Category

Family Law

Moving House With The Kids?

By | Family Law

Packing up and moving is seldom easy. For parents, packing up and moving with the kids following separation or divorce can be especially challenging. One of the most serious considerations is whether you have to get the other parent’s permission to do so. Here’s what you need to know about this important issue.

Reaching consensus on the move

In accordance with Australian law, you must get your former spouse’s (or former partner’s) permission to move with a child you had together. Ideally, the two of you will still be on good terms at this point. If so, you might be able to reach an agreement on your own about your relocation with the kids. Once you’ve done so, you should consider taking appropriate steps to formalise the agreement.

If you can no longer communicate with the other parent effectively by the time you are considering a move, there is always Family Dispute Resolution (FDR). In this forum, a neutral third party facilitates the conversation while allowing each of you to have a say about specific aspects of the agreement.

In a best-case scenario, FDR will work. If it does, you must then decide how to formalise the agreement. This is usually done through either a written parenting plan or a consent order. The key difference is that a parenting plan is not legally binding, but a consent order is. Although you may not think you need a legally binding agreement, it is always best to consult a qualified lawyer before signing any legal document.

When court intervention is warranted

But what if you’re not on good terms with the other parent, you’ve tried FDR and it didn’t work? In this situation, court intervention is warranted, and you must submit an application requesting Relocation Orders. Once you have filed it, the court will determine whether or not you can move with your child.

To reach its decision the court must consider whether relocation with you is in the best interests of your child or children. There is no guarantee that the court will allow it. Specific factors the court will usually take into account include:

  • Whether the proposed arrangements would allow your child/children to have or develop a meaningful relationship with both of you (and in particular, the parent who is not relocating).
  • The child’s/children’s opinion(s) (if they are capable of expressing them).
  • The child’s/children’s bond with each of you (and any other significant people in their lives) and how separation is likely to affect them.
  • The logistics (including cost) of the child/children spending time with each of you (again, in particular, spending time with the parent who is not relocating).
  • Your ability to communicate and foster a meaningful relationship for the child/children with each parent.
  • Any other relevant factors.

You should be prepared to explain the reasons for your relocation (such as a new job, to be closer to family, or the need to escape an abusive relationship). You should be prepared to provide documentation, keeping in mind that the other parent can also seek court intervention to prevent your move.

Relocating to another country

One of the most common concerns parents have about this topic is distance. As it stands, there are no legal restrictions on how far a parent can move with the children following separation or divorce. Theoretically, this means you could move to another country with them. However you could only do with permission from the other parent or the court.

With that being stated, remember that the court could deny your request. Specifically, it could do so if it determined that the distance would greatly inhibit the other parent’s  ability to have a meaningful relationship with the children.

On a similar note, you will also need the other parent’s permission to take your children abroad for even a short holiday. Additionally, both parents must provide written consent for a child to get an Australian passport.

Without written consent, you can still apply for a passport for a child but you must request that special circumstances be considered. Any such application should be made to the Approved Senior Officer of the Department of Foreign Affairs and Trade.

If this application is also denied, you can seek a court order allowing your child to travel internationally. However, absent the other parent’s consent, the court will only issue such an order if it deems that permitting the child to travel is in their best interest.

The consequences of moving without permission

If you and your children move to another part of Australia without a court order or the other parent’s consent, the court will likely intervene. Specifically, it may order that you return to your previous residence until the case is decided. If there is a current court order that you have violated by moving, the other parent can ask the court to have it enforced.

In this context, you should also be aware that if you move overseas without proper authorization, you may be subject to a Hague Convention Application for the return of the children. However, this will only happen if you relocate to a country where the Convention is applicable.

When to seek legal assistance

We recommend seeking competent specialised legal advice about relocation well before you move. This is because it can sometimes take the court months or even years to reach a decision and you need to know the consequences of your actions before you make them.

There are also times when urgent advice is needed. Please contact us immediately if:

  • you anticipate that the other parent is considering relocating with your children and wish to prevent the move; or
  • the other parent has already relocated without proper authorization or consent.

Call us on (07) 5571 1450 or contact us by email admin@twohilllawyers.com.au to schedule an initial consultation with an experienced member of our family law team.

Recovery of Children

What are the Issues Around Recovery of Children?

By | Family Law

The worst nightmare of any parent going through separation or divorce is that your ex-partner might ‘take off’ with your kids, within Australia or overseas. Perhaps it has already happened. In either case, you have legal rights. Here’s what you need to know about the recovery of children in family law.

Common reasons for moving without consent

Australian law mandates that a parent must have the other parent’s consent to move with a child following separation or divorce. Alternatively, they must have a court’s permission to do so.

In a child recovery case, the first task is to ascertain why your former partner and the kids relocated without the consent of yourself or the court. Common reasons include but are not limited to:

  • The need to be closer to family (especially for mums with young children);
  • involvement in a new relationship with someone who lives elsewhere;
  • the need to escape violence and/or abuse.

Based on your circumstances, we can provide legal advice about your ability to make an urgent family court application for a recovery order.

What is a recovery order?

When your former partner moves with your child/children without your consent, the Family Law Act 1975 (Cth) allows the court to issue a recovery order. This type of order requires that your child/children are returned to the care of:

  • A parent; or
  • anyone with a current order for the child to live with, spend time with or communicate with; or
  • a person who has parental responsibility for the child.

In this context, you should be aware that this type of order is applicable regardless of whether or not you have current court orders for the child’s care arrangements.

Something else to keep in mind is that a recovery order actually serves two purposes. First, it allows law enforcement to intervene. This is important because the police are best equipped to find the child/children and ensure they are placed in appropriate care. Secondly, it prevents any recurrences of unauthorised relocation.

Who can apply?

If someone other than a parent has concerns about the unauthorised relocation of a child, the question then becomes, who can apply for a recovery order?

A parent is not the only person who can legally do so. A grandparent or anyone else who is involved in the child’s care, welfare and development can also apply for the order.

Applying for a recovery order

The way in which you can apply for a recovery order depends on your situation. If you have pending or existing parenting orders, you can request a recovery order by lodging an application with the appropriate court. If you don’t have current parenting orders or a pending application for them with the court, you should file an application for both.

In either circumstance, you must file an affidavit in support of your request for a recovery order. This is because these orders are only granted at the court’s discretion and they will need to understand your situation.

Based on the information provided, the court decides what is best for the child. As part of this process, it considers whether the child should be sent back to their original place of residence and what living arrangements should be made.

Child recovery from other countries

To this point, we have detailed the child recovery process when relocation occurs in Australia. But what happens if your ex moves to another country and takes the kids without permission?

In such cases the Australian Central Authority within the Federal Attorney-General’s department is the legal forum for seeking the return of abducted children. However, the Central Authority can only process an application for the return of a child who has been taken overseas if:

  • He or she is less than 16 years of age;
  • you have “rights of custody”;
  • you were exercising such rights when your child was illegally removed from Australia or kept in another country;
  • your child was living here continuously immediately before he or she was illicitly taken out of Australia or kept overseas;
  • he or she was taken to, or retained in, a country where the Hague Convention applies; and
  • your child was removed from Australia or kept in another convention country without your consent, or without a court order.

