of the asset pool that was available to be divided between the parties.

Today, however, the court has power to deal with a superannuation interest as though it is “property”.

Whether you and your former partner are involved in court proceedings or wishing to obtain consent orders (without actually going to court), in an appropriate case, an order may be obtained which effectively gives one party an interest in the other party’s superannuation.

Orders providing for a payment split of superannuation in favour of one party to a former relationship can be binding on the trustee of the superannuation fund so long as the trustee has been afforded what is known as “procedural fairness”. This involves ensuring that certain items are addressed, including ensuring that the trustee is given the appropriate period of notice of the intended orders.

There are different types of splitting orders that can be made. The most common method of splitting is the “base amount” approach. This is an order that gives the non-member partner an entitlement to be paid an amount (called the “base amount”) calculated in accordance with the regulations and there is a corresponding reduction in the entitlement of the member.

Where a splitting order is made, many funds have rules which allow the non-member spouse to have their interest in the superannuation rolled over into their own fund.

It is also important to consider whether you have grounds to obtain a splitting order or a flagging order. See our other blogs following on that area.

If you would like advice concerning how you may access part of your former partner’s superannuation as part of your property settlement, contact us and we will be happy to assist you. 

Child Custody Lawyers Brisbane

Relocating a child | Child Custody Lawyers Brisbane

On 4 April 2017, Queensland footballer and Melbourne Storm superstar Cooper Cronk announced that in 2018, he would be relocating from Melbourne to Sydney with his fiancé. With the issue of moving inter-state currently in the media, we wanted to look at relocation in Family Law on our blog this week, and in particular, how it works when parents are separated and one parent wants to move and take the children with them. Read on to find out from our Child Custody Lawyers Brisbane.

Child Custody Lawyers Brisbane

Child Custody Lawyers Brisbane

 

Sometimes, a parent may wish to relocate with the children interstate or to a place which is not within easy reach for the other parent to spend time with the children. If this is your situation and you and your former partner cannot reach agreement or resolve matters at a mediation, you will need to file an Application in court.

It is important to remember that as an adult, you have the right to pack up and go wherever and whenever you choose. However, as a parent, your child’s best interests must be considered. It may be that your child’s best interests lie in making the move that you wish to make. However, if the other parent objects, you may find that resolving this issue sees you in Court unless parents can reach agreement.

In most cases, you must attempt a dispute resolution meeting with the other parent before seeking the assistance of the court. However, this may not apply if the other parent has already relocated with the children without your consent. You may then apply to the Court seeking a recovery order and other parenting orders. You may wish first to try to reach agreement with the other parent. You  should be mindful though of not leaving it too long to go before the court if agreement cannot be reached. You will want to avoid a situation where your children become established in their new environment, possible involving a new school or kindergarten.

If you are the parent wanting to move, where agreement cannot be reached with the other parent through negotiation or a dispute resolution meeting, you will need to apply to court seeking a parenting order which provides for the children to relocate with you.

Once you get to Court

All parenting cases are determined on the facts of the case. There is no pre-determined outcome for a matter regarding relocation nor a formula that can be applied.  The Court will consider all the usual factors that are relevant in a parenting case.

The Court will need to determine whether it is in the best interests of the child to spend equal time with each parent and whether equal time is reasonably practicable. If it is not, the Court must consider whether the child spending substantial and significant time with each of the parents is in the best interests of the child and whether it is reasonably practicable.

The paramount consideration for the Court will always be what is in the best interests of the child. When determining what is in the child’s best interests, the court will consider the benefit of a child having a meaningful relationship with both parents, whether there is any risk of or actual family violence or neglect and numerous other factors.

As the parent wanting to relocate, you do not need to provide a compelling reason to the court for wanting to move. That being said, it can help when attempting to persuade the court that it will be in the child’s best interests to allow the child to relocate to demonstrate your reasons for wanting to relocate. Those reasons may for example effect your capacity to parent and this will be of relevance in determining what is in the best interests of the child.

