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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.

 

 

 

 

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.

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.

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.

 

Reducing conflict following a separation

How to keep conflict at bay following a separation. 

Avoiding conflict following a separation

You may dread receiving emails or texts from your former partner. There may be sense of shock every time you see his or her name come up on your screen for fear of what new accusation there may be against you.  Changeover times for the children may be full of stress and tension for you having to deal with your former partner.

What to do in that situation?

One of the “mantras” of the Family Law Act is best interests of the children.  “Best interests” is the paramount consideration guiding a Court when determining what should be the care arrangements for children.

We would probably all agree that best interests includes keeping children out of any conflict between parents following a separation.   And not only for the sake of children.

Continuing conflict with your former partner can also keep you from being able to move forward with your life. It can erode your confidence over time and leave you feeling isolated from friends and family.

Sadly, you may find an escalation in conflict with your former partner as you seek to resolve your family law issues following separation. That is not an uncommon experience but the good news is that tensions often settle down after you have finalised the division of property or care arrangements for the children.

In the meantime though, it is important that you do what you can to reduce conflict with your former partner and the stress that that can cause for you and your children.

Often, that conflict is seeded in tensions that developed during your relationship and has a long and complex history. It may be that truly resolving that conflict would require real change in both you and your former partner.  Where you are separated, you need to be realistic then about what you can achieve. Since you can’t change your former partner, any reduction in conflict is going to depend upon change in you and your approach to the conflict.

Here are some suggestions which we hope you will find helpful:

  1. Try to bury the past: This may be easier said than done as you may feel very strongly that things have not happened – and maybe still are not happening- as they should in your former partner’s dealings with you. It will help though in your current communications if you do not make comments about what has gone wrong in the past. You can’t control what comments your former partner may make but if you can do this, it should help defuse ongoing tension.
  2. Be careful in your choice of language: As much as possible, be polite to your former partner in the way that you address him or her. You may feel that your former partner has been at real fault in his or her treatment of you. You may well be right. However, if you use language of blame or accusation directed at your former partner, it will be hard to see improvement in the way you communicate. Even if he or she continues to be rude to you, if you can keep communications polite and not “fuel the fire”, it will likely help you in your feeling about communications. It is harder too for the other person to keep on the same negative track if you are not responding in kind.
  3. Making some mutual ground rules: You should give some thought to what situations or issues may be commonly causing conflict between you. For example, it may ease tensions if you both set some ground rules such as not making calls to each other after a certain time of night or agreeing that you will each only use certain language when addressing each other.   If you are in the middle of trying to reach a property settlement or formal arrangements for your children, it may ease tensions if you agree that you will not speak to each other about these issues but that all communications on those areas must be by email between you or conducted only through your solicitors.
  4. Making your own ground rules: If you are finding that your former partner is sending you a barrage of emails or texts and you are feeling harassed, you should carefully consider if it is really necessary for you to reply to a particular communication before you go ahead and do that. Choose to respond only when it is essential for arrangements for the children.
  5. The bottom line: If your former partner persists in conduct that leaves you feeling threatened or at risk, then you may need to take other measures. Contact us for advice in this situation.

 

Helping to ensure child safety

Let’s talk child safety.

Every child deserves to feel safe and protected at all times. Unfortunately, not every child has that security.  If you have been witness to child harm or have reason to suspect that a child is being subjected to harm, it is important to know what you can do to help ensure that child’s safety. Whether you’re a concerned family member, teacher, doctor or friend, your voice is an important one in preventing harm to a child.

Helping to ensure child safety

What is harm?

The Child Protection Act 1999 provides authority for the Department of Communities, Child Safety and Disability Services to intervene where a child has been or is at risk of being harmed.  Harm is considered as any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing. Harm can be caused by physical, psychological or emotional abuse or neglect or through sexual abuse or exploitation.

Is the child in need of protection?

A child may have already suffered significant harm, be currently suffering significant harm, or be at an unacceptable risk of suffering significant harm. In any of these situations, where the child does not have a parent able and willing to protect the child from harm, under the Child Protection Act 1999, that child is considered to be in need of protection.

So, what do you need to do next?

If you reasonably believe that a child may be in need of protection, you may contact the Department of Communities, Child Safety and Disability Services.  There are also certain people who are mandated to notify the Department, such as doctors, teachers and registered nurses, where during the course of their engagement they form a reasonable suspicion concerning significant harm having been suffered or being suffered, by a child or there being an unacceptable risk of the child suffering significant harm, caused by physical or sexual abuse and that the child may not have a parent able and willing to protect the child from the harm.

When informing the Department of an alleged child abuse issue, it is important to provide a detailed, clear, and comprehensive report. The Department will use that information to determine whether or not to investigate allegations of harm and to carry out an assessment to determine if a child is in need of protection.

Providing this information in a timely manner to the Department, can seriously improve the child’s chances of being protected against any further harm. For more information on child safety, visit the government website, or contact the LGM Family Law team today.

Property assets: future tax considerations

Can future tax liabilities be taken in account when reaching a property settlement with your former partner? 