You can find the application to be completed with the Australian Central Authority here.

Keep in mind that you may need to attach certain documents to your application. These may include:

  • A certified copy of the child’s birth certificate;
  • photographs of the child and the person who took him or her out of Australia;
  • a certified copy of existing parenting orders;
  • copies of your Certificate of Marriage and Divorce Order (if applicable).

In most cases, time is of the essence if your child has been taken overseas to a Hague Convention Country without your permission. This means you should submit your application to the Central Authority as soon as possible.

A last resort

Most of the time – in about 80 percent of cases – the failure to return a child to you as scheduled stems from miscommunication or misunderstanding. Accordingly, a simple text message or phone call from you should hopefully resolve the matter. Alternatively, if you and your ex aren’t on speaking terms, a phone call or text from a mutual friend may prompt a quick return of your child.

This means that seeking a court order for the return of your child or filing an application with the Central Authority should be considered a last resort.

If you are going through separation or divorce and have questions about this or any other related issues, we are here to help. Simply phone us on (07) 5571 1450 or contact us by email admin@twohilllawyers.com.au to schedule an initial consultation with an experienced member of our family law team.

Spousal Maintenance

What is Spousal Maintenance and How Do I Get It?

By | Family Law

As family lawyers, we often get questions about spousal maintenance. Clients who have heard about it from family or friends sometimes have misconceptions about what it is. Sometimes they are unsure whether they are eligible for maintenance, or they aren’t sure how to go about getting it. In this post, we’ll address some of those questions and concerns.

What is spousal maintenance?

Spousal maintenance is an entitlement afforded to a legal or de facto spouse under the Family Law Act in certain circumstances. The law allows someone to claim spousal maintenance after separation if:

  • There was a significant disparity in income between the parties at the time of separation; and
  • the person who makes more is capable of providing financial support for his or her former partner; and
  • the person who is seeking financial maintenance can’t support himself or herself for any ‘adequate reason’, or one of the reasons detailed below.

Legally, someone can claim spousal maintenance if they need financial support due to their age, health, or mental illness (if any). Someone who has primary care of a child/children from the marriage can also claim spousal maintenance if they can’t support themselves and the child/children without help.

Spousal maintenance is payable in regular instalments or in one single payment based on the specific circumstances of each case.

Methods for obtaining spousal maintenance

Hopefully, you and your former spouse can reach consensus on spousal maintenance on your own. If that isn’t possible, the only way to get spousal maintenance is to file an application for it in the Federal Circuit Court. Along with the application, you’ll have to provide supporting documents detailing your finances, including your income and expenses. The person you’re seeking spousal maintenance from is also required to provide similar information in response to your request.

In this context, one of the most common questions we get is whether the Court uses a specific formula to determine how much the applicant should get. The answer to this question is, “no”. Instead, it assesses the applicant’s ‘financial need’, and the ability or financial capacity of the person with the greater income to meet it. Based on that, the Court then uses its discretion as to what constitutes a reasonable payment.

Relevant criteria

Specific factors taken into consideration include the following:

  • The age and health of both spouses;
  • each of your incomes, property, financial resources and ability to work;
  • who, if anyone has the care of a child;
  • whether one or both of you are responsible for supporting any other person;
  • whether one or both of you qualify for any social security or superannuation benefit;
  • what constitutes a ‘reasonable standard of living’;
  • how much you, as the applicant, have contributed to the other party’s financial resources;
  • the length of your relationship and the extent to which it has affected your earning capacity as the applicant;
  • any current or future liability for either of you in terms of child support payments;
  • any financial agreements between the two of you;
  • any other circumstances the Court deems worthy of consideration in accordance with Section 76 of the Family Law Act.

The purpose of spousal maintenance

There are also a few more things you should keep in mind. The first is that spousal maintenance is not meant to keep you in a lifestyle that you’ve become accustomed to. In other words, you can’t seek spousal maintenance just because you’re used to living in a luxurious home and driving an expensive car, and you won’t be able to afford it on your own.

Secondly, you, as the applicant for spousal maintenance, must take steps to secure work and become financially self-sufficient. The only exception to this requirement is if you have primary care of young children. This is because you are allowed to assume that role as long as your children aren’t yet in school. In other words, you don’t have to deplete all of your marital assets prior to making an application for spousal maintenance. However, you will probably be required to take the same steps towards financial self-sufficiency as any other applicant once the children are old enough to go to school, unless you can provide a viable reason for being unable to do so.

Deadlines for applying for spousal maintenance

The deadlines for applications for spousal maintenance depend on the nature of your relationship. If you were married, you must file your application within 12 months of the date of your divorce. But if you were in a de facto relationship, you must make the application within two years from the date of final separation.

Failing to meet these deadlines does not necessarily preclude you from making an application. This is because you can request special permission from the Court to file an application after the deadline. However, the Court probably won’t accommodate your request unless you can provide a good reason for failing to file within the original time limit.

Summing up

To conclude, spousal maintenance is a basic entitlement legally afforded to a spouse in a marriage or de facto relationship after separation. Eligibility is based on certain criteria. If you and your former spouse are unable to reach an agreement about spousal maintenance payments, you can apply for it through the Court. In either situation, it is always best to get proper legal advice from a qualified family lawyer before proceeding. Contact us to learn more about how our family law team can help you get the spousal maintenance you deserve on (07) 5571 1450 or admin@twohilllawyers.com.au

international divorce

What You Need to Know About International Divorce

By | Family Law

From both an emotional and a practical standpoint, getting divorced is seldom easy. It can be especially challenging if you and your spouse are from different countries, however, or if one of you lives abroad. Here’s what all Australians should know about international divorce.

First things first: is your marriage recognised here?

If you got married in another country but you want to get divorced in Australia, the first legal issue that must be addressed is whether your marriage is recognised here. Although a marriage that occurred overseas can’t be registered here, you should still have a foreign marriage certificate. That can be used as proof that the marriage occurred.

In the context of Australian divorce proceedings, any overseas marriage certificate written in another language must be translated into English. Furthermore, this must be done by a registered translator. Finally, both the marriage certificate and translation should be attached to an Affidavit.

In general, a marriage that occurred abroad will be recognised here if you can provide the proof detailed above and:

  • It is deemed legal in the country where it took place;
  • it would have been considered valid under Australian law had you been married here.

However, any of the following conditions bar recognition of a foreign marriage in Australia:

  • if either of you were still in another, legally recognised marriage when you married each other;
  • if either or both of you are domiciled outside of Australia and younger than 16 years of age;
  • if the two of you are closely related (to an extent that marriage is legally prohibited) or there is no mutual consent (one of you has been forced into the marriage).