Case Study

Sally and Mike have been married for 14 years. They have a 5 year old child, B. The family moves to a rural mining town for Mike’s new job. Sally really struggles with living in a rural town and decides to return to Brisbane with B. Sally and Mike separate shortly after. Mike applies to the court for a recovery order – to have Sally return to the rural town with B. This order was made, and upon returning to the town, Sally could not find a full-time job or a house for her and B to live in.

Upon appealing the recovery order, the court finds that although it was in the best interests of B to be able to spend equal time with both parents, it was not reasonably practicable for that equal time to occur in these circumstances. In circumstances where the relocation meant that Sally was living in a caravan and relying on Centrelink for income, the court ought to have considered alternative orders.

Get in Contact with our Child Custody Lawyers Brisbane

If you or someone you know is going through a similar situation, it’s important to seek legal advice early on. Our Child Custody Lawyers Brisbane, offer professional and experienced advice that can help you and your family to move forward in life. For more information on Child Custody, click here. Or, give our Child Custody Lawyers Brisbane a call today for a free 15 minute consultation.

 

Property Settlement Lawyers

Can you obtain exclusive occupation of the former matrimonial home after a separation?

Going through a separation? You might be wondering who gets to continue using the matrimonial home. Could you be entitled to the sole use and occupation of it?

Example Scenario:

Alfie and Joan are married. They have recently separated but have both continued to live at the former matrimonial home with their two children, Colin who is 16 years of age and Danielle who is 12 years of age. Colin is currently undertaking year 12 exams and is struggling with the conflict between his parents. Colin tells Joan that he can’t keep studying with the ongoing conflict and needs to have a quiet space. Joan asks Alfie to leave the family home to help make the home environment more suitable for the children and to allow Colin and Danielle to finish off the school year. Alfie is not happy about this and says that he won’t leave.

Question: Can Joan remain in the family home and require that Alfie live in alternate accommodation?

Separation

Who gets to use the matrimonial home following separation?

This issue of who will remain living at the former matrimonial home frequently arises when a couple separates. Some people will be able to resolve arrangements amicably and may agree to remain separated whilst living under the same roof.

Real difficulties can arise however where parties are not amicable. One party may not be able to  afford to arrange other accommodation but at the same time, the other party may not be willing to leave the former matrimonial home.   The parties may have children living at home and there may be issues involving domestic violence or abuse.

Section 114 of the Family Law Act 1975 (Cth) allows a party to a relationship (married or de facto) to apply to the Court for an injunction restraining the other party from doing a number of things, for example:

  1. from entering or remaining in the family home;
  2. from entering or remaining in the suburb in which the home is located.

Before such an order may be made, the Court hearing the matter must be satisfied that it would be “proper” to make the order.

Factors that a court will consider in determining what order may be proper to be made include:-

  1. The means and needs of the parties;
  2. The needs of the children;
  3. Any hardship to either party or to the children; and
  4. Where relevant, whether conduct of one party may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.

This is not an exhaustive list and there are other factors which the Court in its discretion may consider.

The party seeking the order for exclusive occupation must satisfy the Court on the balance of probabilities that there are sufficient circumstances that justify the Court in making such an order.

Where domestic violence and abuse is occurring, it can be expected that the Court will place significant weight on the negative impact of that abuse upon the children when considering all the relevant factors.

You are welcome to contact us or call us on (07) 3506 3651 if you are needing assistance settling your living arrangements and financial affairs with your former partner following separation.

Long Term Relationships

Does a long term relationship mean you’re entitled to part of your former partner’s property?

A recent Australian case has shown that even for very long term relationships, there is no guaranteed right to property settlement. 

Long Term Relationships

Long term relationships

 

It is wrong to assume that a person is entitled to a family law property settlement following the breakdown of their relationship, even where it was a very long term relationship.

The Full Court of the Family Court of Australia in a judgement delivered in December 2016 dismissed  an appeal against the decision of a trial judge that it would not be just and equitable to make any order for property settlement.

The case involved a 27 year relationship. By the time that the parties separated, one of the parties had assets and superannuation worth more than double those of the other party.