What place can future tax hold in determining property assets?

Can future tax liabilities be considered in Family Law proceedings?

One of the first steps to be taken following a separation is to determine the assets and liabilities of the relationship – known as the “property pool”. Before the property pool can be distributed between the parties, the items which make up the pool must be established and valued. Attributing a value and determining the associated liability of an item is important as it allows us to work out the overall percentage of the property pool the parties will receive. This task has to be done fairly, first and foremost, so that the court can be satisfied that the division is just and equitable, but also so that each party can feel satisfied with the result and be able to move on to the next chapter in their life.

So, what about future tax liabilities?

In the matter of Rogers,1 a husband argued that the possible future tax liability of the family business (being transferred from the parties jointly, into the sole name of the husband) should be paid from the matrimonial property pool. If he were successful in his argument, the value of the property pool would be reduced by some $517,000. It is important to note that at the time of the trial, the tax liability had not issued and was anticipated only – no one could be sure what the liability would amount to if it became payable.

The Court held that liabilities that were vague or uncertain (such as future tax liabilities), could not be deducted from the property pool. In this case, as the tax liability was uncertain and could change in the future, the court found that it was not just and equitable to reduce the property pool on account of the future anticipated liability.

As seen from Rogers, we now know that future tax liabilities and other uncertain future anticipated liabilities, generally won’t be considered in a matrimonial property pool.

 

Sources:

1                  Rodgers [2016] FamCAFC 68

2              Glade-Wright, Robert (2016). “Future tax debts remain out of pool” in Proctor, Queensland Law Society, September 2016 – Vol.36 No.8.

Merry Christmas from the LGM Family Law Team!

It’s beginning to look a lot like Christmas! From the LGM Family Law team, we wish you a safe and Merry Christmas. With only two more sleeps to go, we thought we’d share some of our favourite ideas on how to spend them.  

Merry Christmas from the LGM Family Law Team

Christmas Parade – Take the family into the City to catch a glimpse of the spectacular free Christmas Parade hosted by the Brisbane City Council in Queen Street Mall. Running from 7 – 7:30 pm tonight and Christmas Eve, it’s the perfect way to get into the holiday spirit.

Christmas Light hunting – Discover the best Christmas light displays in your local area with 4KQ’s Christmas light winner’s list. Feel the Christmas magic as you gaze at the incredible lighting displays.

Beach Cinema – Unwind while watching your favourite Christmas movie classics on the big screen. Hosted at South Bank Parklands at Streets Beach, enjoy a free viewing of Elf with your family tonight from 6 to 7:30 pm.

Most of all, make sure you take the time to enjoy your Christmas break with friends and family.

Allegations of family violence in a child custody battle

How might family or domestic violence allegations affect you seeing your children?

Your former partner has falsely accused you of abusing them in the presence of your children. Maybe you have been falsely accused of abusing your children. Will it impact your parental right to see and spend time with your children? What can you do?

Dealing with family violence accusations

 

It can be a distressing time discussing parenting arrangements (previously known as child custody) with your former partner. Add a false accusation of abusive behaviour, and your stress levels could go through the roof. It is important to take these sorts of accusations seriously. They may impact the orders that a court will be willing to make around the time that your children have with you, at least on an interim basis. However, the fact of accusations being made doesn’t mean you lose any chance of seeing your children.

In the early stages of a court proceeding, orders may be made for the time that children spend with each parent on an interim basis.  Those Orders ordinarily outline the role of each parent, and often set out who will have the primary care of your children until further orders are made. Although it is only the first order, these orders may be in place for up to a year or more depending on how your matter progresses and how busy the court lists are.

How might a false accusation of family violence impact your rights at this early stage?

The court has two primary considerations when it comes to parenting arrangements for a child. The first is to facilitate a meaningful relationship between the child and both of their parents. The second is to protect the child from being subjected or exposed to abuse, neglect, or family violence. However, the court must give greater weight to the second consideration – protecting the child from abuse, neglect, or Family violence. If there are allegations of abuse, neglect, or family violence, the court must look at making provisions to protect the child. This could mean that one parent receives primary care of the child/children, whilst the other parent may have restricted or only supervised time with children, at least until the Court is able to test the evidence concerning the allegations of violence.

During an interim hearing, evidence cannot generally be tested and instead, is weighed up on the probability of the claim.

However, the court is entitled to heed allegations which the court regards as significant and to consider the allegations in the context of an interim hearing.

Our experienced legal team can help you through this process, to ensure your evidence is presented in a way which will assist your case.

Online harassment following a separation? Here’s what you can do.

You’re experiencing online harassment and being tormented by an unknown author. You have suspicions it’s your ex. What can you do?

Online harassment following a separation

Online harassment and abuse by a former partner can sometimes follow in the aftermath of a separation. Harassment can come in many forms. It may be defamatory materials published or inappropriate sexual comments directed at you or a family member. All types of online abuse can be hurtful, damaging to you or a family member’s reputation and even threatening.

It’s important for you to know who you can turn to for help and stop the abuse before it gets worse. Our family law practice has the experience and understanding to assist you in the face of this kind of abuse. If you have found yourself the subject of online abuse or harassment, we’re here to help.

