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Family Law Court Australia

Family Law Court’s Merger – Important Things to Know

By | Articles, Family Law

Whilst the majority of the legal profession was and remains staunchly opposed to the merger of the Family Court and Federal Circuit Court, the reality is that it will be upon us soon and we must adjust to the new systems in place. It is important also that our clients know the changes that are soon to occur in the system that they may be litigating in, or considering entering.

With thanks to Jacky Campbell at Forte Family Lawyers (published via www.cch.com.au) here are the ten most important things to know about the merger:

  1. The Court will now be known as The Federal Circuit Court and Family Court of Australia.
  2. The new Court will commence operation on 1 September 2021.
  3. There will only be one Court, but there will be two divisions of that Court. What is currently known as the Family Court of Australia, will become the Federal Circuit Court and Family Court of Australia (Division 1).  The Federal Circuit Court of Australia, will become the Federal Circuit Court and Family Court of Australia (Division 2).
  4. All proceedings will be commenced in Division 2. All appeals will be filed in Division 1.
  5. Division 2 will also here general federal law matters as well as Family law.
  6. Whilst all Appeals will be heard in Division 1, the Chief Justice can also direct that a matter be transferred from Division 2 to Division 1 in particular circumstances.
  7. There is no appeal from the decision of the Chief Justice to transfer or refuse to transfer a matter from Division 2 to Division 1.
  8. There will be new Rules of Court to abide by.
  9. The Federal Government has indicated that there will be 35 specialist Judges in Division 1 and 43 in Division 2 (nationwide).
  10. There is diversity of view on whether or not this new system will be better than our current one. Most of us agree that the new court won’t be better unless the Government provides it with more resources.

To a greater or lesser extent, we are very much in wait and see mode.  Watch this space.

sharing pets

Every Dog has its Day – Dogs, Definitions and Decisions on Shared Care

By | Articles, Family Law

In 2021 Australia, pets are without doubt an integral part of the majority of families. With the decision to defer having children until later in life or not at all, couples after separation are often faced with the decision about who gets “custody” of the dog (or cat or both!).

If parties can reach a private arrangement about what happens with the family pet, then that is one thing, but what happens when you can’t?

In a recently published decision of the Federal Circuit Court of Australia in Brisbane, Her Honour Judge Turner has looked carefully at the capacity of the family law courts to determine disputes, on an interim basis about the “custody” of pet dogs.

On 10 February 2021, the Court published Davenport & Davenport (No.2) [2020] FCCA 2766 (8 October 2020) (austlii.edu.au) in which the Court was tasked with deciding a self-represented Husband’s application for an interim “shared custody” arrangement for a dog.

For reasons that we will explore, Her Honour decided there was no jurisdiction to make any such Order.

After a short relationship, during which no children were born, the Wife made an Application for property adjustment Orders under s79 of the Family Law Act.  These types of applications fall within the definition of “matrimonial cause” under s4 of the Family Law Act which defines a ‘matrimonial cause” as

Proceedings between the parties to a marriage with respect to the property of the parties to the  marriage or either of them, being proceedings (i) arising out of the marital relationship.

The wife, on a final basis, sought to retain possession of the dog, conveniently referred to “D”.  There was a dispute between the parties regarding who paid for him etc but that was a matter for a final decision.

Dogs have long been treated by the family law courts as “personal property” which is defined in the Butterworths Legal Dictionary as “all forms of property other than real property; that is all forms of property other than land and interests in land (excluding leaseholds).  Personal property is traditionally divided into two classes: chattels real and chattels personal. A “chattel” is a movable possession and can be considered something capable of being the subject of action possession (a “chose” in possession”) or something that cannot be physically possessed but recoverable by a course of action (“a chose in action).

Importantly, as the Wife sought Orders on a final basis regarding possession of the dog, the Court confirmed that it had jurisdiction to hear that final application, but the Husband’s application was an interim one, which brought with it different considerations.  The Court considered that the interim application was not one for the adjustment of property interests and did not therefore fall within Part VIIII of the Family Law Act.  The Court further relied upon the decision (one of many!) in Strahan and Strahan (interim property orders) within which the Court determined that there must be jurisdiction to make interim property orders before they could be considered.

