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Family Law

What is the Family Law PPP500 List?

By | Articles, Family Law

In response to concerns about delays in the Family Court system, particularly for matters with a small asset pool, the Federal Circuit Court has developed the Family Law Priority Property Pool 500 List (PPP500).

It is a specialist list designed for matters where the net assets of the parties including superannuation is or is likely to be less than $500,000.  Additionally, there must not be any Trusts or Corporate Structures which would require expert investigation and the matter cannot involve any other aspect of Family Law, such as parenting or child support issues.

The PPP500 has specialized case management processes comprising:

  1. Registrar led resolution where couples are assisted in reaching agreement in the shortest possible time; and
  2. Short form Judge managed lists which apply a procedurally simpler process to the determination phase of a matter.

Close monitoring and scrutiny will be had of compliance with orders for disclosure and valuation with a focus on reducing delays and provide the parties with expanded opportunities to take ownership of their dispute resolution.

The two phases of the PPP500 proceed, in a general sense as follows:

In the PPP500, the usual requirement for filing of an Affidavit and Financial Statement is dispensed with, resulting in the costs to commence proceedings being greatly reduced.  There is a specific PPP500 Financial Summary document which is to be filed at the time of filing the Application or Response.

Stages 1 – 4 set out above are expected to be completed within 90 days of filing where possible and the trial process is expected to be conducted promptly and if possible without the need for traditional trial (which results in delays).

The process is expected to and has to date, produced expeditious and effective results in matters which are simple and have asset pools which are not conducive to lengthy delays in the Court system which would result in the asset pool being eroded by significant legal fees.

Of course the process requires practitioners and parties who are focused on resolution and focusing on the big picture rather than the small minute details.

How can OMB Family Law help?

At OMB Family Law our focus is on prompt and efficient resolution of matters which result in parties exiting the Family Law system without lengthy delays.  With strategic and pragmatic advice we will guide you through your property settlement matter and recommend the use of the PPP500 where appropriate and necessary.

lighthouse project

What is the Lighthouse Project?

By | Articles, Family Law

In August 2020, the Family Law Courts (the Family Court and Federal Circuit Court) launched The Lighthouse Project, being piloted through a handful of Registries, of which Brisbane is one.

It is the Court’s recognition that the intersection between Family Violence and the Family Law system is complex and requires specific and detailed attention.

The Lighthouse Project is a screening and management program to assess risk to families within the system and having a focus on improving outcomes for families in the family law system.

The project involves:

  1. Early Risk Screening through a secure online platform

When an Application for Parenting Orders is filed through the online court portal, the parties will be asked to complete a confidential and secure questionnaire via the Family DOORS Triage. 

  1. Triage

The Family DOORS Triage system has been specially designed for Family Law and considers a range of safety risks that arise frequently in family law matters.  The answers to the questionnaire are referred to a highly skilled team of family counsellors who will assess risk as being HIGH, MEDIUM and LOW risk.

High-Risk cases will be referred for immediate action through a video, telephone or face to face conference with a family counsellor.   The Counsellor will provide a detailed risk assessment, safety and wellbeing plan for the person and referrals to appropriate support services.

Medium Risk cases will be offered safety planning and service referrals and will be considered for a range of case management pathways based on the individual needs of the case.

Low-Risk cases will be processed through court-ordered dispute resolution.

  1. Case Management

After assessment through the Family Doors Triage system, the matter will be dealt with by a dedicated team of highly skilled professionals including registrars, family consultants and support staff with specialized training in family safety risks and family violence.

  1. The Evatt List

Those families assessed as being High Risk and most vulnerable will have their matter managed through the Evatt List which focuses on early information gathering and intervention, through a judge-led support team.  This team will have specialized training and experience in working with families who are at high risk.

Why The Lighthouse Project?

It is the Court’s response to calls for the family law system to deal with family violence and risk better.  These calls have been made in a number of reports and commissions over the last 10 years.

It is a detailed and dedicated response to a growing crisis in our community, with statistics showing that women, men and children are at increased risk of death or injury at the hands of their partner or parent.

How can OMB Family Law help?

When taking instructions from you, concerns about family violence and risk of abuse and harm are discussed such that we can assess the best way to proceed with your matter.  Upon receiving instructions from you to commence proceedings we will work with you to complete the necessary screening questionnaire through The Lighthouse Project and be with you every step of the way through your parenting matter.