So, what can you do?

Unfortunately in our digital age, social media platforms like Facebook have made it easier than ever for faceless bullying to occur. You may have suspicions that your former partner is using an alias to harass you online. This is where we can help. Luckily, all activities of online users creates a trail of metadata. Metadata is data that your network provider records every single time you use your mobile device. This may include making a call or accessing the internet. Your network provider is obliged by law to record this metadata and store the information for a minimum of two years.

This data enables you to see who someone’s talking to, for how long and where the caller was when they made the call. It can also track their activities on the internet. You can even use this data to map a user’s usual route to work, pinpoint where they live and where they holiday. Information like whether they travel in a car or by public transport can also be traced. This is can be gathered even if they aren’t accessing their phone all the time.

Metadata records can also be subpoenaed by other parties. This will grant access to a record of all calls made, all internet usage and the times, dates and various locations of users at any given point in time. At our family law firm, we have experience in accessing metadata records for family law and domestic violence law purposes, to help you resolve issues such as online abuse by a spouse.

Contact us today to find out more.

Free Consultations with our Family Lawyers at Chermside

Monthly Free Consultations with our family lawyers! Next session 5:00pm-8:00pm on 4 August 2016. We offer complimentary consultations each month at Chermside. One of our family lawyers will be available to give you personal advice on your matter. You or a family member may have separated or may be thinking about your future direction. Whatever your situation, knowing where you stand can help you make the best decisions for you and your family. CONTACT US to make your booking. PRE-REGISTRATION is ESSENTIAL and places are limited.

Family Law Consultations

 

Or if you can’t make it to one of our free consultations held at Chermside, why not give us a call today? We know it can be tricky knowing where to start when you’re looking for advice following a separation, child custody battle or any family law matter. That’s why we provide free 15 minute consultations over the phone. You can speak with one of our senior solicitors to gain useful and immediate advice to help you start your journey forward. Call us now.

Loans and Gifts offered by parents in family law. Is there a difference?

 

 

Parents are often eager to help their adult children setting up home with their new partners. As parents, wanting to see their child build a solid financial future is natural. Which is why providing money, whether as a loan or a gift, towards the purchase of the couple’s first home is common. With the median property price for a home in Brisbane apparently exceeding $600,000, it is not surprising that for many couples starting out, breaking into the property market would not be possible without parents’ financial support.

At other times, parents may help out with finance for a new car; the cost of braces for the youngest grandchild or towards renovations for a new kitchen.

For the parents, it is a wonderful thing to be helping to set their child up for the future or simply to be making life just a little easier where possible. For the lucky recipients, it is often a welcome stress relief and unexpected boon.

Sometimes, a parent may expect that that the money will eventually be repaid. On other occasions, money may be intended as a gift, without any expectation on the parent’s part that it will be repaid.

Even where there may be some broad understanding that monies will be repaid, it is often the case that there is no written agreement or even correspondence that shows that this is what parties intended.

Difficulties can arise years later however where the couple may decide to separate or divorce. The money that the parents previously provided the couple may become an issue in their property settlement. Parents may at that point become concerned that that amount be repaid to them or at the very least that that amount be “credited” in favour of their child in the property settlement.

Why does it matter whether money is provided as a gift or a loan?

Many different factors are important at law in determining what property is available for division between former partners and entitlements of each party. For more information on this topic, see our Property Settlement Law page.

In Family Law, debts of the relationship are taken into consideration and reduce the net asset pool available for division between a former couple.

If a family member provided money to a former couple or their relation by way of a loan, then it may be viewed as a joint debt of the relationship. The balance owing will then be taken into account as a debt of the relationship requiring payment. This means the actual amount owing to the family member is deducted from the assets available for division between the parties.

If, the money received from a family member is characterised as a gift,the money gifted will be treated as a financial contribution made by the partner whose family member provided the original funds. That partner may then expect that some adjustment from the asset pool may be made in his or her favour.

It is important to note however that the partner whose family member provided the original funds is unlikely to receive a dollar for dollar adjustment in his or her favour for the amount of the original gift.

In some cases, when money is gifted very late in the relationship, the gifted amount may be quarantined in favour of the partner whose family member provided the original gift or the monies may be excluded from the pool of assets being divided between the former partners. However, whether this will occur will depend on many different factors, including at what stage in the relationship it was received. However, there is no guarantee that money received late in a relationship will be excluded by the Court when determining what property is available for division and how it should be divided.

It is not uncommon after separation for a dispute to arise in relation to whether money received from family members was a gift or a loan. Clearly, one partner will benefit if their family member receives their money back and then they receive their entitlement from the reduced asset pool, only to have the money re-gifted or the debt waived once the property settlement with their former partner is finalised.

Where there is a dispute whether monies were provided by way of loan or gifted, a Court will closely consider the terms of the arrangement in order to ascertain whether the money was intended as a gift or whether it actually is a debt of the relationship and should be repaid by the parties.

Is it a gift or a loan?