The Husband did not assist the Court in providing any authority or legislation which addressed whether the Court had jurisdiction to deal with “shared custody” of “D” the dog. The Family Law Act previously referred to “custody” however it pertained to children, the definition of which, obviously does not include dogs.  The Application therefore did not fall within the category of interim parenting decisions, which the Court could have entertained.

The Court relied upon the authority of Gaynor & Tseh [2018] FamCA 164 when confirming that the Court had no jurisdiction to make the Orders sought by the Husband.  In that authority the Court stated:

Th Family Law Act makes no reference to pets.  It was conceded by the applicant that a dog does not fit within any other category of property than a chattel. Hard as that may be for the applicant, and perhaps other dog lovers to accept, the law here concerns the alteration of interests in property. Most significantly, the issue is the question of the alteration of a property interest on an interim basis.

Whilst sympathizing with the Husband and dismissing his application for want of jurisdiction, Her Honour concluded by saying:

The Court is aware that for many people pets are regarded as members of the family however there is no provision under the Family Law Act and no specific legislation that deals with issues such as the “custody” of a pet whether that be a dog, cat, bird, lizard, fish or any of the wonderful creates that we share the planet with that would empower the court to make orders for shared custody of a pet.

The case highlights further why reaching an agreement (which can included matters which otherwise the Court may not permit) is the best outcome for all concerned, including your dog! Contact Gold Coast family lawyer for your free preliminary discussion about your family law issues (pet related or otherwise).

Telehealth

COVID-19 and the Effect on Workers Compensation and Personal Injury Litigation

By | Articles, Compensation, Insurance

Covid-19 has had a significant effect on our global situation and the way in which we are required to adapt to what is now considered a new normal way of life. Specifically, in the legal sphere of workers compensation and personal injury litigation; employers, insurers and lawyers are faced with the challenge of arranging independent medical examinations’ (“IME“) with social distancing measures and government health directives affecting how they proceed.

However, one takeaway from the COVID-19 crisis is the opportunity of finding newfound solutions and creative services to deliver safe and defendable mechanisms to assist injured or ill people return to work and/or functioning capacity. As such, telehealth (albeit by video conference or by telephone) for IME’s has become an essential development to ensure the continuing progress of litigation during the current pandemic.

What is telehealth?

Telehealth is one of the many terms used to describe the application of technology to provide non-face-to-face contact with patients. Other terms include “telemedicine” and “e-health”. Telehealth services include, but are not limited to, remote doctor and other specialists, psychologists, occupational therapists and patient consultation via video link or telephone. Telehealth is not just a technological advancement. It is the solution to assist workflow and also patients to be assessed at in the comfort of their own home.

Recent Case Decision

A recent decision in the Supreme Court of Rockhampton, Tyndall v Kestral Coast Pty Ltd [2020] QSC 56, dealt with whether the request for IME both by a rheumatologist and vascular surgeon via telehealth was unnecessary.

Crow J ordered that “in the event that the Plaintiff is unable to personally attend the examination due to COIVID-19 travel restrictions, the assessment is to be undertaken by video conference and the plaintiff is to submit to any pathology as requested by the [specialist]”. This demonstrates the Courts willingness to adapt and work with social distancing restrictions.

Paradigm shift

The Australian Government has introduced temporary telehealth services to the Medicare Benefits Schedule (MBS). This is separated into three categories, namely face-to-face, video-conferencing, and tele-conferencing when videoconferencing is not an available means of service. Allied health services have experienced a significant influx in the demand for the MBS telehealth consultation, of which half of these consultation were conducted via videoconferencing. Evidenced by the recent decision and move with telehealth in general, it seems that post-pandemic, telehealth may well be here to stay and will continue its advancement to facilitate the new norm for clinicians and patients alike.

How Telehealth Works

There are many ways in which IME’s can take place.

