Varying arrangements for children which will suit both the parties and the children until the children are 18 years of age can be a very difficult exercise. Doing this successfully relies upon parent’s knowledge of the children (and the other party!) and the experience of the lawyers and/or the Court. While we make orders that deal with every changed circumstance we can think of, life can have other plans. So what do you do if you find that the Orders that were so carefully crafted simply no longer work for you and the children?

If you would like some practical legal advice and the options available to you, contact our experienced Brisbane child custody lawyers or our North Brisbane child custody lawyers. We can assist you in all areas of family law, including regards varying arrangements for children. We will advise you regards likely outcomes for your particular circumstances. This will allow you to make an informed decision and to retain control over how your family law issue is resolved. You are also welcome to read on for further information right now………

There are two (2) ways to change a final Court Order:

1. By returning to Court and formally making an application that you would like the Court to vary arrangements for children.
2. By entering into a parenting plan.

Varying arrangements for children by parenting plan

The Family Law Act 1975 (Cth) says at section 64D that any court Order that is made for arrangements for children, is automatically subject to any parenting plan agreed by the parents after the Order is made.

This means that your final Order does not need to have anything at all that says that you can agree to a different arrangement to enable you to change the parenting arrangements by parenting plan.

There is one circumstance when you cannot enter into a parenting plan varying arrangements for children:

The court may, in exceptional circumstances, include in a parenting order a provision that the parenting order, or a specified provision of the parenting order, may only be varied by a subsequent order of the court (and not by a parenting plan).

This means that the Court can specify in Orders for parenting arrangements that that one paragraph, or the Orders as a whole, are not able to be varied by a parenting plan. Examples of when this might be done include where it is needed to protect a child from physical or psychological harm, abuse, neglect or family violence, or where there is substantial evidence that one parent is likely going to use coercion or duress to get the other parent to agree to varying arrangements for children by parenting plan.

While this gives parents a bit of flexibility to modify final court orders for parenting arrangements as the children grow and circumstances change, remember that parenting plans are not enforceable by the Court, where a Court Order is. Always consider the effect that a parenting plan will have on your enforceable final Court Orders when varying arrangements for children.

For more information regarding parenting arrangements, see our page on child custody

Contactour family lawyers Brisbane and our family lawyers Brisbane Northside for advice advice about varying arrangements for children. We are able to advise you concerning any area of family law.  Our goal is to assist our clients to reach an amicable agreement with their former partner, whether concerning parenting arrangements for their children or family law property settlement. If however court action becomes necessary, we have the experience to represent you at Court.

The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice tailored to your particular circumstances from our Brisbane child custody lawyers or our child custody lawyers Brisbane Northside.

Life after separation and how that will look can be the great unknown, especially at a time when you may only be thinking about separating.

Maybe this is your situation or maybe life after separation is very real for you right now.

Are you about to separate or have you already separated from your former partner? It is going to be important that you make careful plans for both your children and for yourself. In this blog, our principal Lezah Gildea-Marega touches on arrangements that you can make for your children. Lezah also looks at the importance of your obtaining a legally binding property settlement with your former partner so that you can get on with life after separation.

Parenting

If you have children with your former partner, the quality of their life after separation is going to be directly impacted by the decisions that you and your former partner make for their care arrangements.  Remember that you do not have to have any legal agreement about those care arrangements. If you and your former partner are fairly amicable, you may prefer not to have anything in writing. Putting your agreement in writing signed off by you both can however help you both to ensure that you are effectively on the same page and that the important items have been covered. This kind of agreement is known as a parenting plan. It is not legally enforceable. It is however flexible, allowing  you and your former partner to make changes relatively easily to arrangements. This can be especially helpful as the children mature and their care needs may change.

For some people, however, life after separation, especially when it comes to having dealings with their former partner, can be stressful and full  of conflict.  If this is your situation, then it is likely going to be best for the children and for you that there is a parenting order in place. That order is issued by the family courts for the care arrangements for your children. If your former partner is in agreement, then that order may be issued as a consent order. You do not  have to actually go to court to obtain a consent order.   A final parenting order will remain in place until the child is 18 years of age unless it is varied or replaced.

Contact our experienced Brisbane child custody lawyers or our North Brisbane child custody lawyers. We can assist you in all areas of family law, including regards parenting arrangements and obtaining a final parenting order. You are also welcome to read on for further information  about family law property settlement……

Property Settlement

If you want to get on with life after separation, then obtain a property settlement with your former partner as soon as possible. Remember that until you obtain a legally binding property settlement, you and your former partner may continue to  have a claim in each other’s property.

Another important thing to realise is that the assets and liabilities that are to be divided are not those that you had at the time of separation. It is the assets and liabilities that you each hold and that you hold jointly at the time of the property settlement that are taken into account.   This means that if you delay making your final property settlement for some years, then it is all of the assets and liabilities then held that are to be considered in the final property settlement.

That can cause a major set back in getting on with life after separation.   The message then is to get the property settlement finalised as a priority.  Once it is settled, you can also more easily plan for your final future.

You can only obtain a legally binding property settlement by way of a court order or by entering into a binding financial agreement that complies with the requirements of the Family Law Act 1975 (Cth).  Most people will obtain a court order by consent- that is by agreement with their former partner- without ever going to court. It is only where your former partner will not reach any agreement with you that you will need to consider starting a court action seeking final property orders.

Contact our experienced Brisbane family lawyers or our North Brisbane family. We can assist you to resolve your family law issues and to obtain a binding family law property settlement. We will advise you regards likely outcomes for your particular circumstances. This will allow you to make an informed decision and to get on with your life after separation.

The information set out in this blog is not a substitute for legal advice.  LGM family lawyers recommend that you obtain advice tailored to your particular circumstances from our Brisbane family lawyers or our family lawyers Brisbane Northside.

Dividing property on separation is an important step for you to take. It is also something that, generally speaking, you should finalise as soon as possible.

There are a number of reasons to do that. An obvious one is that finalising property division will help put you in a place where you can plan for yourself financially. More importantly, dividing property is one element that will help you to get on with life!

However, a very important reason for dividing property as early as you can is that until you do that, with the benefit of first obtaining a court order or entering into a binding financial agreement, your former partner may continue to have a claim in your property.  The extent of that claim, especially regards any assets you acquire following separation, is going to depend upon a number of factors.

If you want to go to sleep at night though knowing that there is no real risk of a future claim by your former partner for property settlement, then you will need to obtain a court order dividing property on a final basis or enter into a binding financial agreement that complies with the requirements of the Family Law Act 1975 (Cth).

If you and your former partner can agree the division of property, then you can apply to the Family Court of Australia for issue of a consent order. That kind of order dividing property is issued through the Registry without your ever having to see the inside of a court.

If you can’t reach agreement, consider attending a mediation. If that doesn’t result in agreement, then you may have to start an action in the family courts seeking final property orders for dividing property.

Another important reason to obtain as soon as possible a legally binding property settlement by way of a court order (preferably for you, a consent order) or a binding financial agreement is that the assets and liabilities that are divided between you and your former partner are the assets and liabilities that exist at the time that you make the property settlement and not those that existed at the time of your separation.

Contact our family lawyers Brisbane and our family lawyers Brisbane Northside for advice about any family law issue, whether to resolve property division with your former partner or parenting issues. Our experienced family lawyers can also assist you with domestic violence issues. We aim to assist you to reach agreement with your former partner without going to Court. If however court action is necessary, we are ready to represent you effectively at Court.

The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice tailored to your particular circumstances from LGM family lawyers Brisbane.

Inheritance received during a relationship? Find out how family law may treat it

An inheritance received during a relationship can often become a major issue in reaching a family law property settlement.