The Court will consider all of the circumstances surrounding the transfer of the money, including but not limited to:

Whether there is a written agreement providing the terms of a loan;
Whether there is a finite loan period or a date/s for repayment;
Whether there have been any repayments made;
Whether there have been any requests for payment from the alleged lender prior to separation;
The purpose or intention behind the transfer of the money;
at what stage of the relationship it was received;
How many years it has been since the money was provided and whether subsequent actions (or inaction) has changed the nature of the initial agreement;
Whether the alleged loan is secured by way of mortgage or charge; and
Any other relevant factors.
If you are intending to loan a family member who is in a relationship or marriage some money, or you are the recipient of an inter-family loan, all parties should obtain independent legal advice and ensure that the loan is appropriately documented before any funds are provided.

If you would like more information on how to determine whether monies are likely to be characterised as a loan or a gift, please do not hesitate to contact LGM Family Law. Or call us today for a free 15 minute consultation.

Property Settlements

Former partner wasted your assets? Can property settlements help you recover any losses?

Can property settlements help you recover assets your former partner wasted?

Property Settlements

Former Partner wasted your assets? Can property settlements help?

 

Your former partner may have spent money during your relationship on a regular basis gambling or buying alcohol or making high risk investments that resulted in financial losses.  Your former partner may have sold assets, particularly towards the end of your relationship and later failed to account for the proceeds from sale of those assets.

We are often asked in these situations what the other partner may claim in a property settlement to recognise any wastage of assets by the former partner or to compensate that other partner in relation to a disposal of assets by the former partner.

This is an area of law which has been the subject of scrutiny in more recent years. In some previous cases, the Family Courts had taken an approach of  adding back into the asset pool in certain instances the value of assets which had been wasted or disposed of by the former partner and treating those notional assets as having been received by that former partner as part of his or her property settlement.  This had the effect, in appropriate circumstances, of treating assets which no longer existed as part of the asset pool available for division between parties.

However, a relatively recent decision of the High Court of Australia has again emphasised that property orders may only be made in relation to property which actually exists at the time that the orders are made.  Whilst wasted assets or assets which have been disposed of then may not be treated as part of the notional asset pool, the other party may claim an adjustment in his or her favour out of the existing asset pool on the ground that it is just and equitable in view of the conduct of the former partner.

It is not all losses flowing from investment decisions made by a party to a relationship that would justify an adjustment being made in favour of the other party. Losses as much as profits may arise from legitimate investment decisions made in the pursuit of matrimonial objectives.  For the losses to be considered as justifying an adjustment in favour of the other party out of the asset pool, the former partner would need to have been acting in a particular manner, for example, acting recklessly or negligently or with wanton disregard in dealing with the assets.

If you want to learn more about property settlements, click here. Or, contact our friendly staff today today to set up a consultation.

Legal Costs

How can I keep control of my legal costs?

How can you keep control of your legal costs and ensure you’re getting the best results for your money?

Legal Costs

Keeping control of Legal Costs.

 

 

Retaining an experienced family lawyer will greatly help you through the legal process and reduce the stress that comes with separation and finalising agreements with your former partners. Family law proceedings can be costly but you should make sure that you are containing those costs where you can and avoiding unnecessary costs. Here are some things to consider to help you retain control over your legal costs:

1. Obtain legal advice from an experienced family lawyer early on about your entitlement

You do have the option of representing yourself but a family lawyer can advise you what is reasonable for you to expect, whether for arrangements for your children or for property settlement. This will go a long way towards helping you to reach an agreement with your former partner sooner rather than later. Time spent claiming more than your entitlement is likely to increase both the time taken to reach a settlement as well as your legal bill.

2. Instruct a lawyer to act for you

Make sure that you obtain advice from a competent family lawyer and have that lawyer draft and finalise your legal documents. One area of activity for family lawyers is applications to Court for people who prepared their own documents only to find that they were unworkable and that further orders of the Court were needed to correct errors that could have been avoided in the first place had a competent family lawyer been involved.

3. Be Specific

Remember that lawyers generally charge on a time incurred basis. You should certainly ask your lawyer whatever questions you may have. Be careful though not to provide them with information outside of what they request from you from time to time. You will be billed for your lawyer’s time spent reviewing material so it is important for you that time is not spent reviewing material that was not requested and which is not relevant. Remember that a lawyer is entitled to bill you for their time, including where you tell them about how you may feel about your former partner’s attitude towards you or about his or her behaviours. If your lawyer requires those kinds of details, for example for a domestic violence matter or where parenting is in issue, he or she will let you know. Otherwise, it is likely better for you to speak to a trusted friend about your feelings. You may also want to consider obtaining some counselling to help you through separation which is understandably a harrowing time for many people.

4. Prepare initial important information for your lawyer

This will save your lawyer time and time saved is money saved for you. We have set out below some information that you can prepare to give your lawyer at your initial meeting. There will be other information that your lawyer will request but being ready to provide this information will help in saving time.