Protecting a child through a “No Time and No Communication Order”

By | Articles, Family Law

Extreme behaviour resulting in extreme orders

The Family Law Act states clearly that a child has a right to know and have a relationship with each of their parents.  However, there are some circumstances within which having that relationship will cause a child more harm than good.  That harm can be emotional, physical, sexual, or psychological.

Most often the Court protects children from risk of harm through supervision of their time with the parent whom they consider poses a risk to the child.  However, in rare circumstances that protection can only be afforded through a “No Time” Order.

The Family Court at Brisbane on 29 June 2020 made such an Order and additionally declared the Mother a “Vexatious Litigant” which is another rarely used power.

The matter of Taggart & Taggart (No2) [2020] FamCA 520 came before the Family Court of Australia for final hearing after some 6 years of constant litigation.  It was listed in the height of the COVID-19 restrictions but was a matter the Court determined needed to proceed and in person.

At the outset it is important to note that the Mother chose not to participate in the trial.  She did not file material.  The parties were advised prior to the trial that personal attendance was required, and that appropriate and safe physical distance measures were to be put in place by the Court.  The Court determined to proceed in the mother’s absence with Her Honour’s judgement clearly confirming why that occurred.

The facts of the matter are colourful to say the least and we will not repeat verbatim some of the words used by the Mother, but it is important to know the background in order to understand why Her Honour Justice Carew determined the matter as she did.

  • There was one child the subject of the dispute, a boy who is 11 years of age. The parents had been involved in litigation regarding his care since he was only 5 years of age.
  • In September 2016, an Order was made providing for the Father to have sole parental responsibility, for the child to live with him and spend time with the Mother.
  • The Mother never accepted that outcome and because of two instances of her withholding the child from the Father, in October 2018 an Order was made for the Mother’s time to be supervised.
  • From October 2018 until March 2020 the Mother spent only one occasion of supervised time with the child.

The Court was tasked with considering the following issues for determination:

  • Is the child at an unacceptable risk of harm from the Mother given her views of the Father and his family?
  • Would the mother return the child to the Father should she have time with the child?
  • What would be the impact on the child if he had long term supervised time with the Mother or no time or communication with the Mother?
  • Should the Mother be declared a vexatious litigant?

As a result of the Mother’s failure to attend, the Court considered this as effectively an application to adjourn the trial.  This Application was denied for the following reasons:

  1. The Mother failed to file any material, begging the question of what involvement she proposed to have in the trial in any event.
  2. The Mother made no formal application for adjournment nor provided any evidence of her particular risk or vulnerability to COVID-19.
  3. At the time of hearing there was only 5 active cases of COVID-19 in Queensland.
  4. There was no public health directive prohibiting the parties attending at Court.
  5. At the first date of trial Queenslanders could attend restaurants, hotels, and travel on public transport.
  6. Safety measures had been put into place.
  7. The interests of the child were such that a long history of litigation had to be ended.
  8. Electronic means of conducting the matter were not considered appropriate.
  9. The Father who was privately funding the matter and the ICL opposed the adjournment.

Thereafter Her Honour considered each of the issues for determination.

In the 2016 judgment the Court found that the Mother and her family had a highly negative view of the Father and they ere unable to hide those feelings. In fact, the Mother and her family had nothing positive at all to say about the Father.

At that time, the Family Report noted the mother as saying

  • He should get out of our lives
  • Just leave us alone and go away

Not surprisingly the Family Report concluded that the Mother was willing to make regular derogatory and denigrating statements that demoralized the Father’s person, suggesting her behaviour is regular and comments without restraint.  In possibly the most unhelpful move for a litigant she referred to the 2016 trial Judge as “a piece of crap” in the Family Report and in court events.

The first time the mother saw the child after the 2016 judgement she took him to the Police complaining of him being beaten by the Father.

In 2018 two recovery orders had to be made against the Mother who withheld the child from the Father and from school.

The Mother does not accept the child’s medical diagnosis and indicated to the Contact Centre that she was not going to follow the necessary dietary requirements.  She also advised the Centre that one of her goals for supervision was to “prove to dickhead” that she did not need supervision.

When the Mother finally saw the child in 2020 she threatened to punch the Centre coordinator in the face and levelled vile and expletive riddled abuse at staff, including on an occasion she thought her son was inside the Centre. Thankfully, he was not.