An inheritance received by one party to the relationship may be treated as a contribution made by that party.

Any assets or cash received as an inheritance may however instead be quarantined from other assets to be divided between the parties and treated as available only to the party who received the inheritance. If this is the approach taken, it may still be taken into account that that party has those quarantined assets or cash when considering any adjustments to be made in the property settlement in favour of the other party.

Contact our family lawyers Brisbane and our family lawyers Brisbane Northside for advice about any inheritance received or other property settlement issues or parenting issues. We aim to assist our clients to reach agreement with their former partner without going to Court. If however court action is necessary, we are ready to represent you effectively at Court.

Just how an inheritance received by a party will be treated in a family law property settlement will depend upon the facts of the case and the circumstances of the inheritance.

This point was emphasised in the case of Bishop & Bishop where the Full Court agreed in appeal proceedings that the trial judge was correct in finding that the sum of $250,000 being the wife’s inheritance received a year prior to the parties separation should be excluded from the property pool to be divided. The inheritance monies had been placed in a trust and were never mixed with any joint asset or asset of the husband. This meant that it could easily be separated from all of the other assets and effectively quarantined.

When an inheritance is quarantined like this, it is not taken into account as part of the asset pool to be divided between parties. However, it may still be taken into account to determine what each party should receive from that asset pool. The fact that one of the parties may have an inheritance received and available to them may be a reason to allow the other party an adjustment in their favour from the asset pool that does not include the inheritance.

That other party may then get some percentage increase interest in the asset pool that does not include the inheritance to take into account that the first party has the inheritance assets available to them.

However, there may be other adjustments that need to be made that will affect the final outcome in a property settlement. By way of example, what happens if our hypothetical wife who has an inheritance of $250,000 which is easily quarantined also has primary care of very young children, limited employment prospects, a very modest income compared to her husband who has a significant income and limited weekend time with the children? In this situation, the husband may not receive any increased percentage of the property pool to offset the wife’s inheritance.

The case of Peabody & Peabody saw the court taking a similar approach to Bishop. In Peabody the inheritance received by the husband was $750,000 and was received some 3 years after separating from the wife. The wife had made no contribution to that money. It was therefore quarantined from the property pool which was to be divided and treated as a financial resource available to the husband.

In the case of Nikas & Anthis , the inheritance received was an asset instead of a cash sum. The  husband and wife had lived in the wife’s mother’s house for 11.5 years rent free and the wife eventually inherited the house from her mother. The court treated the house as a contribution by the wife, as the husband had made minimal contribution to the property.

These cases can be contrasted with Elgin & Elgin where it was found that a $1.3 million inheritance received 10 years before separation where there had been a marriage of 40 years had no special weight and the property pool worth some $44 million was divided equally.

There is no one rule which says that any inheritance received during a relationship should be quarantined and excluded from the property pool to be divided. Before determining how an inheritance should be treated it is important to assess all the facts of your matter.

The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice tailored to your particular circumstances from LGM family lawyers Brisbane.

COVID-19 Parenting Orders

COVID-19 is leaving parents who have parenting orders in a difficult situation.  With the increasing number of restrictions on our activities and government urging us to remain home, some families are finding that their parenting arrangements may no longer be workable.

Some of the many questions that arise concerning coronavirus and parenting orders include:

• Must I send my child to spend time with the other parent if I am worried that the other person may have COVID-19?
• If the other parent is showing symptoms of COVID-19, do I have to send my child to spend time with them?
• My children and I are living with my elderly parent who suffers from a heart condition and other ailments. I am worried about the children spending time with the other parent who may have some of the CVID-19 symptoms and then putting my parent at risk of infection.  Can I withhold the children from spending time with the other parent?
• The contact centre where the children normally visit with the other parent is now closed due to coronavirus.  What are my obligations now? Do I have to arrange for time supervised by another adult?

Contact our family lawyers Brisbane and our family lawyers Brisbane Northside for advice about parenting issues, including during COVID-19. We can also assist with you with family law property settlement, spousal maintenance issues and domestic violence issues. For information right now, you are welcome to read on…….

Your general obligation

Generally, regardless of COVID-19 parenting orders impose obligations with which you must comply.

Parents and carers are required to act in the best interests of children, which includes taking steps to ensure their safety and wellbeing. If a situation arises that make complying with court orders difficult or impossible, whether as a result of coronavirus or some other cause, the parents should try to find a practical solution to the problem if it is safe to do that.

Message from the Chief Justice of the Family Court

Chief Justice Alstergen of the Family Courts released a statement in late March 2020 which recognizes  that the COVID-19 is having an enormous impact on families and provides some guidance for parents concerned about how they comply with parenting orders during the pandemic.

Here are some of the main points in that message relating to COVID-19 and parenting orders:

1. Parents and carers must continue to make decisions which are in the children’s best interest to ensure their safety and wellbeing.
2. Parents are expected to comply with Court Orders in relation to parenting arrangements, including making the children available to spend time with each parent as the Court Orders provide.
3. If you find yourself in the position where following the Orders to the letter just isn’t possible anymore or you have genuine safety concerns due to either the other parent having COVID-19 or having been exposed to COVID-19:
   1. If it is safe for you, you should communicate with the other parent about whether it is possible to comply with the Orders and if not, whether you might be able to work out another solution. It is important to approach these discussions sensibly and reasonably and to remember that the other parent may have genuine concerns which need to be addressed. This may be a risk of infection for an elderly parent or vulnerable family member living with a parent.
   2. If you do reach an agreement, remember to get it in writing where possible! This will include via email, WhatsApp or text. The Orders apply unless you both agree to a different arrangement in writing. You may later need to be able to show evidence of what was agreed.
   3. If in doubt about how COVID-19 impacts your parenting obligations, get advice. There are dispute resolution services to assist you in finding a temporary arrangement which works for everyone, community legal advice services which operate by phone, and family lawyers happy to assist remotely by telephone or videoconference. At LGM Family Law, we’re still open!
   4. What if you can’t agree? If negotiations aren’t safe for you or if you are just unable to agree, then the children are to be kept safe until arrangements can be resolved. You must also be sure to maintain the children’s relationship with the other parent during COVID-19 in a safe way, and as closely to the Orders as you can without putting yourself or the children at risk of harm. You can rely on technology here – use social media and videoconferencing to keep the children in contact with the other parent, and don’t forget that telephone calls are also an option.
   5. If you cannot agree with the other parent and continue to have real concerns, you can apply to the Court electronically by efiling an Application.
   6. Always remember to act reasonably. The Court will look to whether you have acted reasonably and whether you have a reasonable excuse for not complying with the Orders.
   7. Where strict compliance with parenting orders is difficult or impossible due to COVID-19 related issues, you should ensure that the spirit of the orders are observed when seeking to make alternative arrangements with the other parent.
   8. If you have any immediate concerns about your physical safety or the physical safety of the children or there is family violence against either you or the children, do not hesitate to contact Police for assistance.

Breaching parenting orders

If you fail to comply with parenting orders, the other parent may bring an application in the family courts for contravention of orders.

The court accepts reasonable excuses for contravention of court orders where you can show:

The Family Courts are is still open and if you need to make application to the court, the court will still hear the matter to ensure the safety of yourself and your children. However, depending upon the urgency of a matter, your hearing may be adjourned or heard by telephone during COVID-19.

Remember that your safety and the safety of your children is paramount and that you have to make decisions in your children’s best interests.

Contact our family lawyers Brisbane and our family lawyers Brisbane Northside for advice about any area of family law, including parenting issues during COVID-19. Our goal is to assist our clients to reach agreement with their former partner without going to Court. If however court action is necessary, we are ready to represent you effectively at Court. Ph. 07 3506 3651

The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice tailored to your particular circumstances from LGM family lawyers Brisbane.