  1. Interview Based
    .
    This takes place either via telephone or video conferencing. This may be conducted for either psychiatric or physical assessment. This includes a preliminary review of medical records as provided and the conduction of an appointment style examination.
  1. Interview based with supporting Allied Health provider under supervision and direction of specialist
    .
    Like an interview-based appointment, however, in this circumstance an allied health worker is physically present with the ‘patient’ during the examination and under the direction of the specialist conducting the physical examination.
  1. Unsupported physical examination whereby the specialist conducts the examination
    .
    Again, similar to the above, though in this circumstance there is no one physically present. The specialist in this circumstance make visual observation and guides the ‘patient ‘ to undertake movements for virtual assessment of tenderness, gait and other necessary observations that are required to be addressed to determine a claim, required payment (from insurer), resolve the particular dispute and or support the claimant back to work / functioning capacity.

OMB Goal Coast solicitors work closely with health care providers to ensure that you are the centre of care and your workers compensation claim or personal injury matter is a smooth experience. We here at OMB will ensure that you are provided with the best available treatment providers and, if needed, your independent medical assessment is conducted within the comfort of your own home.

For more advice, please contact a member of the OMB Insurance team to speak with one of our friendly staff and discuss how we may be able to assist you.

Public Liability

9 Reasons why you should get Legal Advice if you Suffer an Injury in a Public Place

By | Articles, Compensation, Insurance

If you have suffered an injury whilst out and about and are considering your options and what to do next, here are 9 reasons why you should consider seeking legal advice to assist you in seeking compensation:

  1. It is not as simple as simply taking someone to court

In Queensland, the legal process which may need to be followed after someone has suffered the injury in a public place is set out in the Personal Injuries Proceedings Act 2002 (QLD) (‘the Act’).  The Act provides a number of ‘Pre-Court’ procedures that must be followed before you can step foot in a courtroom. These procedures can be extensive so it may be helpful to seek legal assistance.

  1. You have to act fast

If you have suffered an injury in a public place or as an invitee on a premises, Section 9 of the Act provides you with nine (9) months to serve the person who caused your injury (‘the Respondent’) with a Notice of Claim. The nine (9) month period will begin from the date of the incident which caused your injury or from the date you first begin to suffer symptoms from your injury. If you do not give the Notice of Claim within this time, you will be required to provide a reasonable excuse for the delay. If you decide to seek legal advice, a Notice of Claim must then be provided one (1) month after you have instructed a lawyer to assist you. We do recommend that you seek legal assistance when drafting your Notice of Claim.

  1. The Respondent may raise issues with the Notice of Claim

Following receipt of the Notice of Claim, the Act provides that the Respondent must provide a response to confirm whether they consider themselves to be a proper respondent (Section 10) and whether the Notice of Claim complies with the requirements of the Act (Section 12). We recommend seeking legal assistance to make sure you take the correct steps and can provide an appropriate reply, to any response suggesting that the Respondent is not the proper respondent or that the Notice of Claim is not compliant.

  1. The Respondent may argue that they are not liable for your injuries

After you have provided the Notice of Claim, Section 20 of the Act, allows the Respondent six (6) months to investigate the incident and provide a liability response. The liability response will give notice as to whether the Respondent admits liability for the incident or denies that they should be held responsible. The liability response should also contain an offer to settle your claim reflecting the Respondent’s position.. Should the Respondent deny liability, you will be required to gather evidence justifying why they are liable and should be required to pay you compensation for your injuries.

  1. You will have to provide evidence of your injury

In order to receive compensation for a personal injury, you will be required to gather evidence showing what injury you have suffered and how it has affected you and your health and day to day life. This will include obtaining medical records from any and all medical treatment providers (doctors, specialists, surgeons) you have attended both before and after the incident. You also may consider undergoing an independent medical examination to further illustrate the injury you have suffered and how it has affected you. Seeking legal assistance can help you gather these records and consider what evidence you may need to evince your injury.

  1. You must comply with the disclosure

During the course of the ‘Pre-Court’ procedures, you and the Respondent will be required to comply with disclosure obligations. This means that you must provide the Respondent with documents you obtain that are relevant to the facts in issue to your claim. Failure to comply with these obligations can be considered by the courts and negatively affect your claim. We recommend seeking legal assistance to ensure any evidence gathered is disclosed in accordance with your obligations.