Eligibility for a divorce in Australia if you or your spouse are living abroad

Assuming you got married abroad and your marriage is recognised here, filing for divorce in Australia is relatively straightforward – as long as both of you are currently living here. But what if one of you now lives in Australia and the other lives overseas? You can still apply for a divorce in Australia if either one of you:

  • Considers Australia as your home and intends to live here indefinitely;
  • is an Australian citizen by birth, descent or by grant of Australian citizenship;
  • usually lives here and has done so for 12 months prior to filing for divorce.

Keep in mind, however, that you must still provide proof that you and your spouse have  lived separately and apart for at least 12 months. Furthermore there must be no reasonable possibility of reconciliation and resumption of married life. Remember, it is possible to live together in the same home and still be separated.

Deciding where to get divorced

Now that we’ve established when you can file for divorce in Australia, the next question is whether this is the best option for you. The answer is, it depends on your unique circumstances. Generally speaking, however, there are serious legal and financial issues to consider when making this decision.

Let’s say, for example, that you’re trying to decide whether to file for divorce here or in a European country. What are the legal pros and cons?

Well, to begin with, Australian law recognises de facto and same-sex couples. It also allows for the division of property when a relationship fails. By comparison, European countries tend to have fewer rights for de facto partners regarding the division of property when a relationship is no longer viable.

Secondly, Australian courts make binding property orders pertaining to any property held by the parties. This means any such orders would apply to property in Australia and abroad. While some European countries also do this, others don’t. In fact, many European courts limit property orders to property located in their country.

Finally, premarital agreements in some European countries may be considered binding. As such, courts may not have jurisdiction or authority to change the terms of the agreement. This may be true even if:

  • The terms are grossly unfair;
  • one party did not seek independent legal advice prior to entering the agreement;
  • a sudden change in one or both of your personal circumstances rendered the agreement unfair or unjust.

Other issues of concern in this context are how courts in European countries handle financial disclosures and spousal maintenance.

Giving you the information you need to make an informed decision

One of the most important things we do as family lawyers is giving our clients the information and tools they need to make informed decisions. If you have questions or concerns about international divorce, our family law team will provide comprehensive legal advice tailored to your situation. Depending on your unique circumstances, we can address:

  • Tax implications associated with international divorce;
  • how long it will likely take to get divorced in another country;
  • whether or not the courts in another country can grant protective orders;
  • the extent to which foreign divorce laws could adversely affect someone of a specific gender or someone in a de facto relationship;
  • the extent to which the laws in some European countries may influence where divorce proceedings are filed.

If you need advice or guidance about how we can help facilitate your international divorce, contact trusted divorce and family law specialists Twohill Laywers today on (07) 5571 1450 or admin@twohilllawyers.com.au.

Separation

10 Things You Must Do Following Separation

By | Family Law

There are few experiences more traumatic in life than a relationship break-up with a long-term, much loved partner. For some people, the emotional stress of such an event can have considerable and lasting effects on their finances, on their health, and on their lifestyle.

Naturally enough, the bust up of a relationship can also seriously impair your thinking in the weeks and days after it happens. Arguments and continuing conflict have the potential to overwhelm your ability to make the essential decisions that you need to make in order to move on with your life.

That’s why we’ve come up with this list of 10 things you should keep front of mind if and when a separation happens. Paying attention to some of the things on the list will make ‘life admin’ – made necessary as a consequence of changing living circumstances – a lot easier to deal with.

1. Consider Counselling or Mediation

Either for yourself or, if they agree, with your ex-partner, visiting an objective third party to discuss your relationship breakdown and its implications can be an effective way of externalising the pain and trauma involved. It is also a way to avoid the destructive arguments that can envelop ex-couples post-break-up, which sometimes prevent them from effectively sorting out important issues such as children, finances and living arrangements.

2. Seek Legal Advice

While a separation does not require you to see a lawyer, if you were married and plan eventually to divorce, you’ll need to be properly separated for 12 months. Even if you don’t have an immediate plan to divorce, a chat with a lawyer who has family law experience can help clarify what needs to be done in the days and weeks after separation. They will help you prioritise the documentation you will need in order to later finalise arrangements such as divorce, custody arrangements, property settlements, etc.

3. Talk to Your Children

Children are clever and will always know when things are not right between parents. Be honest and upfront with them about the separation. Invite and do your best to answer their questions on living arrangements and other implications of the separation. Ensure they have what they need to feel safe and secure. Avoid criticising the other parent in their presence – this will not stand you in good stead in any latter family law proceedings. Again, consider a counsellor or family dispute resolution service to help the children understand what’s happening.

4. Assess Your Financial Position

Chances are that being in a relationship meant your finances were enmeshed with those of your now ex-partner. Now that you’ve split, you will need to consider opening a new bank account, applying for a separate credit card, or withdrawing funds from an existing redraw facility or jointly held account, particularly if you’re the one who has to move out of the family home and find new accommodation. Separation can be an expensive event. If the split was particularly acrimonious, there is also the need to guard against the chance your ex will withdraw all funds from any joint account.

5. Stay Off Social Media

This is sage advice in an age when people feel the need to share everything about their lives on social media platforms. But talking about your ex, or showing evidence of your post-relationship lifestyle, can all have negative consequences when it eventually comes time to divorce, conduct a property settlement, apply for child custody and all the other unfortunate consequences of relationship break-ups.

6. Update Your Will and Enduring Power of Attorney

First up, if you don’t have a will, you probably should make one ASAP after separation as if you die without a will but remain married, your ex-spouse could inherit your whole estate against your wishes. If you have an existing will and enduring power of attorney which nominates your ex-spouse as your executor, beneficiary and/or attorney, you should update these documents to reflect your new status. Failure to do so leaves a lot of power in the hands of your estranged spouse in the event you die or become incapacitated.

7. Collect Important Documents

Following on from points 2 and 6, it’s wise to gather up all important legal and financial documents, including your marriage certificate, bank statements, tax returns, superannuation policies and loan documents, and keep them in your possession as you will need to provide detail on your assets and liabilities from the relationship when it comes time to proceed to a property settlement.

8. Review Other Important Policies, such as Superannuation

As with your will, if your ex-spouse is nominated as a beneficiary within your superannuation policy, life insurance or other death benefits, you may wish to update these details after separation. If there is no nomination in place, if you were to die the trustees of your super fund would likely pay any superannuation and death benefits to your former spouse. If money in the fund is for the benefit of your minor children, consider paying these benefits to your estate upon trust and nominating a trustee in your will to manage these funds until your children have reached adulthood, otherwise the surviving parent (your ex-spouse) – as the children’s guardian – will be in control of this money.

9. Update Other Information

Like finances, a relationship means lots of other ‘life admin’ matters are joined together. On separation, it’s time to contact various government agencies (Centrelink, etc.) to update your situation. Consider opening a new post office box and redirecting important mail from the former family home. Set up a new email account and change passwords to any personal media, internet banking and other accounts in case your ex-partner knows your former passwords.

10. Stay Calm

All of the above requires some clear thinking and a rational process, yet you’re being asked to do it during a highly emotional time. As best as possible try and keep high emotion out of the things you need to do to separate your life from your ex. Speaking regularly with a counsellor and engaging a family lawyer with a clear view of your priorities at this trying time will greatly help you navigate your way forward.