The discrete property list in the Federal Circuit Court of Australia is helping separated parties with a modest property pool who cannot reach agreement by consent. Seeking assistance from the family courts, particularly where the property pool is fairly modest, can be a lengthy process that is difficult for parties to work through.

There are some instances though, where parties need the intervention of an order from the Court to make sure their matter keeps moving towards resolution.

For parties in an increasing number of cities around Australia, the Federal Circuit Court  of Australia is rolling out the ‘Discrete Property List’.

The discrete property list is an initiative designed for parties who seek only property orders and who have a total combined asset pool of a net value of $500,000 or less including their superannuation.

If you would like some practical legal advice and the options available to you, contact our experienced Brisbane Family Lawyers or our North Brisbane family lawyers. We can assist you in all areas of family law, including regards family law property settlement, how the discrete property list operates, maintenance claims and parenting arrangements. We will advise you regards likely outcomes for your particular circumstances. This will allow you to make an informed decision and to retain control over how your family law issue is resolved. You are also welcome to read on for further information right now………

While any urgent interim matters, such as the urgent sale of a house to liquidate funds, will still be heard by a Judge, matters on the Discrete Property List are managed by a Registrar of the Federal Circuit Court of Australia.

The Discrete Property List will aim to ensure that:

1. Response material is filed and if necessary, that an amended initiating application is filed swiftly where the orders being sought have not been properly particularised;

2. Both parties have exchanged all documents disclosing their financial position to each other;

3. Experts are appointed to value any properties or items where the parties cannot agree on a value for those properties or items;

4. The parties are referred to dispute resolution if all of the above has been done.

If parties find themselves in the Discrete Property List, they need to be careful to take all steps to follow the Registrar’s time frames, as the Registrar has indicated that adjournments will be few and far between. Your matter will only remain on the Discrete Property List for around 90 days before being transferred into a Judge’s list for management.

The intention of the Court is that use of the discrete property list in the family court will assist with resolving disputes while minimising delay and expense for the parties.

Contact our family lawyers Brisbane and our family lawyers Brisbane Northside for advice concerning how you get your matter on to the discrete property list and the documents that need to be filed in the court seeking a family law property settlement. We have the experience to assist you with any area of family law, including property settlement and parenting arrangements without going to Court. If however court action is necessary, we are ready to represent you effectively at Court.

The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice tailored to your particular circumstances from LGM family lawyers Brisbane.

Christmas following separation can be a difficult time unless you have arrangements in place for your children.

The first thing to know about parenting arrangements for Christmas or any time is that you do not have to have any formal agreement for parenting arrangements after you separate.

Many people find it better though to have some agreement in writing for all parenting arrangements, including for Christmas following separation. A parenting plan will help you ensure that you and your former partner have agreed important arrangements such as the time that the children spend with each of you following separation and when each of you may call the children when they are spending time with the other parent.  However, a parenting plan is not legally enforceable.

You will need a court order if you are wanting arrangements for the children that you can enforce. An order can be obtained with the consent of both parties without the need to actually go to court.  If there is no agreement, then you would need to obtain orders from the court where a judge makes the final decision.

Arrangements for Christmas following separation would need to be made soon if you are wanting to obtain a consent order from the family court.

If you are not needing a parenting court order, we recommend writing to your former partner with your proposal for parenting arrangements for Christmas. It is important for your children that you and your former partner plan ahead so that the children can know what to expect, especially at Christmas.

Contact our child custody lawyers Brisbane and our child custody lawyers Brisbane Northside for advice concerning any area of family law, whether for parenting arrangements or for property division. We aim to assist our clients to reach agreement with their former partner without going to Court. If however court action is necessary, we have the experience to represent you at Court.

The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice tailored to your particular circumstances from LGM family lawyers Brisbane.

You are welcome to take a look at our youtube channel for more advice on this subject.

Family Court Crisis and looking for ways to avoid it

The crisis in the family court is all too apparent to people who involved in family law litigation.

It can take some 6 weeks or longer after a person filed their application in the family court before obtaining their first court date. Long delays occur for parties to obtain trial dates (sometimes up to two years). The family court crisis continues to reveal itself as some parties, after being given a trial date/s, find that their matter is adjourned from those dates to later dates.  After the trial takes place, it can then be months- in some cases, years- before the judge delivers his or her final decision.

Contact our experienced Brisbane family lawyers or our North Brisbane family lawyers for assistance resolving your family law matter. We look for ways to do that without the need to go to court. If court action does become necessary, we have the experience to represent you. We will however still seek for you to resolve your family law matter to bring the court action to an end as soon as possible. You are also welcome to read on for further information right now………

The family court crisis has come to the fore recently with reports in newspapers of these significant delays. Some of those articles have named judges who have not delivered their judgements after a significant lapse of time from the trial dates.

It would be wrong however to assume that the judges are causing these significant delays and this crisis in the family court.  Justice Alstergren, the Chief Justice of the Family Court and Federal Circuit Court of Australia has recently been reported as saying that judges will often work through their holidays, sitting in court during judgement writing days and days that they should have off so that they can get matters done for parties coming before them. They are desperate to try and assist people (Proctor, November 2019).

The fact is that there is an insufficient number of judges to handle the workload which is only increasing, in both family law and other areas that are heard by the Federal Circuit Court of Australia. That however does not fully explain the family court crisis and the resultant delays being experienced in the family courts. Part of it is caused by the parties themselves in engaging in protracted litigation and some of it is caused by non-compliance with court orders.   There are also systemic failures which Justice Alstergren is striving to address.

In the meantime, what steps can you take to resolve your family law matter and avoid this family court crisis? What can you do if your former partner will not agree a just division of property or arrangements for your children which you consider to be in their best interests.   Whether you are involved in a court proceeding or not, some measures you can consider are mediation or arbitration.

If you and your former partner choose arbitration, the decision of the arbitrator will be final and binding upon you. If you choose mediation, then the outcome will remain more squarely within the control of both you and your former partner. Although parties are not bound by a decision reached at mediation, many parties will settle at or soon after a mediation. They then have orders issued by the family court which are then binding upon both of them.

Contact our family lawyers Brisbane and our family lawyers Brisbane Northside for advice and assistance towards resolving and finalising your family law matter whether for family law property settlement, parenting arrangements or other issues.  We want to see you free to get on with living!

The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice tailored to your particular circumstances from LGM family lawyers Brisbane.

Family Dispute Resolution Certificate – when it is not required to file family law proceedings

For some people, being told that they need to get a family dispute resolution certificate, also known as a Section 60I Certificate, before filing parenting proceedings can seem impractical and burdensome.

You will generally have to have that certificate before you may start proceedings the family courts where you want to obtain parenting orders.

If you would like some practical legal advice and the options available to you, contact our experienced Brisbane Family Lawyers or our North Brisbane family lawyers. We can assist you in all areas of family law, including parenting arrangements, family law property settlement and maintenance claims. We will advise you about available outcomes for your particular circumstances. This will allow you to make an informed decision and to retain control over how your family law issue is resolved. You are also welcome to read on for further information right now………

Getting a Family Dispute Resolution Certificate

You will be issued with that certificate (ie., a Section 60I Certificate) if:

• The other party refuses to attend family dispute resolution;
• The Practitioner/Mediator considers that it is not appropriate to conduct family dispute resolution (i.e. where there is child abuse or family violence);
• You have attended at family dispute resolution and have both made a genuine effort to settle your parenting matter;
• You have attended at family dispute resolution and the other party has not made a genuine effort to settle your parenting matter; or
• You have attended at family dispute resolution and the Practitioner/Mediator has formed the view once commencing dispute resolution that it would not be appropriate to continue to hold discussions.