The trial judge had found that the parties conducted their affairs in such a way that neither party would or could have acquired an interest in the property owned by the other. Various reasons for that were given by the trial judge including that:

  • There was no intermingling of the party’s respective finances;
  • The parties did not have a joint bank account;
  • Each party had purchased property in their own name;
  • Each party was responsible for their own debts;
  • Each party could use their earnings as they chose without explaining or accounting to the other party;
  • There was a complete lack of joint financial decision making;
  • The parties did not share information with each other as to their individual financial decision making or their respective financial situations;
  • Neither party had taken steps to ensure that the other would receive property or superannuation in the event of death.

The Full Court said that the trial judge had made no findings that would point to any express and implicit assumptions that a party would ultimately share in the other’s property or that one would benefit on the death of the other.

For more information on property settlements, de facto relationships or same sex relationship rights under family law, click here. Or, to receive tailored legal advice with our experienced family lawyers, give us a call today.

Family lawyers in Brisbane

Are you entitled to receive financial contributions from the father? Our family lawyers in Brisbane are here to help.

It can be an exciting but overwhelming time being pregnant, especially if you’re going it alone. Last week on our blog we explored the rights an expecting mother may have in receiving financial contributions from the father. This week, see how the law would work in a real situation. You may find that you or someone you know is going through the same struggle and could benefit from this advice.

Family lawyers in Brisbane

Family lawyers in Brisbane

An example of how s67B works

  • Baby A is due on 1 March 2018. The mother, Jane, goes on maternity leave on 1 January 2018. Jane can seek maintenance from Baby A’s father, John, from 1 January 2018 (2 months before A is due to be born) through to 31 May 2018 (3 months after A is born). If Jane’s doctor tells her (and confirms in writing) that working is causing undue strain on Baby A and that Jane needs to finish work on 1 December 2017, Jane can claim support from 1 December 2017 if she stops work on that day, even though this is more than 2 months before Baby A is due.
  • The court has found that Jane can claim costs from John such as:-
    • Rental expenses
    • Food bills
    • Telephone and internet bills
    • Car and Petrol costs
  • But that Jane can’t claim for costs (under s67B) such as:-
    • Entertainment expenses like going to the movies;
    • Baby clothes and accessories like dummies or floor mats;
    • Baby furniture like a cot.
  • The court won’t take into account that Jane is getting a $5,000 baby bonus from Centrelink, but will consider that she lives at home and her parents own her car as a possible financial resource.
  • The court will also consider that Baby A’s father, John, has recently lost his job and that it will take him some time to find a new one. They’ll also consider the fact that John has a 2-year-old son who lives with him 9 days a fortnight for whom he does not receive any child support.

To find out more about child support options or parenting arrangements, click here.

Please be advised that each circumstance will differ. Please contact our family lawyers in Brisbane for a free 15-minute telephone consultation if you think section 67B may apply to you.

Single mum

Expecting mother? Do you have rights to financial contributions as a single mum?

Expecting mother? Wanting financial contributions from the father? If you’re about to be a single mum, it’s important to know what rights you and your unborn child have in accessing financial contributions. Read on to find out how.

Single mum

What rights do you have as an single mum?

 

After the recent swearing in of Donald Trump to office, the anti-abortion/pro-life argument has again become more publicised. In Australia, the fact of the matter is that the Family Court cannot make orders in relation to an unborn child. Consistent with that, a husband cannot prevent his wife from terminating a pregnancy.

With dating apps becoming all the more popular these days, the stigma which previously surrounded  pre-marital sex is becoming less prominent and, gradually, these notions are becoming more accepted by society. Likewise, pregnancies from artificial insemination and single parent adoptions are more common-place. In 1980 only 12.4% of babies were born outside of a marriage, compared to 2008 when more than one-third of all babies born were born outside a marriage.[1]

So what rights do you have as a single mum?

Liability of a father and what can be claimed

Section 67B of the Family Law Act 1975 allows a pregnant woman who is not married to the father of the child to apply to the court to have the father of her unborn child provide her with financial support.  The financial support includes a proper contribution by the father towards:

  1. the maintenance of the mother for the childbirth maintenance period in relation to the birth of the child; and
  2. the mother’s reasonable medical expenses in relation to the pregnancy and birth.

The section of the legislation can be broken down into different parts:

  1. Maintenance of the mother

It is only the mother’s maintenance and the mother’s medical expenses which are to be considered under a section 67B Application. This means the costs of purchasing clothes for the baby, nappies, baby food or formula, and furniture items such as a crib, are not covered under this application. These items instead fall under an application for child support.