If you need advice or guidance on any of the issues raised in this article, contact trusted divorce and family law specialists Twohill Laywers today on (07) 5571 1450 or admin@twohilllawyers.com.au

Family Report

What is a Family Report and How Do We Prepare For One?

By | Family Law

In the sad event that a family breaks up, family reports have become important documents in court proceedings about the living arrangements of the children.

A family report can be ordered by a judge, or agreed to between the parents, and is conducted by an experienced psychologist or social worker with specialist training in assessing future parenting arrangements for families who’ve separated.

The report makes recommendations to the court advising on the parenting arrangements the report writer believes will be in the best interests of the children. While these recommendations are in no way binding on the court, they are likely to be persuasive on the decision of the judge about the future living arrangements for the children. The family report recommendations can also be used to assist and encourage the parents to reach an agreement and form a parenting plan to avoid court action.

What does the process entail?

A family report is based on interviews conducted by the expert, independent consultant with each parent, the children and anyone else who has a direct and significant connection with the children’s lives, such as grandparents or new partners of either of the parents. The report will include the findings gleaned from age-appropriate interviews with the children, as well as observations of each parent with the children and – if the case has gone to court – a review of any court documents, including any subpoenaed documents.

The interviews will generally be conducted at the offices of the consultant psychologist or social worker and parents should be aware they will need to set aside most of a day to partake in the process. Arrangements will likely need to be made for the children in terms of their absence from school in order to be interviewed, or their care during the time either or both parents are being interviewed. If younger, pre-school children are involved, the consultant’s office will generally have toys and books to keep them occupied.

How should you prepare for a family report?

  • Stay calm and remember that this process is designed to work out what is in the best interests of the children. Emotional outbursts or score settling are not going to help your cause.
  • Be truthful as an experienced report writer will easily spot inconsistencies in any account of the family situation, particularly as they also interview the other parent.
  • State clearly what you personally wish to happen in terms of the parenting arrangements, including how your wishes impact on the children both positively and negatively.
  • Show understanding of the other parent’s proposal for parenting arrangements and have a view on how it would work should their proposal be the one ultimately accepted.
  • Avoid relying too heavily on written information as personal recollections and accounts of family life – your actual thoughts and feelings – will be far more genuine. Having said that, if affidavit material has already been filed in court proceedings, you should be familiar with it ahead of the report. If there are any concerns about the affidavit, take a note of them during the family report Interviews.
  • Answer questions directly; avoid tangents and unnecessary detail. The report writer will ask for further details if required.
  • Nothing you say to the report writer is confidential. Anything could end up in the report.

How should you prepare your children for a family report?

This is especially difficult, given the children may not have experienced an interview setting before and most likely do not know the consultant. The process can be scary and daunting for them, particularly at a time they already feel insecure. Obviously any preparation needs to take account of the children’s ages. Specific advice on preparing children of different ages for interviews with a family consultant can be found here on the Family Court of Australia website.

The simplest advice is:

  • Keep the process simple and straightforward for children. Be clear about what is going to happen on the day and what is expected of them, without either exaggerating or minimising their role in the process.
  • Under no circumstance should you coach them about what to say or not say. If this is detected by the report writer or, later, the judge, it can adversely affect your chances of securing the parenting arrangement you desire, opening yourself to challenge from the other parent.
  • Ask them to be honest and answers questions directly.

In some cases an Independent Children’s Lawyer is appointed to help represent the interests of the children. In these cases, the lawyer should speak with the children ahead of the family report interviews. In some cases the lawyer may also help answer the questions for the children during the interview.

Other issues to note

If there is a Protection Order in place between the parties, this should be made known to the independent consultant so that the parties are kept separate in terms of appointments for conducting the family report.

If you need emotional support on the day of the interview, it’s generally acceptable to bring a close friend or relative along but it’s highly unlikely and also inadvisable that they will be allowed to sit on the interview. Avoid bringing anyone who has an acrimonious or contentious relationship with the other parent involved as this is inviting unnecessary conflict should their paths cross.

Once the interviews are conducted, the family report can be delivered any time from seven days to 21 days. If it was ordered by the court, the completed report will go to the judge first, who will then release it to each party via their lawyer (should you have one). If the report was agreed to privately between the parents, the consultant will release it to your legal representative or, if you don’t have a family lawyer, to you and the other parent directly. Remember that the report’s contents are confidential and not to be shared or distributed with family or friends.

The advice and guidance of a legal professional experienced in matters of family law, including the family report process, can be vital in these difficult circumstances. If you have questions about any of the issues raised in this article, contact trusted family law specialists Twohill Laywers today on (07) 5571 1450 or admin@twohilllawyers.com.au

De facto

What Are My Legal Rights in a Breakdown of a De Facto Relationship?

By | Family Law
Intimate relationships can take many forms these days. It’s very common for people to live together and share nearly everything in life without ever feeling the need to get married… but what is the definition of a de facto relationship, and what are your rights and entitlements should such a relationship breakdown?

In Australia, de facto couples can call on most of the same rights as a married couple in the event of a break up, including:

  1. LGBTQ couples;
  2. Married couples who start up a de facto relationship with another person;
  3. Blended families.

Depending on the circumstances of the relationship, de facto couples often reach similar settlements as married couples. With sound legal advice, people who suffer from the breakdown of a de facto relationships may seek to obtain a:

  1. suitable property split,
  2. spousal maintenance arrangement,
  3. parenting plan,
  4. regular child support payment; and/or
  5. superannuation split.

How is ‘de facto’ defined?

People who live together and are in sexual relationship are – believe it or not – not necessarily in a de facto relationship.

A de facto relationship is defined as a domestic relationship of not less than two years, but a court will make a more careful judgement of this based on an assessment of ‘genuine domestic basis’. This assessment will consider, among a number of factors:

  1. The length of the relationship and whether it is of a sexual nature;
  2. the financial dependence or independence of each party;
  3. whether the relationship include joint assets;
  4. whether there is a child or children from the relationship;
  5. the extent to which both parties are committed to a shared life.

Couples who do not live together all the time may still be considered to be in a de facto relationship, particularly if their finances are enmeshed. The Family Law Act even recognises the fact that a person can be in more than one de facto relationship at a time, even if they’re also married.

What am I likely to get?

Firstly, be aware there is a time limit of within two years of the break-up to apply for financial orders regarding your former de facto relationship.

Before the court can determine any financial dispute, you must satisfy the court you were in a genuine de facto relationship (as above) and that at least one of the criteria below is met:

  • The period for the de facto relationship was at least two years;
  • there is a child from the relationship;
  • the relationship is or was registered under a prescribed law of a State or Territory;
  • that significant contributions were being made by one party and the failure to issue an order would result in a serious injustice.

Do I have a right to some of their superannuation?

Yes, de facto couples may make a claim against the other partners superannuation either by agreement or Court Order. This can be a complicated exercise that involves ticking the boxes of strict policy requirements for each superannuation fund.