  • Property Matters
        : If you have

    a property matter

      , take with you to the first meeting with your lawyer a list of all current assets and liabilities whether held in your name, in the name of your former partner or held jointly or by any corporation or trust which you own or control. It will also assist to provide at least an estimate of the current market value of those items. Don’t be concerned if you do not have all of this information at the outset. You can obtain the details of your former partner’s financial position by requiring his or her financial disclosure and your lawyer can assist you with that. You should also be ready to provide your lawyer with information about the financial and non-financial contributions which each of you and your former partner made to the relationship both at the date of commencement of cohabitation as well as during the relationship. This will include what assets and liabilities you each held at or during those times as well as financial windfall gains such as inheritances as well as information regards the role that you each took in care of the children; home duties; DIY work; home renovations and administration of your lives together.
  • Children Arrangements
      : If you are concerned with arrangements for your children, be prepared at the first meeting with your lawyer to provide details of your children’s full names and dates of birth; schools they attend & some information as to their progress as well as details of any special needs; the level and kind of care that each of you and your former partner provided for the children both during the relationship and since separation; time that the children have spent with each of you since separation; the current living conditions for the children whilst in your care and whilst in the care of your former partner; any child abuse or domestic violence (including details of reports to Police and any Protection Orders applied for or obtained) & information regards any alcohol or drug abuse by either you or your former partner.

5. Provide full and frank disclosure

Each of you and your former partner have an obligation to provide full and frank disclosure of your financial position. If you finally settle your matter without having done this, you risk having any Orders you have obtained or any binding financial agreement set aside and costs awarded against you on a future application to the family court by your former partner. Your lawyer can advise you regards the documents that you are required to disclose to your former partner.

6. Be considered about how you provide your instructions

After your initial meeting with your lawyer, where practical, give what information you can by email to your lawyer. Your lawyer can then let you know if he or she wishes to speak with you about the content of the email or requires further information. If you are calling to relate limited, concise information or to confirm a meeting, it can be more cost effective to leave a message for your lawyer with his or her assistant rather than speak directly with the lawyer.

7. Set aside your personal feelings as much as possible when negotiating with your former partner

This can be difficult to do but trying to use the negotiation or court process to punish your former partner or taking a “winner takes it all” approach to reaching final agreement with your former partner will very likely result in it taking far longer to finally settle your matter. The longer it takes, the more costly it is not only for your former partner but also for you. Doing what you can to ensure that both you and your former partner are not spending money needlessly on legal costs is going to benefit both you and your former partner and therefore your children also.

8. Be willing to compromise and settle your matter as early as possible

If your wish is to press your matter to its limits, your lawyer will follow your instructions. Sometimes though, it is better to compromise and concede on some points or to take something less in a property settlement in order to finalise an agreement with your former partner. This will be particularly so where the cost of continuing with your matter exceeds the benefit or amount of what you may be conceding. Again, this is where it is important to keep a level head. There are many examples of people who refused to settle their matter and continued on only to settle at the same level or less in their favour at a later point in time but after having spent considerably more in legal fees. There is too that once you settle your matter, you can get on with living and planning for your future. For many people, this is a reason in itself to compromise and settle early.

For more information on our legal costs and services, contact us today. Or, have a look at our range of services here.

Is it okay to use Social Media and Email during my family law matter?

 

We see people letting off steam all the time through social media platforms like Facebook, twitter and Instagram. Email and text messages too are an easy way to vent our feelings. In a matter of seconds, your comments may also be shared on Facebook; your tweets re-tweeted or your emails or texts received and forwarded. Beware that using social media, email or text to vent during a family law matter is definitely a perilous thing to do.

Can social media be used in a family law matter?

Guiding Principle

The guiding principle is fairly simple. You should not use social media, email or any form of messaging to discuss or comment upon your family law matter or anything or anyone involved in your family law matter. You should especially avoid comments relating to your former partner’s behaviour or requirements concerning your family law matter; your children in relation to your separation; anything or anyone related to a family law action or comments on any other subject relating to negotiations or agreements to be entered into with your former partner.

If you do this, you risk prejudicing or at least complicating your own case. Even where you are not in Court, these entries, emails or texts may prejudice any claims that you are making for property settlement or damage your claim for arrangements that you seek for your children by revealing information that may undermine your case. Those entries may also lead your former partner or his or her solicitors to make enquiry about matters that would not otherwise have come to their attention but for the communications that you may have made.
If you are in Court, you may well find that your social media entries or emails or texts are reproduced in your former partner’s affidavits to your detriment.
You may also be committing an indictable offence under section 121 of the Family Law Act 1975 (Cth).

Prejudice to your case/Live Examples

Imagine for example that you are claiming that you are available to care for your children and are therefore seeking that they spend time with you for five nights every fortnight. An entry that you made on facebook some time previous however refers to your plans to work interstate on a fly in fly out basis. It may be that those plans have been aborted or it may be that your fly in fly out arrangements do not interfere with the care arrangements that you are seeking for your children. Either way, production of that facebook entry by your former partner or his or her lawyers may well complicate your claim.