The issue of a Section 60I Certificate will in many circumstances be a matter for the Practitioner/Mediator to determine whether it is appropriate in all the circumstances to conduct family dispute resolution.

The Exceptions

There are some circumstances where you will be allowed to commence Court proceedings in relation to parenting issues without a family dispute resolution certificate (ie., a Section 60I certificate), including:

• If you have resolved your parenting issues and are filing an Application for Consent Orders, then you do not need a family dispute resolution certificate;
• Where there are reasonable grounds to believe that there has been abuse to the child/ren by one of the parties;
• Where there are reasonable grounds to believe that there is a risk of the child/ren suffering abuse by one of the parties if there is a delay in applying to the Court for Orders;
• Where there are reasonable grounds to believe that there has been family violence by one party;
• Where there are reasonable grounds to believe that there is a risk of family violence being committed by one of the parties;
• Where there are urgent circumstances;
• Where one of the parties is unable to meaningfully engage in family dispute resolution because of their physical remoteness or other incapacity.

Whilst these grounds can seem quite broad, the reality is that it can sometimes be difficult, in what can often be a very short timeframe, to provide the Court with the evidence that is needed to show that there are reasonable grounds to believe that any of these risk factors exist.

For example, in a recent child relocation case, Conlon [2019] FCCA 2195 (13 August 2019), the parties had a five (5) month old baby. There was a parenting dispute but before bringing a court action, the Father had not obtained a family dispute resolution certificate. The Father returned from a weekend away visiting his parents to find that the Mother and baby have moved to a town 2.5 hours away to live with the Mother’s parents. The Father urgently commenced Court proceedings asking that the Court make Orders for the baby to live with the Mother in the town they had left if the Mother returned with the baby. Alternatively, the Father asked the Court to make orders for the baby to be returned to that town for the Father to have primary care.

When the Court heard the matter, the Father was asked why he hadn’t sought family dispute resolution. The Father’s Solicitor responded by saying ‘do you have any idea how long that takes?’ The Father had not given any evidence about the time frames for the issuing of a family dispute resolution certificate. There was also no evidence of family violence or risk to the child.

The Court said that, by way of example, family dispute resolution (and obtaining a Section 60I certificate) may not be appropriate where there is family violence, drug use or alcoholism. Other examples included where one parent has a personality disorder or serious mental illness or where one parent simply has wildly unreasonable expectations. For example, where a parent is staunchly of the view that an equal time arrangement is necessary for a very young child.

The Court in Conlon found that it would be entirely appropriate for the Father to have attempted family dispute resolution. The Court also stressed the importance of making sure that parties have the chance to decide parenting arrangements for their children. The Court noted that in most cases, parents are the best people to make a decision about what will be the best arrangements for their children.

Contact our Brisbane child custody lawyers or our North Brisbane child custody lawyers if you are unsure whether or not you need to obtain a family dispute resolution certificate or whether you may commence proceedings without first getting a family dispute resolution certificate. We will assist you to put in place a plan for resolving your parenting dispute.

Our Brisbane family lawyers have the experience to advise you concerning any family law issues. Our goal is to assist our clients to reach agreement with their former partner without going to Court. If however court action is necessary, we are ready to represent you effectively at Court.

The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice tailored to your particular circumstances from LGM family lawyers Brisbane.

How to bind a third party in family law proceedings.

Generally speaking, the Federal Circuit Court and the Family Court make orders that only bind the parties to the proceedings. However, the courts have the power  under section 90AE of the Family Law Act 1975 (Cth) (FLA) in relation to proceedings between married parties to make a property order or under section 90AF, FLA to issue an injunction, to bind a third party and to alter their property interests. An injunction can restrain or prevent a person from acting.

A third party is broadly defined by section 4 FLA as being any person who is not a party to proceedings. Where a person files proceedings against their former spouse, any other person who is involved in those proceedings is a third party.

A third party may include banks, children and corporate entities and trusts (for example, a family trust).

Contact our family lawyers Brisbane and our family lawyers Brisbane Northside for advice regards how to obtain an order binding third parties or regards any area of family law.  We work to help you resolve your family law issues without the need to go to court. This is our priority but if court action is necessary, we are ready to represent you effectively at Court. For further information on an order to bind a third party, you are welcome to read on…..

Some common examples of when you need to bind a third party in family law proceedings are:

1. When you and your spouse have agreed to final property orders and you expect to receive a portion of your spouse’s superannuation, you need to bind a third party, in this case the superannuation trustee, to move funds from one super account to another.
2. When the Court appoints a trustee to sell a property, the Court can bind a third party, ie that  trustee, by making Orders regarding the process which they must follow to sell that house.
3. When one party is to receive as part of their property settlement assets that are controlled by an entity such as a company or family trust.
4. When a third party solicitor, real estate agent or any other person holds funds on behalf of both parties, usually following the sale of assets, which are to be disbursed to the parties in certain proportions on final property settlement.

The legislation tells us that is it also possible to have creditors be substituted for one or both of the parties in proceedings and for the Courts to re-distribute the proportions of debt each party owes to a creditor.

However, the Court may only make an order binding a third party if certain requirements are met,  including the following:

1. whether such an Order is reasonably necessary or reasonably appropriate to effect a division of property between parties to a marriage;
2. if the order concerns a debt of the parties to a marriage, it is not foreseeable at the time that the order is made that to make the order would result in the debt not being paid in full;
3. whether the third party has been provided with procedural fairness;
4. whether the Order would be just and equitable;
5. the impact of the Order in relation to taxation and social security;
6. the administration cost of the Order; and
7. the capacity of the third party to comply with the Order.

The Court’s powers to bind third parties in family law proceedings are worth keeping in mind when negotiating. The Court’s powers in this area can open up more creative solutions for the preservation and re-allocation of assets and liabilities between you and your former partner than you may have initially considered.  However, it is important to first obtain legal advice as to whether the requirements for the Court to make an order binding a third party will be met in your case. If not, the order will not be made.

Contact our experienced Brisbane Family Lawyers or our North Brisbane family lawyers. We can assist you in all areas of family law, including regards family law property settlement, maintenance claims and parenting arrangements.

The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice tailored to your particular circumstances from LGM family lawyers Brisbane.

Family law expert evidence

It may seem time consuming and expensive to have formal valuations conducted to get family law expert evidence. It can mean the world of difference though to your outcome for property settlement. 

If you would like some practical legal advice including options available to you, contact our experienced Brisbane Family Lawyers or our  North Brisbane family lawyers. We can assist you in all areas of family law, including family law property settlement, maintenance claims and parenting arrangements. We will advise you regards likely outcomes for your particular circumstances so that you can make an informed decision and retain control over how your family law issue is resolved. You are also welcome to read on for further information right now………

The recent Federal Circuit Court decision in Isaacson [2019] FCCA 522 emphasises the importance of making sure that your “expert” is an expert in fact before relying on them to give family law expert evidence at trial.

In this case, the parties were unable to agree on the value of the Husband’s book collection which he had built up throughout the parties’ marriage. The Husband was wanting to keep it in the property settlement.

At trial, the Husband put before the Court an affidavit of a gentleman who stated in his affidavit that he was the owner of a store selling used books and collectibles. He stated that  he had been selling and grading used books for almost 23 years.

The used bookstore owner in this case may have been quite accurate in his estimation of the value of the Husband’s book collection. However, there was not enough evidence of his qualifications to value the collection given to the Court.

Family law expert evidence must be given by a person who is qualified to give an opinion based upon their training, study or experience, with any opinion based wholly or substantially upon their expert knowledge. The issue in Isaacson’s case was that there was no evidence produced about whether the book seller had any training or qualifications which would make him a specialist in valuing used books.