  1. You will have to attempt to resolve your claim out of court

Before you are able to commence a proceeding in court, the Act requires you to attend a compulsory conference or a mediation with the Respondent – or give the reason as to why it is not appropriate. The compulsory conference will allow both parties to present their case and attempt to settle the claim through exchanging offers of settlement. We recommend seeking legal advice to assist you in participating in a compulsory conference so that your case is presented as best it can be and appropriate offers of settlement are exchanged.

  1. You can run out of time

In Queensland, you only have three (3) years to complete the ‘Pre-Court’ procedures and commence legal action in the courts for the personal injury you have suffered. This three (3) year period usually begins from the date your action arose, being the date of the incident. Occasionally, it may begin on the date your injury manifests, but at times, this distinction can be difficult to navigate. This limitation period is provided in the Limitation of Actions Act 1974 (QLD) and can only be extended under limited exceptions. The three (3) year limitation period also applies if you have suffered an injury in a motor vehicle accident, work accident or medical incident. It is important that you commence proceedings before this period lapses.

  1. Obtain legal assistance from a supportive and skilled professional

Instructing a lawyer to assist you to navigate the ‘Pre-Court’ procedures provided under the Act will allow you to obtain advice from an industry professional, interested in your claim and eager to assist you following your personal injury.

We recommend seeking legal advice if you suffer injury so that you can be assured your claim will follow the ‘Pre-Court’ procedures and requirements set out in the Act. Contact a member of the OMB Insurance team to speak with one of our friendly staff and discuss how we may be able to assist you.

Australia's non-fault family law system

From Fault to Fault-Free – Australia’s Non-fault Family Law System

By | Articles, Family Law

The focus of articles such as those in the Courier Mail regarding the separation of Wally and Jackie Lewis draw attention to factors which have long been replaced in the Family Law system – see Wally Lewis: Secret betrayal that tore Lewis family apart | The Courier Mail.

References to alleged affairs of long or short term duration are a constant factor in any reporting of celebrity divorces. And the reality is, is that from a legal perspective, these factors are irrelevant, but for selling your gossip magazines it’s a different story.

Prior to 1975 in Australia, should you wish to get divorced, you would have had to establish one of 14 grounds included into the Matrimonial Causes Act, these included:

  • Desertion
  • Adultery
  • Habitual drunkenness
  • Cruelty
  • Insanity
  • Imprisonment

Gaining evidence of any of the divorce grounds was a cloak and dagger exercise, involving private investigators and other covert methods.  This fault base or moralistic approach was deeply rooted in the religious principles underpinning marriage in that era.

However, come the 1960’s those moralistic and religious viewpoints had become out of sync with modern Australia.

A huge groundswell movement emerged in the 1960’s which shifted the viewpoint on marriage and during this time the increasing numbers of defacto couples increased also.

Fast forward to 1972 the then Whitlam Government introduced a series of reforms including those proposed to the laws pertaining to divorce and “custody” as it was then known as.

In 1975 the Family Law Act was passed into law, with a firm majority of votes (80-41).  The Family Law Act introduced “no fault” divorce and boy did Australian’s take to the changes. A massive surge in divorce applications occurred after the passage of the Family Law Act and the court has effectively been swamped since that day.

In order to obtain a divorce pursuant to the Family Law Act, all that is required to be established is that the marriage has “irretrievably” broken down for a period of 12 months prior to the application being made.  The Court does have to consider whether or not appropriate arrangements are in place for children under the age of 18 as part of the consideration of the divorce Application.

Conduct issues in family law are mostly irrelevant. There are but a few exceptions to this standard position. Whilst it is entirely understandable that the reasons for the end of your relationship have a massive emotional impact, as your advisor, it is our job to ensure that your matter is conducted in a way that complies with the case authorities and relevant legislation.

So in 2021, your divorce application will look dramatically different to how it would have pre-1975, remembering that an Application for Divorce is an entirely different legal process to the division of assets and reaching an agreement, however again fault or conduct issues become relevant in limited circumstances.

Strategic and resolution focused advice is what OMB Family Law is all about. If there are relevant conduct issues which will impact the division of your assets or the living arrangements for your children, then we will provide you with clear advice on how those issues are relevant and the impact they will have.