Another example would be facebook posts or tweets that refer to your recent overseas travel at a time when you are claiming spousal maintenance from your former partner. You are entitled to enjoy a holiday. It may even be that the particular holiday was done on a close budget. However, whilst you must disclose details of your financial circumstances, facebook entries of this kind in the hands of your former partner or his or her solicitors may again complicate your claim, possibly raising the spectre that you may not have the required financial need for spousal maintenance or causing your former partner or his or her solicitors to make enquiry requiring further disclosure of any other funds that may be available to you.

Risk of breach of Family Law Act and possible prejudice to claims you are making

Comments that you may make through social media, email or messaging, for example, sharing a post on facebook or instagram or tweeting, may involve a breach of section 121 of the Family Law Act punishable on conviction by imprisonment for a period of up to one year. There may be a breach of that section where those comments identify any parties; related persons (such as children; an Independent Children’s Lawyer of Family Report Writers) or witnesses to proceedings before the Family Court of Australia or the Federal Circuit Court of Australia. You should be aware that your former partner and his or her lawyers may be looking at your facebook entries. This will be a risk even where you have strong privacy settings or you have set up restricted groups to share information.

The safest policy

…is to avoid using social media during your family law matter and not to make any comment about it; your former partner or any other person connected to your family law matter in any emails or messages that you may send.

If you need advice or want to learn more, contact us today and receive a free 15 minute consultation.

Family Court

What Happens in a Family Court Trial?

Preparing to go to the Family Court? Find out what happens in Family Court to make sure you’re prepared.

Family Court

What happens in Family Court?

 

A trial in the Family Courts occurs only after various steps in the Court process have been completed.

This article is a general guide concerning certain of the major steps in family law proceedings in the Federal Circuit Court of Australia. The process in the Family Court of Australia is somewhat different. What happens in any particular case will depend upon its particular circumstances.

Commencing Proceedings

Unless there are circumstances of urgency (including in a parenting matter, the risk of child abuse), we suggest that you should explore other avenues for resolving family law issues before resorting to court proceedings. For example, you may have negotiations with your former partner, directly or through your solicitors or go through a mediation or collaborative law process. Generally, we recommend that court proceedings, which can be lengthy and are expensive, should be approached only as a last resort.

If you find that it is necessary to initiate an action seeking parenting orders, before filing your application, unless certain exemptions apply, you must obtain a certificate from a family dispute resolution practitioner. That certificate in then included with your application. If you do not file a certificate or an affidavit which demonstrates that the requirements for an exemption apply, the Court cannot accept your application.

There are a number of steps involved before a matter will come to trial. You have the opportunity to reach agreement with your former partner and settle your matter throughout the court process. If you do this, the Court will then issue Consent Orders which confirm your agreement with the other party. Most parties engaged in a court action will settle their matter this way. In this situation, they will not then need to go through to trial but the court action concludes with the issue of the Consent Orders.

Documents

The documents to be initially prepared and filed with the Court in property and parenting matters include:

For the person starting the Action (the Applicant)

  • An Initiating Application – This document includes any interim orders as well as the final orders that the person starting the action (the Applicant) is asking the Court to make. These orders can be orders concerning financial matters and/or maintenance or orders concerning children or both;
  • An Affidavit – This document sets out the evidence of the Applicant as to why the orders which the Applicant seeks should be made.
  • Financial Statement – This document sets out the financial information concerning the Applicant and is filed in a case where property or maintenance orders are sought.

For the Applicant’s former partner (the Respondent)

  • A Response – This document includes any interim orders and final orders that the Respondent is asking the Court to make.
  • An Affidavit – This document sets out the evidence of the Respondent as to why the orders which the Respondent seeks should be made.
  • Financial Statement – This document sets out the financial information of the Respondent and is filed in a case where property or maintenance orders are sought.

First Court Date

When the documents are filed, the Court allocates the first Court date. The time and date for this hearing is included by the Registry on the first page of the Initiating Application.

The first court date will generally be about 6 weeks after filing, allowing time for the Initiating Application to be served and for the Respondent to prepare, file and serve the response documents. The first court date may be earlier for more urgent applications.

On the first Court date, the parties advise the Court about the issues. Generally, the Court will address the following areas:h

  • Procedural Matters – The Court will make procedural orders for the further progress of the matter (such as dates by which certain steps in the proceedings are to be completed). In property cases, these orders will often include a timetable for the provision of information; the exchange of valuations and relevant documents. They will also often provide for a process for determining the assets and liabilities which comprise the net asset pool of the parties as well as for determining the value of relevant assets where value is in dispute between the parties. In property cases, the orders may also provide for conciliation conference where the parties have an opportunity to agree a final settlement or to narrow the areas in dispute. In parenting cases, the orders made at this stage may include orders requiring the delivery of a family report. This is a document which is prepared by a family report writer after he or she has interviewed each of the parents and the children (at an age appropriate level). You will find further information concerning family reports elsewhere in our blog;
  • Interim Orders – The Court will consider any interim orders that may have been sought by either party. Interim Orders may be made at that time or the Court may adjourn hearing of any argument concerning those orders to a later date.There is an opportunity on the first Court date for parties to reach agreement whether on an interim or final basis. If this occurs, the parties present the proposed consent orders to the judge requesting that they be issued whether on an interim or final basis.