What if I can’t afford to be by myself?

If you are experiencing financial hardship as a result of your breakup, your ex may be obliged to help you make ends meet (if only for a temporary period). The success of such an application will depend on the ex-partner’s capacity to pay, as well as the applicant’s age, other income, ability to work, standard of living and whether the former relationship impaired their ability to earn an income.

What will I need to provide?

In order to get an accurate picture of your circumstances, a legal professional will likely ask you to: provide proof of:

  1. the value of all assets, liabilities and superannuation in your individual and your joint names;
  2. the value of any property held by businesses, companies or trusts in which you have an interest; and
  3. what your ex-partner earns, including all benefits and employment entitlements.

Important

If you’re unsure about whether you’re in a de facto relationship, or what you might be entitled to, we recommend you call for free legal advice before going any further.

It is very easy to run up legal fees before you even know where you stand. You will find yourself in a worse position than when you started.

Our firm will give you an indication of your legal position in one phone call, and we won’t charge you a cent.

For over 30 years, Twohill Lawyers have been providing comprehensive legal help to the people of the Gold Coast community. If you require further information or legal assistance, please contact us today for a 15-minute, no obligation advice over the phone on 07 5571 1450 or email admin@twohilllawyers.com.au.

Family Court

Private Family Court

By | Family Law
Talk to anybody who’s been to Family Court for a family matter and you’ll quickly realise it’s not the answer. It’s draining, unpredictable and very expensive.

Time

If you haven’t done so already – check out our article on The Court Process.

The Federal Circuit and Family Court are so overcrowded today that you’re unlikely to get a decision on your case for up to 2 or 3 years from the time you file your first application.

No thank you!

Expensive

I spoke to a Barrister the other day who said she had been back to Court a record number of six times. SIX. TIMES. Before the client was actually able to have their case heard by the presiding Judge.

Each and every one of those attempts cost her client over $30,000 in solicitor’s fees, “barrister’s fee”, travel fees and accommodation.

What’s $30,000 x 6?

= $180,000 down the gurgler before you even get a decision.

So not only are you delayed an answer but you’re also paying for it.

Arbitration

Arbitration is Private Court.

I like this phrase because it’s akin to the medical industry – like private vs public health care. If you had the choice, would you skip the queue?

If you need an answer quickly and a resolution FAST – opt for Arbitration.

Arbitration is:

  1. Booking a date that’s convenient;
  2. Selecting the Judge (barrister or ex-Judge experienced in Family Law);
  3. Getting a decision within 14 days of the Hearing.

What’s the catch?

POSITIVES of Arbitration:

Arbitration is quick, reliable and results in a Court Order.

So why do people still opt for the public Court system?

NEGATIVES of Arbitration:

  1. The parties bear the cost of appointing a judge for the day (arbitrator).
  2. It’s only for Property matters. They can’t make decisions about parenting matters.
  3. You need a solicitor willing to engage in the Arbitration process.
Mediation

Mediation or Going to Court: Which is the Best Option in Family Law Matters?

By | Family Law
As the old saying goes, love hurts. And that’s what makes certain decisions in family law matters so difficult. One of the toughest decisions a couple has to make as their partnership or marriage breaks down irrevocably is how to end things in a legally appropriate manner. Should you try do so through mediation or just go to court? Here’s what you should know in order to make an informed decision.

An adversarial process

If you’re bitter or angry, taking your partner or spouse to court may seem like the best option. This may also seem like the best choice if you are convinced that you’re entirely right and the other person is entirely wrong. In this case, you may mistakenly believe that the judge will simply take your side and you will get everything you want.

However, you should be aware that decisions made in haste or anger may have unintended consequences. In court there is no guarantee that either one of you will get everything you want, so you may very well end up disappointed if you pursue this option. Furthermore, appealing the court’s ruling is difficult, time-consuming and expensive.

Another point to consider is that going to court is a largely adversarial process, pitting one of you against the other (or your lawyers against each other) and leaving little room for negotiation and constructive dialogue. So even if you don’t resent the other person to begin with, you may end up feeling resentful and hostile towards them in the end.

Having said all of that, there are some situations in which going to court is the only option. This is the case when:

  • you are requesting parenting orders from a family law court;
  • you are using ‘consent orders’ to formalise the arrangement;
  • there is a history of family violence or child abuse;
  • you are responding to an application to court;
  • one of you is unable to engage in meaningful participation for various reasons;
  • one of you has acted against or ignored a court order issued within the past year.

Why opt for mediation?

Flexibility is one of the biggest benefits of mediation. Even the term itself has several definitions. Mediation within the context of family law can be defined as informal discussions facilitated by friends or relatives; or a more structured process facilitated by someone with special training called a mediator.

In either case, mediation has the following goals and characteristics:

  • It is focused on constructive dialogue, healthy conversation and reaching consensus on key issues rather than finger-pointing and casting blame.
  • It is designed to help couples going through separation or divorce avoid costly and unpleasant court battles.
  • It allows you to have significant say in the outcome.
  • It allows and encourages creative solutions to reach consensus.

Mediation can be used to help  you reach consensus on key issues including:

  • The division of property (assets and liabilities);
  • parenting matters;
  • child custody and visitation;
  • spousal support and child support.

What is family dispute resolution?

Family dispute resolution or FDR is a form of mediation used only in certain circumstances. Specifically, it is used to help separating couples who are otherwise unable to agree on parenting matters reach consensus on future parenting plans. In this process, a specially trained FDR practitioner leads the discussions and ensures that the parents remain focused on the children’s needs.

Australian law mandates that separated parents try to reach consensus through FDR   before applying to a family law court for parenting orders. The only exceptions to these rules are those detailed above.

Families in need of FDR services can find them through Family Relationship Centres, Legal Aid Commissions and similar community-based organisations or government agencies. You can learn about the government-funded FDR providers in your area by calling 1800 050 321 or use the Find Local Help search to find one nearby.

Some FDR practitioners also make their service available privately. To find one, simply consult the Family Dispute Resolution Register. You’ll be able to to find information about private provider’s costs there as well.

Options for families in isolated areas include telephone or internet based FDR through the Family Relationship Advice Line or a private FDR practitioner.

You can learn more about FDR here.

The bottom line is that traditional family mediation and FDR are both worthwhile alternatives to court in family law matters. Although FDR is only used when separating families are unable to come to an agreement on parenting plans, it has a lot of the same benefits as traditional family mediation. Both offer flexibility, allow for creative thinking and focus on constructive conversation. Both are facilitated by specially trained professionals and tend to be less expensive than protracted court battles.

To learn more about the use of different types of mediation in family law matters, contact us today.

Separation

Separation – What is Required to be Considered Separated Under One Roof?

By | Family Law
It may be a cliché but it’s also true: no matter how long you’ve been together, breaking up is hard to do. For married couples, coping with the fallout can be especially complicated – and that’s one reason why so many Australians continue to live together even after separation. But what’s required in order to be considered as “separated under one roof”?