Contact Gold Coast Divorce Lawyer on 5555 0000 or via our website www.omb.com.au for a free initial discussion.

A person's best friend – their pet!

A Person’s Best Friend – their Pet!

By | Articles, Body Corporate

The “war” regarding pets within bodies corporate has been seething for a long period of time.

This “war” continues as a result of a recent case in NSW. I am not going to bore you with the details of Cooper’s case1 as they have been widely reported and commented on in other forums2.  If you would like to, you can read the full 55-page decision: see footnote.

However, this NSW Court of Appeal decision is not just another “dog case”. What I particularly want to discuss in this article, is what guidance can we obtain from the judiciary regarding by-laws and how do we implement that guidance in the future?

Due to the Covid-19 pandemic, people have been spending a lot more time in their residential accommodation and consequently, everyone wants a pet!

In NSW and VIC, walking an animal became one of the few outdoor activities that was tolerated under the restrictions. For people’s mental health, the joy of keeping a pet in their residential accommodation has been a priority to many.

So how does this impact within our Strata world? Basically, more people are seeking to have a pet (or two) within their scheme.

As a consequence, all bodies corporate (through their committee) should look at the wording of their “pet/animals” by-law and ensure that it is suitable for their scheme.

How do you enforce a pet by-law?

The starting point is to make sure your by-laws are drafted properly. The Judges in the Cooper’s Case were critical of the language used in the pet by-law (ie, how the pet by-law was drafted), but their comments went even further. Specifically, stating “the language of S136(1) is awkward” – see below:

“1363  Matters by-laws can provide for

      1. By-laws may be made in relation to the management, administration, control, use or enjoyment of the lots or the common property and lots of a strata scheme.
      2. A by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law.

The subject matter of the by-laws appears to be three functions (management, administration and control) operating in relation to specified subject-matter (lots, or common property and lots, within a strata scheme).”

The language is deemed “awkward” because it does not aid the drafter of by-laws. Can I really draft a by-law that impacts on the “enjoyment of a lot”? I think not.

Although the Judges were commenting on NSW strata title laws, these are very similar to the laws in our QLD legislation. As a result, the Cooper’s Case provides us with guidance regarding how to draft a valid and enforceable by-law.

The starting point being that a lot owner’s indefeasibility of title with respect to the right of what they can and cannot do within their Lot must not be constrained by the power to make a by-law.

In other words, a by-law cannot impact on the individual rights of lot owner. By-laws are a necessary and useful tool within a Body Corporate to assist the committee in regulating common property activities and the relationships between owners, residents and other stakeholders in a scheme. By-laws need to be carefully drafted and should not simply be copied from someone else’s scheme. Also, by-laws should not deal with (or be reactive to) a one-off situation.

By-laws cannot ban pets

Once you have a well drafted pet by-law, if a resident (owner or occupier) would like to keep a “pet”, then it will make a “pet” application to the committee. Due to Cooper’s case, the committee will actually need to properly consider the application on its merit.

When we are dealing with dogs, the committee will also need to consider other legislation. For example, if a person has a recognised disability under the Guide, Hearing and Assistance Dogs Act 2009 (QLD) and relies upon the animal for assistance, the person does not need to ask permission before bringing a guide, hearing and/or assistance dog into the Body Corporate.

Certified guide dogs (either in training or fully trained) with their approved handlers have the right to enter public places, public passenger vehicles and places of accommodation. This includes shops, cinemas, cafes, restaurants, clubs, holiday accommodation, rental accommodation, Body Corporate buildings, taxis, planes, public transport and entertainment and sports venues.

The Guide, Hearing and Assistance Dog Act 2009 protects these rights and imposes penalties for people (including bodies corporate) that breach this legislation.

For a committee to appropriately identify a certified dog, look for the round blue and white cloth badge and/or harness for guide, hearing and assistance dog’s (there may also be other dog badges or brandings).

An approved handler (including those who have an alternative handler helping them to physically control the dog), trainers, and puppy carers, accompanied by a certified dog or dog in training must always carry an approved guide, hearing and assistant dog’s identify card.