Experience is certainly a consideration of the Court when establishing whether a person is qualified to give family law expert evidence. However, our used book seller in Isaacson’s case at no stage gave the court any evidence to show that the value he gave for the Husband’s book collection was based upon his experience or any training and that the dollar figure he quoted wasn’t plucked from thin air as you or I may do to value a book collection.

Your family law expert evidence needs to be produced by an expert – not somebody who merely works in the field of say, bookselling, but instead someone who has the training, study and experience to apply their expert knowledge and give an informed expert opinion. More than that though, it pays to make sure that if your family law expert is really an expert, that they tell the Court that in their affidavit material.

When the Court in Isaacson’s case turned to the Wife for her to produce her book valuation expert for cross examination, the Court was advised that the Wife’s family law expert was not present in Australia at the time of the trial.

As there were serious problems with the quality and admissibility of both parties’ expert evidence, the Court decided that the most appropriate solution was to Order that the Husband’s book collection be sold and that the proceeds of sale be divided equally between the parties. The percentage division of the money from the sale of the books was not decided based on expert evidence but on the basis of contributions factors in this matter, namely the Wife’s financial contribution to buying the books.

The Court in Isaacson’s case took this view because it was the only way that the Court had of ensuring that the value given to the books was accurate since there was no family law expert evidence in fact provided – the sale price of the books would be their value.

Contact our family lawyers Brisbane or family lawyers Brisbane Northside for advice concerning your family law issues. Our goal is to assist you to reach an agreement with your former partner without the need to go to Court. If however court action becomes necessary, we have the experience to represent you at Court.

The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice tailored to your particular circumstances from LGM family lawyers Brisbane.

Contravention application

A contravention application made by a party in a family court matter arises where one party is claiming that the other party is in breach of final Orders. When parties agree final consent orders setting down arrangements for the care of their children or instead go to trial asking the family court to make orders, it can often be very difficult to predict what will or will not work for their family in the future. As life changes and children grow up, we can find that the Orders made some years prior don’t suit one or both parties any longer.

In cases where one party decides to deviate from Orders without the consent of the Court or the other party, this may result in the other party filing a contravention application, to enforce the terms of an Order which are being breached.

Contact our child custody lawyers Brisbane and our child custody lawyers Brisbane Northside for advice if
you are worried about a contravention application being made against you or if you wish to make such an application. We can assist you in any area of family law.  Our goal is to assist you to reach agreement with your former partner without going to Court. If however court action is necessary, we are ready to represent you effectively at Court. You are also welcome to read on……..

It pays to think carefully before filing a contravention application. The other party may just take the opportunity to apply to vary existing parenting Orders. As recently happened in the case of Maddax & Danner [2019] FamCAFC 38, just because you have filed a contravention application first in time, it doesn’t mean that your application will be prioritised and resolved by the Court before an application to vary parenting orders is  determined.

In that case, the parties had a long standing history of keeping the child from spending time with the other parent which spanned a little over four years and saw final Orders for the care of the child made in both Germany and Australia.

Recently this case was once again brought before the Australian Family Courts when the Father filed a contravention application against the mother, accusing her of failing to make the child available to spend face to face time with the Father under existing parenting Orders.

The Mother responded by filing an application to vary the existing Orders, stating that in reality, the child hadn’t seen the Father in a year and a half because the Father had remained in Germany while the child was living in Australia. The Mother claimed that that the final parenting Orders should be varied to cease all unsupervised contact between the Father and the child. The Mother claimed to be concerned that the Father may  otherwise disappear with the child.

The Court ordered a Family Report be obtained including recommendations as to what arrangements would be most appropriate for the child. The Court adjourned both applications and suspended the previous parenting Order which gave the Father face to face contact with the child.

The Father appealed this interim Order of the Court. Amongst other grounds, the Father argued that the Court needed to hear his contravention application before hearing the Mother’s application to vary the parenting Orders.

It is worth noting here that a contravention application can lead to the enforcement of Orders or in grave circumstances a penalty being imposed on the breaching party.

On appeal the Family Court found that the law was clear in this matter. Where previously the Father would have been correct in asserting that his contravention application needed to be dealt with before the Court could entertain the Mother application to vary, this is no longer the case following amendments to the Family Law Act 1975 (Cth).

The Court said that the judge was correct in her decision to send the matter to a Family Report before substantively dealing with the contravention application for a number of reasons. This included that judges are not required to follow a strict process in children’s matters and have the ability to decide what issues require further investigation and which issues are dealt with first. The overriding obligation of the Court is to make decisions in the child’s best interest.

The Court also noted that the judge had the ability to review and vary children’s Orders on a contravention application. The Court could use this power whether or not there was any finding of an actual contravention. The judge’s ability to review the existing Orders did not create an obligation for Her Honour to first determine whether the Mother had actually breached the existing Orders, as the ability to review the Orders came from the mere application being before the Court, not from a finding that the Orders had been breached.

In summary, just because you file a contravention application before the other party files an application to vary, it doesn’t mean that your application will necessarily be dealt with before the application to vary.

If you would like some practical legal advice including regards options available to you, contact our experienced Brisbane Family Lawyers or our North Brisbane family lawyers. We can assist you in all areas of family law, including regards family law property settlement, maintenance claims and parenting arrangements. We will advise you regards likely outcomes for your particular circumstances. This will allow you to make an informed decision and to retain control over how your family law issue is resolved

The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice tailored to your particular circumstances from LGM family lawyers Brisbane.

Parentage disputes can figure strongly in disputes about a person’s liability to pay child support.

It sometime happens that where a child support assessment is issued against a person, that person then disputes that he is a parent of the child; parentage is in dispute.

Under s107(1) of the Child Support (Assessment) Act 1989 (Cth) (“CSAA”)), where effectively a child support assessment has been issued, an application may be made for a declaration that a person should not be assessed to pay child support due to a parentage dispute.

Child support as assessed is still payable after such an application is made but the amount paid is likely to be held by the Registrar until a decision is made as to whether or not the declaration should be made.

Contact our child custody lawyers Brisbane and our child custody lawyers Brisbane Northside for advice concerning any child support or parentage issues. We advise in all areas of family law and provide complimentary advice during your initial call with one of our family lawyers. You are also welcome to read on…..

Under section 69VA of the Family Law Act 1975 (Cth) (“FLA”), the family courts have power to determine a parentage dispute for the purposes of proceedings and the court may also issue a declaration of parentage that is conclusive evidence of parentage under Commonwealth laws. That declaration can only be sought if parentage is in issue in proceedings before the family courts.

However, if an application for a declaration has been made under section 107(1) of CSSA, this will be enough to allow the family courts to make a declaration under that section 69VA FLA and for a person to seek orders for parentage testing in order to settle a parentage dispute.

The Court requires that any DNA testing is carried out in accordance with Family Law regulations at an approved laboratory.

If a party refuses to participate in DNA testing or to take a child for testing where testing has been ordered, the Court may draw inferences from this refusal that are just and equitable and still make Orders determining a parentage dispute.

Effect of a declaration pursuant to s107 Child Support (Assessment) Act 1989

If a declaration is made that a person should not be assessed to pay child support as parentage is not established, the application for child support that had originally been made is treated as if it was never accepted by the child support agency.

Repayment of child support paid to a parent by a person where that a parentage dispute is settled and that person is found not to be the father – s143 Family Law act 1975 (Cth)

If the Court makes a declaration pursuant to s107 Child Support (Assessment) Act 1989 that a person should not have paid child support for a child as parentage is not established, the Court must then consider making an Order pursuant to s143  Child Support (Assessment) Act 1989 (Cth) for repayment by the person who received those child support payments of all or part of those monies.