Separation under one roof can be short or long-term

For some separated couples, continuing to live together is just “easier”, at least in the short term. It gives the person who is planning on leaving time to find another place to live, save some money for rent, or make other arrangements. It also gives someone who hasn’t held a steady job time to find one.

Then there are other couples that prefer to keep living together after separation for a longer period. In many cases, they choose to do so “for the sake of the children”, especially when the kids are younger. Although this is generally discouraged, supporters say it allows both parents to maintain ongoing relationships with the children. Depending on the situation, such as one in which the parents remained civil or even cordial, this may also provide some semblance of stability and normalcy for the kids.

Legal considerations

If you are considering separation but want to keep living with your former partner or spouse afterwards, you may also be concerned about the legality of doing so.

More often than not, it’s perfectly fine. The only time separation under one roof can be tricky from a legal standpoint is if you also plan on getting divorced, or if you and your ex have a disagreement that requires court intervention.

In fact, section 49 (2) of the Family Law Act specifically allows for separation under one roof. It states: “Parties to a marriage may be held to have separated and to have lived  separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household  services to the other.”

Seeking divorce after separation under one roof

To get divorced in Australia, you must be separated for one year (12 months). Living together for some or all of that time won’t prevent you from seeking divorce, but you must provide additional information along with your application.

Here are a couple of examples. First let’s say you’ve separated for a year, but you lived together for half that time. In this case, you must provide supporting evidence with your application.

But now let’s say you’ve been separated for five years. In this scenario, you stayed in the same home for the first three years, but lived in different homes for the last two. In this case you don’t have to provide any supplementary information.

What type of supporting material is required?

An affidavit is a sworn statement that you must file along with your application for divorce if you have been separated under one roof. In this document, you give a detailed account of your living arrangements demonstrating your separation during the 12-month period. Specifically, you must explain:

  • different sleeping arrangements (i.e. if one of you moved into the guest room);
  • changes in common activities;
  • specific divisions of household responsibilities;
  • establishment of individual bank accounts and changes in how household bills are paid;
  • the extent to which you informed friends, family and any other relevant people (such as your children’s teachers or caregivers) about the separation.

You should also be prepared to address any other significant issues in the affidavit, including:

  • Your reasons for staying in the same home after you separated and any forthcoming changes to the current arrangement (if applicable).
  • Any changes directly affecting or related to any minor children (those less than 18 years of age) that you have in common with your former partner/spouse while you were separated under one roof.
  • Which government benefits you receive (if any) and which agencies you notified about your separation. Copies of any relevant correspondence should also be submitted along with the affidavit.

Generally speaking, you won’t have to appear in court unless you made an individual application for divorce and you have a minor child in common with your former partner/spouse. This provision only applies as long as you fully explained your situation and submitted the required affidavits to the court. You may also be directed to appear in court or provide additional material if the court needs more information.

You are not alone

In summary, if your marriage can’t be salvaged and you are considering separation under one roof, you are not alone. Many Australians choose to live together after separation for a variety of reasons. Although this is legal, it can complicate matters if you want to get divorced. Therefore, it is important to get proper legal advice before making this decision.

To learn more about how we can help if you are considering this option, contact us today.

For over 20 years, Twohill Lawyers have been providing comprehensive legal help to the people of the Gold Coast community. If you require further information or legal assistance, please contact us today for a 15-minute, no obligation advice over the phone on 07 5571 1450 or email admin@twohilllawyers.com.au.

Inheritance

Is Your Inheritance at Risk of a Claim by Your Former Spouse?

By | Family Law
Historically the question of whether money is really the root of all evil has been a matter of debate but within the context of family law, there is no doubt that disagreements over finances frequently morph into something worse. There are many reasons these heated and bitter arguments over “who gets what” erupt when couples separate. In some cases, for example, fights begin when former spouses or partners can’t agree on what should happen to an inheritance.

Here’s what you should know about how the courts view a situation in which only one of you has received (or is soon likely to receive) the inheritance in question.

General Considerations

Because it is legally categorised as property, any inheritance you receive must be included in relevant negotiations. However, it is important to note that how it will be treated depends on your specific circumstances.

In general an inheritance will be treated as an asset that can be split between the two of you, or as an asset (financial resource or benefit) belonging only to the recipient. A cash inheritance will most likely be viewed as the latter. If it is, the court will likely determine that you (as the recipient) are in a better financial position than your former husband or spouse, and act accordingly.

In reaching its decision, the court may consider when you received (or will receive) the inheritance and how you used it. As an example, let’s assume you received a considerable inheritance while you were married. Now let’s also assume that you used the money for household expenses, family holidays, home improvements and so forth. In these circumstances, the court could reasonably find that this was simply your contribution to the marriage and issue an order accordingly.

On the other hand, let’s consider a scenario in which you inherited some money from your grandmother before you got married. Let’s say you weren’t living with the man or woman you eventually married, and he or she was aware of the inheritance. However, you kept the money in your own bank account and never used it for any relevant expenses or activities before or during your marriage. In this case, the court could reasonably find that the inheritance was always yours before the relationship, meaning you brought it in as an initial contribution. If you never used it and always kept it separate, depending on your partner’s circumstances, you may be able to keep it.

Other factors that the court may take into consideration are:

  • Value: The amount inherited or worth of the inheritance in comparison with the total asset pool.
  • Contributions: Whether the person who didn’t receive the inheritance contributed to it.
  • Purpose: The intended use of the money, as expressed in a will or any other specific instructions.
  • The extent of care: How much the person who did not receive the inheritance helped care for the deceased, if at all.

Relevant Cases

Of course the outcome in your case will be based on the court’s assessment of your specific circumstances. Having said that, here are a few summaries of relevant cases to help you understand how the court reaches various decisions.

First let’s look at a case called Elgabri & Elgabri. In this particular matter, the husband received an inheritance shortly before the couple separated and the judge excluded it from the general pool of marital assets. Upon further assessment of the evidence, the judge found that the husband and wife made equal contributions to the remaining assets. However, the judge also determined the wife should have an additional percentage of the assets because her husband’s inheritance gave him a financial advantage.

In another case called Elgin v Elgin, the court found that an inheritance received roughly one decade prior to the couple’s separation was insignificant in comparison to the value of the total asset pool. Specifically, it accounted for less than five percent of all available property by the time the couple separated. The judge in this case also decided that each spouse made equal contributions to marital assets. As a result, each person received an equal share of the assets.

Finally, in Sinclair v Sinclair, the wife received a considerable inheritance several years before she and her husband separated. However, the court determined that most of the assets weren’t related to direct contributions made by either person, and the wife received a significant percentage of the total assets.

In summary, it doesn’t matter whether you’ve received a small inheritance or you stand to inherit a fortune. If you are separated, it will be legally classified as property. Depending on your specific circumstances, you may be allowed to keep all of it, or it may be included in the marital asset pool. In any case, it is essential that you obtain clear legal advice on your specific circumstances.

Divorce

Four (4) Ways to Protect Yourself Financially in a Divorce

By | Family Law
No one wants to think about their marriage ending badly in Divorce. But the reality is that it happens.