Conciliation Conference

The next formal step after the first Court date in a property matter is generally the “Conciliation Conference”.

A Conciliation Conference provides the parties with a formal opportunity to negotiate and reach final agreement or to narrow the matters in issue. Even where parties cannot agree a full settlement of all matters, it may be possible to reach agreement on some issues and to clarify what issues remain in dispute.

If all issues are not settled so that the matter must proceed beyond the Conciliation Conference, further procedural directions will be made (such as dates by which certain steps in the proceedings are to be completed).

Trial

The final step in the proceeding is a trial which is held before the Judge. Each party gives their evidence and makes their submissions. The length of a trial varies dependent upon the complexity of the issues which remain in dispute at the time of trial. Unless the Judge otherwise approves, all evidence must be presented to the Court by way of affidavit.

At the final hearing, the Applicant (or his or her lawyer or Counsel) will outline the Applicant’s case and the Respondent may cross-examine the Applicant or his or her witnesses. The Applicant (or his or her lawyer or Counsel) may then re-examine those witnesses. In the same way, the Respondent (or his or her lawyer or Counsel) will outline the Respondent’s case and the Applicant (or his or her lawyer or Counsel) may cross-examine the Respondent or his or her witnesses. The Respondent (or his or her lawyer or Counsel) will have the opportunity to witnesses. You may then re-examine those witnesses.

Any independent children’s lawyer who may have been appointed may also present evidence to the Court and cross-examine witnesses. Any single experts who prepared a report may be cross-examined by the parties. For example, in a case where parenting orders are sought, parties may wish to cross-examine a family consultant may have prepared a report including certain recommendations for arrangements for children. In property proceedings, the parties may wish to cross-examine single experts who provided reports as to the value of certain assets.

Each party also has the opportunity to give a final address to the Court making final comments in support of his or her case.

Judgement

The Judge will give a decision, including reasons for the decision, following the conclusion of the parties’ respective submissions. However, the decision is often “reserved” so that judgment is not given until a later date. This is usually within three months of conclusion of the trial or at a later date where the Court has a heavy workload. Parties will be informed of the date for delivery of the decision and are required to attend at Court on that date.

Preparing to go to the Family Court can be a stressful time, but one way to reduce that stress is to feel confident and prepared on what will happen during your Family Court matter. If you need advice or are considering taking a matter to the Family Court and want legal advice, contact us. We provide free 15 minute consultations over the phone, so get in touch today.

A reason for caution in Family Reports and how your children will be involved.

Things to be aware of in family reports and how your children will be involved.

Children

Family reports and how your children will be involved.

If you are before the Court in a parenting matter, you may expect that the Court will make interim orders requiring the preparation of a family report. The report is prepared by a family report writer after he or she will have spoken with you and your former partner and quite likely your children also. Dependent upon the age of your children, the time that the report writer spends with your children may be more discussion or play based.

The report that the report writer prepares is filed in the Court and forms part of the evidence before the Court. The report will likely include some account of the interview held with each of you and your former partner and the children. Where children have expressed a view about how much time they wish to spend with each parent, you may expect that this will be included in the report. At the same time, the report writer is likely to include in the report some observations concerning the level of maturity of the children and the consequent weight to be given to their views. The more mature the child appears to be, the greater the weight you may expect will be given to their views.

The amount of time that the report writer spends interviewing a family varies but it is not unusual for the interviews with each of you and your former partner and children to extend collectively over approximately 4-6 hours for a family of four and sometimes longer. However, whether the collective interview period is some 4 hours or 8 hours, the opportunity that the report writer has to gain some insight into the dynamics of a family can sometimes be quite limited.

Report writers are typically very experienced and adept at concentrating the interviews on the areas in issue. Nonetheless, the views that they form are predicated on the information available to them. That information includes the evidence as disclosed by the affidavit material filed by both you, your former partner and any medical experts as well as information gleaned during the interview process.

Even if certain facts concerning your family are evident to you, unless those facts are borne out by independent evidence filed in your case, you risk the report writer considering that what you believe are facts are a matter of your opinion only.

A family report is one tool but an important tool available to the Court to assist in its determination regards what Orders should be made concerning your children. The Judge is not obliged to accept recommendations made by the Family Report Writer but those recommendations may be persuasive. If you are not satisfied with any recommendations made by a Report Writer, you may take issue with them before the Court but before doing so, you need to be sure that there are justifiable grounds for doing so.

For some people, it is not possible to reach agreement with their former partners concerning their children and a Court action becomes necessary. It is important to understand the role of the family report. It is also import to ensure that any allegations that you may have, whether concerning mental health or drug issues affecting your former partner or going to the competence or otherwise of your former partner to provide appropriate care for your children, are properly evidenced, including appropriate independent third party evidence.

If you would like to learn more about arrangements for children, read here. Or, you can contact our experienced staff today to find out how we can help you in your family law matter.