The Court may make any such orders as it considers just and equitable for the purposes of adjusting, or giving effect to, the rights of the parties and of the child concerned, when determining how much money, if any, a person should  repay to the applicant who is found not to be the father in a parentage dispute.

When determining what is just and equitable, the Court will have regard to certain factors including:

• whether the applicant for the declaration or the other person who received the payments knew or suspected, or should reasonably have known or suspected, that the applicant was not a parent of the child;
• whether the applicant or that other person engaged in any conduct (by act or omission) that directly or indirectly resulted in the application for administrative assessment of child support for the child being accepted by the Registrar;
• whether there was any delay by the applicant in applying for a finding by a Court that he is not the child’s parent;
• whether there was any delay by the applicant in applying under Section 107 for a declaration once he knew, or should reasonably have known, that he was not a parent of the child;
• whether there is any other child support that is, or may become, payable to the other person for the child by another person who is a parent of the child;
• the relationship between the applicant and the child; and
• the financial circumstances of both the applicant and the other person.

Contact our family lawyers Brisbane or family lawyers Brisbane Northside for advice concerning a parentage dispute or any other family law issues, whether regards child support, child custody or property settlement. We are able to advise you concerning any area of family law.  We aim to assist  our clients to reach agreement with their former partner  without the need to go to Court. If however court action becomes necessary, we have the experience to represent you at Court.

The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice tailored to your particular circumstances from LGM family lawyers Brisbane.

A recovery order in family law proceedings may be sought in appropriate cases.

On or around separation, it sometimes happens that one parent may decide to pack their belongings and move away with their children to a place where they can make a fresh start. The parent may want to do that for a number of reasons. Where young children are involved, a parent with no extended family support where the family had been living before separation may wish to move with the children to live close to his or her parents or siblings. In other situations, a parent may have a new relationship with someone who lives in another city. A parent may also relocate with children to another place where family violence or child abuse has been a factor. A parent relocating with children may consider that the children are at risk from the other parent in remaining where they have been living. Where a parent relocates children without the consent of the other parent, that other parent may make an application to the family court on an urgent basis seeking a recovery order.

Our Brisbane family lawyers can advise you about the strength of your case to obtain a recovery order. Call us on 07 3506 3651 for complimentary initial advice. You are also welcome to read on..

What is a recovery order?

When your child is relocated without your consent, whether or not you have already got Court Orders in place for the child’s care arrangements, the Family Law Act 1975 (Cth) gives the Court the power to make a recovery order for your  child to be be returned to the care
of:

• a parent; or
• any person with an order in place for the child to live with, spend time with or communicate with; or
• and person who has parental responsibility for the child.

A recovery order can be a useful tool for parents and caregivers as it offers dual protections, enabling the Police to become
involved to find the child and place that child in another parent or person’s care, while at the same time offering the ability to obtain an order preventing a parent or other person from again collecting and withholding the child.

Who can apply?

A recovery order can be requested by any of the people listed above, but a grandparent or any other person who is concerned with the care, welfare and development of the child may also apply to the Court for relief.

How do you apply?

If you have already applied to the Court for parenting  orders, then you will file an Application in a Case seeking a recovery order.

If you don’t already have an Application for parenting orders before the Court, then you should file an Application which asks the Court to make both parenting orders and a recovery order.

You will need to file an affidavit to support the recovery order that you are asking the Court to make.

You should know however that Court has discretion whether to grant a recovery order. The order is not made as of right. The Court will determine what is in the best interests of the child and as part of that consideration,whether the child should be returned to the original place and what living arrangements should exit for the child.

Contact us! Our family lawyers Brisbane or family lawyers Brisbane Northside for advice concerning your prospect of obtaining a recovery order or regards any family law issues, including family law property settlement.   Our goal is to assist our clients to reach an amicable agreement with their former partner without the need to go to Court. If however court action becomes necessary, we have the experience to represent you at Court.

The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice tailored to your particular circumstances from LGM family lawyers Brisbane.

If a person makes substantial contributions during a de facto relationship and the relationship comes to an end fairly quickly, that person may still have a claim for property settlement against the former partner depending upon the effect on that person if orders for final property division were not made.

Under the Family Law Act 1975 (Cth), a court may make an order for division of property only in there has been a de facto relationship of at least 2 years’ duration or if there is a child of the relationship. Even neither of those requirements is met, a court may still make a final property order if the party who applies to the court for final orders for property division made substantial contributions and a failure of the court to make an order for final property division would result in serious injustice to the applicant.

The contributions that are considered are direct or indirect financial contributions to the acquisition, conservation or improvement of property belonging to either or both of the parties or non- financial contributions.   Contributions
made directly or indirectly by a party to the welfare of the family and as homemaker or parent are also considered.

Contact us! Our family lawyers Brisbane or family lawyers Brisbane Northside for advice regards your de facto relationship and if you were with your former partner for less than 2 years or if you did not have children together, whether contributions that you have made will be considered “substantial contributions” at law. We can help you resolve any family law issues, whether for family law property settlement, parenting arrangements or other family law areas. You are also welcome to read on……

In Adesso & Payton [2019], before the Federal Circuit Court of Australia, the applicant (Ms. A) sought a declaration that there was a de facto relationship within the meaning of the Family Law Act 1975 (Cth).  Ms A needed that declaration so that she could bring her case in the family courts seeking final orders for property settlement. Ms A and Mr P had been in a de facto relationship from August 2016 until December 2017. Although Ms A had a child X from a former relationship, she and Mr P did not have children together.

Unfortunately for Ms A however, the court found that there were no grounds for the court to make the declaration that she sought.  She had not made substantial contributions and the court did not consider that there would be a serious injustice to her where no property orders were made.

The court relied upon a previous case to say that substantial contributions must be something more than usual or ordinary contributions.

Whilst Ms A had made contributions such as towards the gardening of a property and domestic duties, in the context of a short relationship where there was no child of the relationship, the court did not think that her contributions could be considered anything other than ordinary and usual. They could not be considered substantial contributions.

As the court did not consider that Ms A would succeed in obtaining an order for final property division even if she were allowed to proceed with her claim,  neither did the court consider that there was any serious injustice to her  in the court deciding not to make any declaration as to a de facto relationship.

Our Brisbane family lawyers and our North Brisbane family lawyers are ready to assist you. Call us on 07 3506 3651. Our goal is to assist our clients to reach agreement with their former partner without the need to go to Court. If however court action becomes necessary, we have the experience to represent you at Court.

The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice tailored to your particular circumstances from LGM family lawyers Brisbane.

Sexual abuse in parenting proceedings and related allegations must be addressed on the evidence before the Court. In appropriate cases, a Court may determine that compelling inferences are open on the evidence before it.

Where allegations of sexual abuse in parenting proceedings are made in relation to a child, any finding made by the trial judge regarding those allegations will stand on any appeal unless they are contrary to the evidence or compelling inferences or are obviously improbable.

It is not necessarily enough to succeed on allegations of sexual abuse in parenting proceedings to rely upon affidavit evidence of a parent or alleged key witnesses. The consistency of that affidavit evidence and the credibility of witnesses will be of real importance. Where a court finds that a witness has been influenced by another person regards the affidavit evidence of that witness, the integrity of the evidence of that witness is severely compromised.

Contact our family lawyers Brisbane or family lawyers Brisbane Northside for advice concerning evidence to be given in parenting proceedings or regards any family law issues, whether parenting matters or property division matters. We offer complimentary/free advice during your first call with us.  Our goal is to assist you to reach agreement with your former partner without the need to go to Court. If court action becomes necessary, we will represent you effectively in Court. You are also welcome to read on………………………

In Ferreday & Layh [2019], the Full Court of the Family Court of Australia dismissed an appeal by the father who claimed amongst other things that the primary/trial judge had failed to make a finding of sexual abuse in parenting proceedings in relation to a child.  Orders sought by the father included that all sexual interference with the child was to cease and a declaration that the child had been sexually abused by both the mother and a Mr. Y.