 

When it does, the question of how to safeguard your finances is a common concern. Fortunately, there are several precautions you can take to protect yourself financially in divorce.

  1. Consider a binding financial agreement

Technically, you and your partner or spouse can enter a binding financial agreement before, during or after your marriage. But doing so before you get married is one of the easiest ways to protect your finances in divorce.

Also known as a prenuptial agreement or ‘prenup’, this is a formal agreement that is similar to a contract. In it, each of you states what you brought into the relationship and how the assets/liabilities should be divided in the event of separation and divorce.

As long as the binding financial agreement meets the requirements included in applicable laws, it doesn’t have to be reviewed or approved by the Family Court. In this context, it is also important to note that the court can’t change an agreement that complies with relevant requirements. However, the court can choose to disregard an agreement in certain circumstances.

On the other hand, not having a binding financial agreement at all puts your assets at risk for inclusion in the total asset pool and potential allocation to your former partner or spouse.

Although the extent of your contributions to this pool are given due consideration before it is divided, other mitigating factors may also come into play. These include but are not limited to how long you were together, how the marriage affected each of you, and your respective monetary/non-financial contributions to the marriage.

  1. Obtain sound legal and financial advice

As we have just noted, it is not too late to enter into a binding financial agreement once you are married. However, it is important to get sound legal and financial advice before pursuing this option. There are two key reasons for this. The first is because it is legally required, and the second is because every situation is different and there may be other options worth considering.

In any case, don’t be afraid to be proactive. Consulting relevant professionals sooner rather than later can help alleviate any stress you’re already experiencing, giving you time to consider the advice and plan accordingly.

  1. Maintain some financial independence

Devising a strategy that allows for some separation of assets is another way to protect yourself financially in the event of divorce. Some simple ways to maintain financial independence are to:

  • Keep separate bank accounts;
  • keep the deed of any property owned/purchased by one person prior to or during the relationship in that person’s name;
  • establish a joint household/family account for living expenses and individual bank accounts for other, unrelated expenses.

However, you should never open a bank account or take any other steps in a deliberate attempt to conceal assets. You should also be aware that the existence or creation of an individual bank account won’t automatically guarantee that you can keep all the money in it. If the court determines your former partner or spouse has a right to it, the money will be distributed accordingly.

  1. Careful documentation is key

The division of assets can be complicated when one or both of you receive gifts or inheritances prior to or during your relationship. Therefore, it is important to establish who received it and how the person who gifted it meant it to be used. In other words, was the gift given to only one person or to both of you as a couple? If someone gifted you money, did they instruct you to keep it for yourself, or use it for the family?

The answers to these questions will determine if you will be allowed to keep the asset(s) or if they will be included in the overall asset pool for allocation. Having proper, written documentation will substantiate your arguments about any assets that were given directly to you for personal rather than family use.

Careful documentation of joint and individual debt is also important when it comes to protecting your finances in a divorce. Unless you have proof that only one of you incurred a certain debt, all debt (joint and individual) will be divided in the property settlement. In other words, without proper documentation you may be responsible for paying off your former spouse or partner’s debt.

In any case, separation and divorce are never easy. But you don’t have to go through it alone. If you have questions about how to protect yourself financially, contact us today.

Family Court

Can You Travel Overseas with Your Children While Proceedings are Underway in the Family Court?

By | Family Law

There’s nothing quite like a family holiday. For the children, it’s simply a chance to have fun.

For parents, it’s a chance to introduce the offspring to new people, places and things. It’s also a chance to create cherished family memories and traditions.

But when relationships sour to the point where family matters end up in court, traveling with the children can be complicated – especially if you want to take them abroad. Here’s what you should know about going overseas with the kids while Family Court matters are pending.

Obtaining consent

The first and most important thing to keep in mind in these circumstances is that you must get permission to travel overseas with the children. Ideally, all you’ll have to do is make your spouse, partner or applicable guardian aware of your plans and obtain their consent.

If that doesn’t work, there is another option. You can also apply for a court order allowing you to take the child/children abroad.  If you choose to pursue this option, you should be aware of potential court delays and act accordingly.  Ideally, you should make this application at least six weeks prior to your departure date.

What the court will consider

Along with an application, you must file a sworn statement called an affidavit. At a minimum, it should include information about:

  • The details and reason for the proposed travel, including a copy of the itinerary (if possible);
  • the ties you and the child/children have to Australia;
  • whether the country you are visiting with your child/children is a member of the Hague Convention, or if any travel warnings have been issued;
  • your immigration status and your child/children’s immigration status;
  • your willingness and ability to provide surety;
  • any other pertinent factors.

To make a decision, the Court takes several factors into consideration. The most important of these is the risk that you will not bring the child/children back to Australia.  Based on your specific situation, you may have to put up a cash bond that you will forfeit if you fail to bring the child/children back to Australia as ordered. Conversely, the Court will allow the child to accompany you if it determines it is in his or her best interests to do so.

Additional information about the security bond

If the court finds a security bond is necessary in your case, it will include relevant provisions in the order allowing you and your child/children to go abroad. These provisions generally include:

  • Terms of payment for a single trip: Namely, the length of time prior to the date of departure in which the bond must be paid and the funds cleared. Depending on the circumstances of your case, it may range from seven days to one month.
  • Terms of payment for multiple trips: If you are planning on taking your child/children overseas on multiple occasions, you may be required to put up a security bond payable each time the child travels, a certain amount of days prior to departure.
  • Restrictions on departure: Under some orders, the child or children will not be allowed to leave with you if you haven’t paid the bond.
  • The bond amount: Again, the exact amount will depend on your situation and the potential risk stemming from the proposed travel. However, it can generally range from $5,000 to $30,000.
  • The bond type: In most cases, a cash bond is required. However, a bond in the form of real estate may also be accepted in certain circumstances.

As per the court order, payment will be made to a trust account held by your lawyer or the non-traveling parent’s lawyer. In either case, the lawyer is legally prohibited from accessing these funds without appropriate authorisation. This means the money will remain in the trust account until the release of funds is authorised.

Provisions for release of bond

In addition to the provisions we’ve already mentioned, the court order issued in your case will include stipulations pertaining to the release of bond (if necessary).

These stipulations will determine when the money is released (a specific date) and where it goes. More often than not, it will be released upon the child’s return to Australia. However, you should be aware that these stipulations may also allow for some ‘wiggle room’ in circumstances such as late return due to unforeseen circumstances.

Depending on the relevant language in the provision, the money will be released to you (the traveling parent) if you bring the child or children back to Australia as ordered. If you fail to comply with the order, the non-traveling parent will get the bond money.

Under these stipulations, bond money released to a non-traveling parent due to your lack of compliance must generally be used to facilitate the child or children’s return to Australia.  This means it can only be used for travel costs, legal costs or any other relevant fees and costs incurred by the non-traveling parent while seeking the return of the child or children.