The mother’s maintenance includes the living costs of the mother. This means things like the mother’s rent, food, phone and internet, petrol, car expenses, purchasing of maternity clothes, and so on.  The birth of the child and medical expenses includes medical costs such as pre-natal supplements, doctor’s appointments, hospital visits and stays, anaesthetist costs, and so on.

  1. The period of time

The act states that the period of time for which the father is liable to pay maintenance is as follows:-

  1. For no more than 3 months after the child is born;
  2. For no more than 2 months before the child is born. The exception to this is if the mother is employed, and receives medical advice from a Doctor to stop working for medical reasons related to her pregnancy and the mother then stops work after receiving that advice and more than 2 months before the child is due to be born; and
  3. If the mother dies as a result of the pregnancy or birth or the child is stillborn or dies where the death is related to the birth, then the father may be liable to make a proper contribution towards the reasonable expenses of the mother’s funeral and/or the child’s funeral, as the case may be.

What needs to be proven

The s67B Application itself is not as simple as the mother applying to the court for assistance and then receiving the funds she needs. The court has a duty to consider a number of things before awarding the financial support.

As summarised in a recent Federal Circuit Court Case[1], the Court must consider:-

  1. How much money each parent is able to earn, what property they each own, and what financial resources they each have (noting that an income-tested pension allowance or benefit – such as the baby bonus – is not considered to be a financial resource for either parent); and
  2. The necessary commitments both parents have for supporting themselves, as well as commitments to support any other child or person; and
  3. any special circumstances which, if not considered, would result in an injustice outcome or cause undue hardship to any person.

The court must be satisfied that the father is in a position to be able to make a contribution and that the mother is in need of the support. If the court is satisfied that this is the case, the court will then considers what is a “proper contribution”. Generally, courts consider a half share of the mother’s costs to be a proper contribution.[2]

The court will then determine when the father must make the payment and how the payment must be paid, whether by a lump sum or by weekly payments.

Please be advised that each circumstance will differ. If you think this section my apply to you as a single mum, or you would like legal advice for any other family law matter, contact us. We offer free 15-minute telephone consultation with our highly-experienced team of lawyers.

 

[1] Millar and Johnston [2015] FCCA 543

[2] Abrahams & Simm [2014] FCCA 67

Sources:

[1] Australian Institute of Family Studies, Families then and now: 1980 – 2010 (16 February 2017) Australian Government – Australian Institute of Family Studies <https://aifs.gov.au/publications/families-then-and-now-1980-2010>

Easter season

Parenting arrangements for Easter

Make this Easter an enjoyable one for the whole family with these simple parenting arrangements. 

Easter is an exciting time of year, particularly for the children. It’s a time for laughter, family and hopefully a visit from the Easter Bunny! As a parent, it’s natural to want to spend as much of this holiday season with your children. However, where you are separated from your former partner, getting to spend the entire holiday period with your children may not be an option. It’s important for your children that they can spend time with each of you.

You will want to plan ahead how the children will spend their time over this period.  Try to come to an arrangement that will involve the least disruption for your children as possible.

There are two common arrangements that you may like to consider. These are: a time-sharing arrangement or; an alternate year arrangement.

  1. A time-sharing arrangement each year

A time-sharing arrangement can come in a number of forms, depending on what suits both parties. One option might be for the children to spend from 9:00am on the Thursday until 9:00am on Easter Saturday with one parent and from 9:00am on Easter Saturday until Easter Monday 5:00pm with another. These times can then be reversed for each parent on alternate years.

  1. An alternate year arrangement

This would involve the Easter period being spent with one parent one year and alternating to the other parent the following year. One parent may choose to take all years ending in an odd number, whilst the other parent agrees to take years ending in even numbers.

It is wonderful if you can make arrangements directly with your former partner in an amicable way. If that is difficult in your situation however, we are able to help you with negotiating an agreement with your former partner.

For more ideas on parenting arrangements, see our related post. Or, if you need further advice or are struggling to reach an agreement with your former partner, contact our friendly team today.