The Effect of Domestic Violence on Property Settlement

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.