Don’t take any unnecessary risks

Finally, you should be aware that taking a child out of Australia or trying to do so without consent or a court order is a very serious offence. The punishment upon conviction is a maximum of three years in prison.

To find out how we can help if you have a pending Family Court matter and want to take your child or children overseas, contact us today.

break-up

The Things You Need to Do Before a Break-Up

By | Family Law
As any mental health professional will tell you, a break-up is one of the most stressful experiences in life.

If you’re facing a bad break-up or divorce , it’s important to get the best possible legal and financial advice. It’s also important to lean on family and friends for emotional support, especially when you feel overwhelmed. But there are also some things that you can – and should – do on your own prior to separation. Here are some tips to get you started.

Emotional considerations

Before you do anything rash, make sure you really think everything through to ensure that separation is the only solution. If you are not in immediate danger and you can still communicate with your partner or spouse, consider exploring methods for reconciliation. Seeking help from a marriage counselor or similar professional who can help you resolve misunderstandings, identify and change negative behaviour, and facilitate effective communication may save a lot of heartache, time and money in the long run.

Practical considerations

If the behaviour of your spouse or partner has jeopardised the safety of either yourself or your children, or if your marriage simply can’t be salvaged, there are certain important decisions that need to be made sooner rather than later.

  1. Make sure your finances are in order. Specifically, you should make sure you have enough money – or access to enough money – to meet your own immediate needs and your children’s immediate needs. If you and your spouse or partner share bank accounts, be sure to access any funds you’ve contributed and use them to open your own accounts. You should also take this opportunity to establish your own credit if you haven’t already done so.
  2. Make sure you (and the kids) have a place to live. If you’re solely responsible for the rent or mortgage, you’ll probably want to stay in your current home. And ideally, your husband, wife or partner will simply agree to move out. If he or she refuses to leave, don’t be afraid to move out yourself; ultimately the law is on your side.
  3. Who “gets” the kids? If you have children, their welfare will obviously be one of your chief concerns. This means you’ll have to make certain decisions about where they’ll live when you and your spouse or partner are no longer together. In other words, you must decide who will have primary custody, and if possible, come to terms about visitation for the non-custodial parent. When making these decisions, keep in mind that the court will also view any agreements and issue relevant orders based on the child’s best interests.
  4. Be proactive about “your” belongings. As far as the Family Court is concerned, both of you own the furniture and personal belongings accumulated over the years. If you are staying in your current residence, take steps to safeguard ‘your’ belongings. Legally, you can even change the locks to prevent your husband, wife or partner from returning to take anything that belongs to you after they’ve moved out. On the other hand, if you’re moving out, you should be sure to take as much of your stuff as possible.
  5. Make sure all relevant paperwork is organised. While going through separation and divorce, you will be legally obligated to make certain information available to your former spouse, relevant professionals (your lawyer) and the court. Therefore it is critical that you put important legal and financial documents in order as soon as possible. Specifically, you should make sure you have immediate access to your marriage certificate, tax returns, bank statements, any documents related to the acquisition or sale of real property and so forth.

Additional steps you can take

Further things you should do as soon as possible include changing your life insurance or superannuation details if your spouse is designated as a beneficiary, and amending your Will if they are named as the executor or a beneficiary.

You should also take steps to protect your personal information, especially the information stored on electronic devices such as your home computer, laptop, tablet or smartphone. This is especially important if your spouse or partner knows or can access your passwords or personal identification numbers (PINs).

Be aware this is not an exhaustive list. The other issues requiring your attention prior to separation will depend on your unique circumstances. For more information about separation, and the steps you can take to protect yourself and your children, contact us today.

Blog

How to Keep Your Family Law Matter Out of Court

By | Family Law
If you’re at odds with a spouse or partner, you’re probably experiencing a lot of conflicting thoughts and feelings.

And you’ve probably got lots of questions. Should you try to mend the relationship and stay together for the sake of the kids? Or should you just end it before things get any worse? And if you do want to end it, how can you do so without taking the matter to court?

Fortunately, there are options. Government-funded dispute resolution services are employed by both the Family Court and also the Federal Circuit Court of Australia. In many cases, the courts order former spouses or partners who can’t agree on financial, property or parenting matters to try dispute resolution prior to any hearings. Family lawyers also recommend these services to their clients.

Here’s a closer look at the different types of dispute resolution commonly used in family law cases.

Family Dispute Resolution (FDR)

This is a confidential process in which someone with special training in dispute resolution will help you and your former spouse or partner reach consensus on important issues related to your separation and divorce.

Your family lawyer may recommend Family Dispute Resolution, or FDR, if you and your former spouse or partner disagree on property allocation, financial matters or parenting issues. Because lots of people and community groups offer FDR services, you may meet with a social worker, lawyer, or even someone from a Family Relationship Centre.

You can learn more about the FDR providers in your area by visiting www.familyrelationships.gov.au, or calling the Family Relationships Advice Line on 1800 050 321.

You should be aware that dispute resolution is not necessarily free. As a rule of thumb, private providers set their own fees, whilst Family Relationship Centres offer free services for a limited time and then charge based on your financial situation. To learn more about FDR costs, visit www.familyrelationships.gov.au/talk-someone/centres

Finally, you should also be aware that you won’t need legal representation during FDR. However, it’s always a good idea to get advice from a lawyer before your first session.  You’ll also need a legal representative to document any agreements so they are legally binding and enforceable.

Mediation

Mediation is another alternative to court that is frequently used in family law cases. Like FDR, it can be used to address key issues that surface during separation and divorce.

In mediation, a neutral third party with specialised training in facilitating discussions about family law matters, will work with you and your lawyers to help you come to an agreement on relevant issues. Again, you will likely have a choice of qualified professionals to work with if you agree to pursue this option.

Some other options

Sometimes, mediation and FDR aren’t effective or viable. But this doesn’t mean that all of your options have been exhausted.

Another option is to have your family lawyer conduct relevant negotiations with your former partner or spouse and/or his or her lawyer. If these negotiations break down, the next step is to consider an informal conference.

At this type of meeting, yourself and your ex, with your respective lawyers, will meet (without a mediator) to try and reach a consensus on all of the issues in question. Although you will both have to attend this meeting, you won’t necessarily have to deal with one another directly. If you are uncomfortable or it is not safe for you to be in the same room, you may be able to wait in a separate space while the talks are held.

If all else fails…

Unfortunately, there are some cases in which an estranged couple simply can’t come to terms on property, financial and/or parenting issues related to separation or divorce. If FDR, mediation, negotiations and informal conferences aren’t options or don’t work, the case will simply go to court.

The types of matters that typically end up in court include:

  • those involving child safety;
  • matters involving family and/or domestic violence;
  • cases involving parental kidnapping;
  • cases in which one person flatly refuses to engage in any attempts to resolve the issues in question.

It goes without saying that separation and divorce are never easy. Even if both parties can still communicate well and there are few points of contention, it is important to get proper legal advice from a qualified and experienced family lawyer. If you want to know more about how you can resolve any disagreements related to your separation or divorce without going to court, contact us today.