The primary judge had not accepted as true the allegations of sexual abuse of the child that had been made by the father. The Full Court noted that there had been significant differences regards the affidavit evidence given by the paternal grandmother and her statutory declaration concerning the allegations that she made of having witnessed sexual abuse of the child.  Her evidence was internally inconsistent and inconsistent with the father’s evidence. Both her evidence and the evidence give by a neighbour were found by the primary judge to have been coloured by their obvious acceptance of the father’s concerns. The primary judge considered that it was likely that the paternal grandmother’s evidence was “either promoted by the [father] or at the very least significantly coloured by his presentation to her”. The primary judge had however found Mr Y to be a credible witness.

The Full Court considered that these findings were open to the primary judge.

Call 07 3506 3651 or contact us via our website for advice from our experienced child custody lawyers Brisbane or our family lawyers Brisbane concerning any family law issue that you may have. We can assist you in relation to allegations of sexual abuse in parenting proceedings or in relation to any other parenting or property issues. We are ready to assist you to resolve your family law matter.

You may also find other information on our site helpful regards parenting matters.

The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice tailored to your particular circumstances from LGM family lawyers Brisbane.

Drug use by a parent is a matter that is considered by the family courts when determining what living arrangements are in the best interests of children.

Contact us! Our child custody lawyers Brisbane or child custody lawyers Brisbane Northside will advise you regards how a parent’s drug use can affect the outcome of your parenting matter. We are able to advise you concerning any area of family law and offer complimentary advice during your first call with us.

You are also welcome to read on…..

In the matter of Lemus & Lemus [2019] in the Federal Circuit Court of Australia, orders had been made in October 2018 for children to live with the Mother and to spend time with the Father.

After evidence emerged of drug use by the Mother where she had been taking cocaine, the Father brought an Application seeking further interim orders for the children not live with him.

The Mother deposed that regards drug use, the last time that she had used cocaine was on 15 and 16 February 2019 when the children were not in her care and that she had also used cocaine in September and December 2018 when the children were not present.

In February 2019, each of the Mother and the Father had undergone drug use testing which returned a negative result for the Father but had shown positive for the mother for cocaine use.

Drug use by the Mother was not in dispute.

The Court considered the terms of section 60CC of the Family Law Act 1975 (Cth)
and the two primary considerations which are:

a. The benefit to the children of having a meaningful relationship with both of their parents; and

b. The need to protect the children from physical or psychological harm from being subject to or exposed to abuse, neglect or family violence.

The Court said that it was the need to protect the children which was in issue following the mother’s relapse into drug use and the possible effect that can have on the children if it continues, and what can be done to address the risk of drug use.

Where there is a risk, the Court must decide if the risk amounts to an unacceptable risk. If the risk is unacceptable, the Court looks to whether the risk can be addressed by orders or if it is necessary that there is no contact between the parent who presents the
risk and the children.

In this case, the Court decided that the unacceptable risk of drug use could be handled so that on an interim basis, the children would continue to live with the Mother if the
Mother stopped drug use and to spend time with the Father.

However, the Court said that on the evidence there was a significant risk that the Mother will relapse into drug use. The Mother was continuing on her evidence to see her psychologist and psychiatrist.  The Court warned of a complete change of the living arrangements if the Mother is shown to relapse into drug use on further random testing.

The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice tailored to your particular circumstances from our Brisbane family lawyers or our family lawyers Brisbane Northside.

Extension of time to appeal is only allowed in the family court in limited cases.

Under the Family Law Rules 2004 (Cth) (“Rules”), a party has 28 days to file an appeal following orders being made.

An extension of time to appeal may be granted by the court where there are adequate reasons provided for failure to comply with the timeframe for filing a notice of appeal.   However, adequacy of reasons is only one factor that the appeal court considers when deciding whether or not an extension of time to appeal will be allowed.

The grant of an extension of time to appeal is not automatic.

The discretion which the court has to grant an extension “is given for the sole purpose of enabling the court …to do justice between the parties… In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time…” (see Gallo v Dawson (1990) in the High Court of Australia which is referred to recently by the Appellate Division of the Family Court of Australia in Gholke & Gholke [2019] FamCAFC 64.

Where there is an application for extension of time to appeal, the prospects of the applicant succeeding in the appeal must be considered. Before a person can succeed then in obtaining an extension of time to appeal, the appeal court must be satisfied that to refuse the application would result in an injustice. It is not necessary for the appeal court to decide that the appeal would certainly succeed. It is sufficient to allow an extension of time to appeal even where there is the remotest chance of success.

Contact our divorce lawyers Brisbane or divorce lawyers Brisbane Northside for advice regarding any family law issues. Our priority is to assist our clients to reach agreement with their former partner without the need to go to Court. If however court action becomes necessary, we have the experience to represent you at Court.

The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice
tailored to your particular circumstances from LGM family lawyers Brisbane.

A case guardian can be appointed where one party to family law proceedings lacks the mental or physical capacity to represent themselves.  If you are worried that you cannot manage proceedings yourself, whether or not you are instructing a solicitor, you should consider whether appointment of a case guardian may be appropriate.

A person who is a manager of the affairs of a party is taken to be appointed as case guardian of the party if the person has filed a Notice of Address for Service, filed an Affidavit which provides evidence that the person has been appointed manager of the affairs of the party and consents to the appointment as the case guardian (Rules 6.10(2) & 6.08A,  Family Law Rules 2004 (Cth)).

However, a party only requires a case guardian if he or she suffers from a relevant disability.  The dictionary to the Family Law Rules 2004 (Cth) provides that a person with a disability in relation to a case means a person who, because of a physical or mental disability –

a. does not understand the nature or possible consequences of the case; or

b. is not capable of adequately conducting or giving adequate instruction for the conduct of the case.

Contact our family lawyers Brisbane or family lawyers Brisbane Northside for advice concerning appointment of a case guardian or regards any family law issues. Our priority is to assist you to reach agreement with your former partner without the need to go to Court. If however court action becomes necessary, we have the experience to represent you at Court. You are welcome to read on for more information regards case guardians…….

In Genesalio & Genesalio [2019], an application was made in appeal proceedings by the husband’s brother that he be appointed case guardian for the husband. There was no suggestion that the  husband suffered any mental disability but it was found that the husband, who suffered various medical conditions, including heart disease and kidney disease.

The Family Court of Australia on appeal found that although there was no very recent medical evidence available to the Court,  that it was open to the Court to find that the stress and anxiety that the husband would feel in having to appear in the appeal proceedings and conduct his case himself had the possible consequence of the husband suffering a heart attack or having to be hospitalised. The Court therefore found that the husband suffers from a disability that prevents him from adequately conducting the appeal proceedings so that a case guardian was required in that regard.

The Wife opposed the application with her submissions including that the husband’s brother has an adverse interest to the husband as they each had interests in certain trusts and real estate.  The Court held that it could not yet be known
whether the husband and his brother would take a united position or different positions in the property settlement proceedings regards the trusts and properties.   The answer may depend upon whether or not the husband’s brother was made a party to those proceedings. That could only be determined as the property settlement proceedings developed.

However, the Court took the view that the husband’s brother had no adverse interest to the husband’s interest in the appeal proceedings. Those appeal proceedings concerned only an appeal by the husband against a costs order and an appeal against an order that the wife have sole use and occupation of the former matrimonial home. The Court also found that the husband’s brother could “fairly and competently” conduct the case for the husband as his case guardian (Rule 6.09 (c) Family Law Rules 2004 (Cth)).