It is for the committee and lot owners to understand that certified guide dogs, hearing dogs and assistance dogs are governed and protected by the Guide, Hearing and Assistant Dogs Act 2009 (QLD) – please ensure these individuals and their animals are protected from discrimination.

Concerns abouts pets

Owners and occupiers often have a range of concerns about having animals (including dogs) in a Body Corporate.  The main issue for a Body Corporate appears to be the likelihood of a negative impact upon the common property or maybe a person living at or visiting the Body Corporate.

In my view, the majority of these genuine concerns of Lot owners can be appropriately addressed and eased by setting reasonable conditions within the by-law.

What about a companion animal?

A “companion” animal is very different to a certified or approved assistant animal.

An emotional support animal (including a dog) provides support through companionship and it can help ease anxiety, depression and certain phobias.  A guide dog (which is a service dog) is generally allowed anywhere the public is allowed.

However, Emotional Support Animals (ESAs) are not.

For example, ESAs generally cannot accompany their owners into restaurants or shopping malls.

ESAs refer to dogs and other pets that provide emotional support and comfort to their owners on a daily basis.  ESAs legally must be prescribed by a licensed mental health professional like a therapist, psychologist or psychiatrist.

Service dogs (i.e. guide dogs) have been trained to perform specific tasks for individuals and as such are usually granted access to go anywhere their owner goes.

This is different to an emotional support animal because it does not require any specific training.

Where to from here

Dealing with a beloved family pet requires the Lot owners and a Body Corporate Committee to be fair, compassionate and objective.  Obviously, the starting point is having an appropriately well worded, delicately drafted by-law.  Pursuant to the by-law, an owner, occupier or a guest (in other words any invitee) to the Body Corporate will be entitled to have their guide, hearing and assistance dog on-site to assist the person with the services for which the dog has been trained.

This is very different to the position where the invitee to the common property of the Body Corporate has a companion pet.

The Lot owner or occupier who has the companion pet will need to complete an appropriate pet application and such a pet will be subject to the same conditions as all other residents within the building.

For the purposes of our Queensland Body Corporate Legislation, there is no difference between a treasured family pet and an emotional support animal.

OMB Solicitors specialises in acting for bodies corporate and preparing well worded and delicately drafted by-laws. If you require any assistance with your by-laws, please do not hesitate to contact our Gold Coast Solicitors.

——————————————–

1 https://www.caselaw.nsw.gov.au/decision/1750ba2de664989200f239fb

2 Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250 (23 September 2020)

3 Strata Schemes Management Act NSW

Important Updates to the Powers of Attorney Act

Important Updates to the Powers of Attorney Act

By | Wills and Estates

The Powers of Attorney Act 1998 has recently been amended to make updates to the existing Enduring Power of Attorney (EPOA) and Advanced Health Directives (AHD) forms.

What do the changes mean?

If you have a current valid EPOA and/or AHD – no changes are required. They are valid and will remain valid going forward unless a change in circumstances or amendments is required.

The current (but very soon to be outdated) EPOA and AHD forms can only be signed up to midnight 29 November 2020.

The new EPOA and AHD forms come into effect from Monday 30 November 2020. The old forms must not be used and if they are signed after 30 November 2020 they will be invalid.

If you require amendments to your current EPOA’s or AHD’s, then they cannot be amended by hand or a written variation and the new format EPOA and AHD forms must be used from 30 November 2020 onwards.

Other relevant changes to the legislation include if you do not have a financial attorney nominated on your EPOA then your spouse, child, next of kin etc cannot act as your financial attorney. Effectively, you will be in a legal black hole in risk guards to financial matters.

Queensland has now recognised New Zealand EPOA’s and they can be registered with the Queensland land titles office. Unfortunately, the reciprocal arrangement does not apply for Queensland EPOA’s are still not recognised in New Zealand.

Finally, remember as from Monday, 30 November 2020 you must use the new format EPOA and AHD forms.

If you have any questions whatsoever about the new EPOA or AHD, please make a time to see one of our Estate Planning Experts at OMB Solicitors.

Christmas Hints

Helpful Holiday Hints for Separated Families

By | Articles, Family Law

“It’s the most wonderful time of the year….” Or so the Christmas song goes.