Court Hearing

Tips for Appearing in Family Courts

Preparing for a family court hearing? It can be a stressful and emotionally-fulled time in the lead up to a court hearing. However, it’s important to know what to expect and how to prepare for your court hearing in order to achieve the best outcome.

Court Hearing

Preparing for a court hearing in family law.

This article is intended to help you whether you are representing yourself in a court hearing or are going to have legal representation. We have set out below some of the things that you should do preparing for Court as well as things to do and things to avoid in the courtroom.

Be Prepared

You will need to be sure that you have prepared and filed with the Court within the required time all of the documents that are required for your next hearing. If you are self representing, it will help you to find what you need when you are before the Court if your files are organised and clearly marked. Make sure too that you have a pen and note pad with you. If you have not been in a court before, it can help put you at your ease if you sit in a courtroom before your hearing so that you can see the court layout and understand something of the court process. Most court hearings are heard in open court so that you are permitted to enter the court.

What to wear in Court

The court is a formal place so you should dress accordingly. If you are a man, this does not mean having to wear a suit but long trousers, a shirt and appropriate shoes are a good idea. For women, a neat dress or long pants and shirt would be appropriate to wear.

Make other arrangements for your children

You should make arrangements for your children’s care for the day when you come to court. Court is not generally an appropriate place for children.

However, if as a result of a Court Order, your child needs to attend court to speak to a family consultant or judicial officer, you should check with court staff or through your solicitors in advance whether any child-care arrangements need to be made for the day.

Family and friends

You may wish to bring an adult family member or adult friend with you on the day in Court for support. There may be quite a bit of time that day spent waiting for your case to be called before the Judge or Registrar so it can be helpful to have some company. However, you should know that it is only your solicitors or if you are self represented, you, who may speak on your behalf in Court unless Court approval is obtained.

Arrive Early

We suggest that you arrive at Court at least 30 minutes before the time set down for the hearing and once there, locate the Court where your case will be heard.

There is generally a duty lawyer available (if you are eligible for assistance) to assist you on the day of your court hearing but you should be aware that their time is limited.

Inside the courtroom

The court officer or associate will generally appear outside the courtroom some time before the time that your case is set down for hearing. If you are self representing, before you enter the courtroom, you should present yourself to the court officer or associate and give them your name and let them know that you are self representing. If you have solicitors acting for you, they will inform the court officer or associate of your presence.

Once inside the courtroom, you will have to wait for your case to be called as there may be a number of cases listed on the same day. During this time, you should avoid talking whilst the Court is in session. You will need to stand each time that the Court commences or adjourns. The court officer or associate will signal the appropriate time to stand by saying ‘All rise’ or ‘Please stand’.

When your case is called and addressing the Court

When you hear the court officer or associate call your case, you should stand and sit in the place where your solicitors indicate behind them at the bar table.

If you are self representing, you should walk to the bar table as the court officer or associate directs. You will need to take your files and paperwork with you but be careful not to put any bags or cases on the bar table.

If you are self representing, you should stand whilst you and the other parties announce themselves. You announce yourself by stating your name and whether you are the applicant or respondent.
In the Family Court, either a judge or registrar will hear your case. In the Federal Circuit Court, a judge or for divorce hearings, a registrar, will hear your case. You should address a judge as ‘Your Honour’ and a registrar as ‘Registrar’.

Where you are self representing, you should stand each time that you are speaking or being spoken to in Court unless the Court directs you otherwise. You should be careful to speak clearly and politely and not to address any person other than the judge or registrar. You should not raise your voice and your face should be impartial no matter that the other party or his or her Counsel may make comments with which you do not agree.

When Orders are made and leaving the courtroom

The judicial officer will state the orders that are made and reasons given. Those orders will not be issued in hard copy until some time after the hearing so it is important if you are self representing that you write them down when they are being announced as well as reasons given. If you miss hearing part of the orders or are uncertain as to what was said, whilst you are still at the bar table, you should ask for the orders to be repeated once the judicial officer has finished speaking. If you do not understand any of the orders, you should ask the judicial officer to explain their meaning.
If a decision is reserved or held over for another time or date, you must attend court when the decision is handed down.

The Orders made will generally state the time and date for the next hearing if your case is ongoing. Once orders on a particular day are made, you can leave the bar table and the courtroom. If the Court is still in session after your matter is heard, as you leave the courtroom (and any time that you enter or leave the courtroom when the Court is in session), you should pause briefly at the door briefly and nod to the judicial officer. If your case is the last to be heard on the day, you should stand at the bar table while the judicial officer leaves the bench.

Personal Safety

If you have any worries about your safety, you should let the Court know at least two days in advance of any court date. The Court can assist with your safety when attending court. You can inform the Court by calling 1300 352 000 and speak with a Client Service Officer who will decide what arrangements are needed for your safety at Court. You must tell the Court in advance if there is a current family violence or protection order.
If you have concerns about your safety outside the Court or any questions about family violence, you should contact the police or seek legal advice about obtaining a Protection order.

If you’re looking for legal representation in a family court hearing or would like some legal advice, our family lawyers are happy to help. We even offer free 15 minute consultations over the phone.