The husband’s brother was appointed case guardian of the husband but limited to the appeal proceedings.

The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice tailored to your particular circumstances from LGM family lawyers Brisbane.

Final parenting orders discharge all interim orders. Maybe you have obtained final parenting orders. If you later want to have some related parenting issue determined by the family court, you must make a fresh application to court.

If the final parenting orders that you obtained fail to cover some issue that had been covered by an interim order that had been made before final orders were made, then you will need either to each agreement with your former partner about that issue or if agreement cannot be reached, make a fresh application to the family court seeking further final orders.

You should be aware though that before the family court will hear your application where final parenting orders have already been made, you will need to be able to satisfy the rule in Rice and Asplund (1970).

Once final parenting orders are issued, the family court may not hear a parenting application seeking only interim orders. The Court can however hear a fresh parenting dispute. However, a parent cannot make an application for only interim orders after final parenting orders are issued as there will be no pending application for final orders.

If you would like practical and effective family law advice, contact our child custody lawyers Brisbane or our child custody lawyers Brisbane Northside on 07 3506 3651. You are also welcome to read on…….

In Sadasivam & Seshan [2019], the Family Court of Australia allowed an appeal by the father against a court order which purported to temporarily suspend an interim injunction that restrained parties from removing a young child from Australia and an interim airport watchlist order. This then enabled the mother to take the child to India to visit her family.

The Family Court of Australia allowed the appeal but for reasons that were almost entirely unrelated to the grounds of appeal on which the father had sought to rely.

Although final orders that had been made by the primary  judge did not in terms discharge those interim orders, the Family Court found that those interim orders were discharged in effect by a final parenting order having been made. It was in error then that further interim orders had been made after the final orders were issued which tried to suspend the operation of that interim injunction and interim airport watchlist order.

The mother’s application had been filed as an Application in a Case which the Family Court on appeal said was appropriate for interlocutory or procedural orders. Given the existence of final parenting orders, the Family Court on appeal found that the mother’s application could not be properly heard as an interim application.

Despite the mother’s use of the wrong form, the Family Court said that her application could only properly be heard as one commencing new proceedings under Part VII of the Family Law Act 1975. That new proceeding would require that primary judge decide whether the child could travel overseas with his mother since the parents could not agree over that issue in exercising their joint parental responsibility.

Since the court allowed the appeal, unless and until there were further parenting orders made, there was nothing to stop her from taking the child overseas. The father could however object in the exercise of his equal shared parental responsibility. Where the parties could not reach agreement, one of them could file and serve an Initiating Application seeking final parenting orders and interim parenting orders.

Contact our family lawyers Brisbane or family lawyers Brisbane Northside for advice concerning final parenting orders or any family law issues. Our goal is to assist our clients to reach a negotiated agreement with their former partner without the need to go to Court. If however court action becomes necessary, we have the experience to represent you at Court.

The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice tailored to your particular circumstances from LGM family lawyers Brisbane.

Assessing contributions for property settlement is a significant element in working out what is an appropriate way to divide assets following separation.

What is clear from the case law is that it is not appropriate in assessing contributions in family law property settlement to effectively cherry pick assets. What is generally considered in a long term relationship is the myriad of contributions made by both parties and the totality of assets.

In the recent case of Jabour & Jabour [2019], the Full Court of the Family Court of Australia set aside the orders made by a primary judge who, in assessing contributions, had awarded the husband 66% of the net non-superannuation property and the wife only 34% of that property. The parties had been in a long term marriage where the husband had owned Property A before he met the wife. Originally, the husband as a child had acquired from his father a half interest in three blocks of land. Following marriage, two of the blocks had been divided between the husband and the other co-owner. the net proceeds from sale of the block that the husband took were used as to half for family purposes and as to the other half, the proceeds were used for the husband to buy out the co-owner’s interest in the third block of 44 acres. The husband became sole owner of that block of land. The land had been re-zoned and as a result had increased substantially in value to in excess of $10,000,000 at the time of the court hearing.

The Full Court accepted the wife’s argument on appeal that the primary judge in assessing contributions was in error in seeking  a nexus between the contributions by the parties to Property A  and its present value. The only contribution of that kind that the primary judge had identified was on the part of the husband in bringing the property to the relationship.

The primary judge was in error in weighing the myriad of contributions made by the parties against the contribution made by the husband in bringing Property A to the relationship. Instead, the primary judge in assessing contributions should have treated Property A as one of the myriad of contributions made by the parties.

The Full Court said that the approach of the primary judge had the effect of overlooking:

• the parties’ decision not to use all of the funds from sale of the other block for family purposes but to use half of those proceeds in order for the husband to gain sole ownership of the block of land that was rezoned;
• the decision not to sell the rezoned land at an early stage was also a significant contribution, allowing the parties to enjoy the benefit of the increase in the land value.

The approach taken by the primary judge in assessing contributions had also had the effect of minimising the myriad of other contributions that were made in the course of a long term marriage and which the parties regarded as equal.

It was confirmed in relation to a sudden increase in the value of an asset unrelated to the efforts of the parties, such as a re-zoning by a council or a lottery win, that that increase is treated as a joint contribution by both parties, regardless of which party may have bought a lottery ticket during the relationship.

The Full Court in assessing contributions considered that the primary judge however had erred in giving the husband credit for the revaluation of Property A when the primary judge recognised the value of that property at the time of the hearing rather than it merely being the springboard for its later value.

It was not right in assessing contributions to quarantine Property A from the myriad of other contributions made by both parties throughout the relationship. The evidence showed that throughout the relationship, the parties’contribution to Property A were of the same nature and extent that each made in their respective agreed roles.

Contact our Brisbane family lawyers and our family lawyers Brisbane Northside for effective advice in assessing contributions for a family law property settlement or regards any area of family law. We have the experience to assist you to resolve your family law issues. Our aim is achieving agreement for you and your former partner without going to court. If however court action becomes necessary, we have the experience to represent you in court.

The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice tailored to your particular circumstances from LGM family lawyers Brisbane.

Forgive and forget! When your partner lets you down or disappoints you, whether you can do that – forgive and forget- not just the once but over and over can be a big indicator of whether your relationship can stand the test of time. This seems to be one message from relationship experts. It makes sense though we all understand that it is easier to forgive and forget the small things. The bigger tests for a couple arise when one partner may offend deeply held beliefs or values of the other person.

As family lawyers, it is not uncommon for us to see situations where one person may long just to forgive and forget. It may be that they wish that their former partner could forgive them. If that is your situation, then it is surely worth it to do what is necessary to find out if the relationship can be redeemed. Of course, if there is a situation of abuse, it is important that the abused person and children are protected against the risk of abuse continuing. Where children are involved, in the absence of abuse, research supports that they benefit if parents are able to remain living together. That is only true it seems however if parents are able to maintain a positive atmosphere in the home. For some people who would otherwise wish to separate, that may be possible. If that is not your situation though, it is wise to consult experts on the effect on children of living in a stressful environment. You may conclude that it is better for your children that they spend time with each parent in a separate household where the children can relax.

Your doctor will be able to refer you to an appropriate professional to help you work through the best options for your family. The idea of “forgive and forget” may be what you want to achieve but obtaining professional advice or counselling can help you with how to make that concept work for you. You may also like to find out about the services offered by Relationships Australia to help you through relationship difficulties.

However, your situation may be that “forgive and forget” is no longer an option for you. If you are needing to separate or have done so, contact our family lawyers Brisbane or our family lawyers Brisbane Northside for practical advice. We can assist you to resolve your family law issues, whether parenting or property settlement, without the need to go to court. We do however have the experience to represent you in court if you are needing to start a legal action or to defend an action by your former partner.