But statistically, this is not always the case for families under stress. The period immediately preceding Christmas and post-Christmas often causes such stress that pre-existing problems are brought to the surface and relationships often end.

The desire for a fresh start in the New Year or just getting through “one more Christmas” often prompts parties to consult with Family Lawyers regarding separating before or after the holiday period.

If you have separated, it is very important that as parents, we shield our children from as much of the adult issues as we can. Children observe and take in much more than we give them credit for. They pick up on stress and conflict through observations of actions, moods, and direct conflict.

When it comes to children’s arrangements, the Court’s will always make an Order which it considers to be in the child’s best interests.

Whether this is sharing Christmas Day or alternating it between parents is entirely subject to the individual aspects of each case.

OMB Family Law’s gift to you is our “helpful holiday hints” – namely some things to consider in the lead up to the festive season and when you are discussing and hopefully agreeing on the arrangements for your child or children and other family law matters this holiday period:

  1. Christmas is for and about children, let them enjoy it, free from the worry of their parent’s conflict.
  2. Christmas can cause conflict and anxiety in even the happiest of households, so if there are conflicts in your relationship with the other parent then it is your responsibility to do all that you can to ensure that the children are not exposed to conflict or adult disputes;
  3. The arrangements for Christmas Day must be child focused, not parent focused. Your “need” as a parent to see your child or children on Christmas Day is secondary to the best interests of your children and in all reality, of little concern or interest to the Court.  Christmas is only one day of the year and whilst it may be nice to be spending it as a family, life does not always work that way. Be the adult and be child focused.
  4. Try to communicate with each other about present(s) for the children to ensure that there is a consistent approach on type of present and there is no double up.
  5. If you can, make sure arrangements for the special days are resolved well before the holiday period, as your advisors and the Courts will close in the days leading up to Christmas. This enables the stress levels for all concerned to be managed as well as enabling plans with immediate and extended family to be made.
  6. The capacity to bring a matter before the Court prior to Christmas is quite difficult as there is, notoriously, a lot of families which need court intervention prior to the Christmas period. Bear that in mind when trying to resolve matters.
  7. If you cannot achieve a Court order prior to Christmas, then a Parenting Plan is the best option available to you. A parenting plan, whilst not a Court Order which carries differing levels of enforceability and consequences for breach, is still a written agreement which the Court will consider if needs be. As the old adage says, “anything is better than nothing”.
  8. Do not sweat the small stuff, pick your battles, rise above it – all of those colloquialisms apply best at Christmas. It is not the time to worry about someone being five minutes late to changeover or if the kids go on (and on and on) about a present from their other parent.
  9. Be generous and kind if you can. If you are in a better financial position then your spouse, do not put the squeeze on them financially (ever but definitely not at Christmas).  They are the person you chose to have a family with and being difficult financially will only affect your children, in the long run.
  10. Plan for things going wrong. A dream Christmas would be perfect, but we don’t live in a perfect world and there are no perfect parents (sorry to say!).  Small issues should be noted down and raised with your advisor in the new year. Big issues – significant breaches, family violence or risk factors from alcohol consumption – need to be addressed more urgently and if needs be, contact the Police to ensure your and the children’s safety is protected.
  11. Get advice early. Your family lawyer is a human too – they likely have family of their own and need time to rest and relax so that they are refreshed and available to you in the New Year. If a matter is urgent then, like us at OMB Family Law, they ought to be available to you via email, but otherwise decide to have your meetings well prior to their Christmas closure. Again, if personal safety is at risk, then call 000 without delay.
  12. Finally, remember what Christmas is truly about – love, family, friendship, and gratitude for being in the best country around. 2020 has posed many challenges for our day to day Aussie life.  Take time this year (and every year) to truly remember the meaning of the holidays.  It is not a time to focus on winning against your ex, who is getting the kids the best presents or having the best holiday.  Kids just want their parents and deep down the competition is likely to just make them sad.

From the OMB Solicitors to yours, may your holiday season bring you happiness (or at least as little conflict as possible), rest, and relaxation?

Our office is open until 23 December 2020 for any family law issues that may arise prior to Christmas and is available for urgent issues over the holidays.

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