The 2020 Family Report opined that the Mother’s anger is unrelenting and entrenched. She does not trust the Father; she sees nothing positive in him.  She had no insight as to why her time was being supervised and blamed the Court. The Court was asked to find the least detrimental alternative for the child, calling the current situation a “life tragedy” for the child.

Her Honour Justice Carew concluded that supervision would not ameliorate the risk to the child.

Unsurprisingly the Court found that the Mother would undoubtedly fail to return the child if she had unsupervised time and that long-term supervision was not appropriate.

Sadly, then the Court turned to the impact on this young man of not seeing nor speaking with his mother. Her Honour, with much sadness we have no doubt, concluded that this child will grieve for his mother but it was a case wherein he could not have a relationship with both of his parents in person or via any form of communication.

Finally, of the Court’s own volition it turned to the question of a Vexatious Proceedings Order pursuant to s102QB of the Family Law Act.  The judgement helpfully considers all the relevant authority in this regard, and having considered the authority and:

  1. The Mother’s 20 almost entirely unsuccessful interim applications from 2015 to the 2020 trial; and
  2. The Mother’s two appeals either abandoned or dismissed by the Court with costs

The Court declared the Mother vexatious requiring her to firstly seek leave of the Court pursuant to s102QE before being able to commence any further proceedings.

This matter involved the most extreme of behaviour on the part of a parent. In this matter it was the Mother, in other’s it is the Father, or the grandparent or other caregiver. However, it shows clearly that the Court does not distinguish between the gender of poor behaviour and will ultimately make tough decisions for the benefit of the child.

Child Support

Covid-19 and Binding Child Support Agreements – When Binding simply cannot be Binding

By | Articles, Family Law

When parents seek to formalize their child support matters, it is becoming increasingly common for them to have certainty and security in that regard and for this reason, Binding Child Support Agreements are sometimes considered an agreement of choice.

A Binding Child Support Agreement enables parents to effectively oust the jurisdiction of the Child Support Agency and document their own private arrangement about how much child support is to be paid, and the manner in which it is paid. Payments can be made directly to schools, or activity providers and include apportionment of Private Health Insurance and other medical expenses in lieu of (or in addition to) a cash payment.

Provided it complies with relevant statutory requirements, a Binding Child Support Agreement is most difficult to set aside.  Those requirements are as follows:

  • It must be in writing, signed by both parents and/or the eligible non-parent care giver
  • It must include a statement that each party has received independent legal advice as to the effect of the agreement on their rights and the advantages and disadvantages of the agreement, such advice having to be provided prior to the signing of the agreement.
  • It must include as an annexure, a certificate of advice from the relevant legal practitioners.

Once prepared and executed correctly, the limited circumstances within which a Binding Child Support Agreement can be set aside by the Court (of course unless the parties agree to set it aside) if the Court is satisfied that there are:

  • Exceptional circumstances
  • Which have arisen since the agreement was made
  • Which would mean a party to the agreement or a relevant child will suffer hardship if it is not set aside.

The current COVID-19 Global Pandemic and its resultant economic effects will undoubtedly be impacting the capacity for many parents to pay Child Support, whether because of a Binding Child Support Agreement or pursuant to an Assessment or a private arrangement.

This exact circumstance brought parties before the Family Court of Australia in June 2020 with a judgment being delivered by Justice McClelland this month.

In the matter of Martyn & Martyn [2020] FamCA 526 the following circumstances were presented to the Family Court:

  • The parties had entered into a Binding Child Support Agreement which was dated 16 August 2012.
  • On 13 January 2020 the paying parent, the Father, applied to the Court to set aside the Binding Child Support Agreement pursuant to s136 of the Child Support (Assessment) Act 1989.
  • The Father owned and operated a business which supplied products to internationally based businesses.
  • As a result of the COVID-19 pandemic and the effect on international commerce, the Father’s business was functioning at a significantly reduced capacity.
  • The Father had acquired the business in 2015 with high hopes and dreams.
  • As early as August 2016 the Father indicated an intention to seek to apply to reduce the amount of Child Support payable.
  • There were proceedings commenced in the Federal Circuit Court in October 2016 within which various Orders including a stay on collection of payments pursuant to Agreement (provided that the Father pay a reduced amount per month).
  • By 2019 the Father’s business began to recover, however come May 2020, the Father deposed to the impact of COVID-19 on his business which was 90% based on manufacturing for international businesses. He indicated that all international orders were cancelled effective 27 March 2020 and by April 2020 he could not afford (on his case) any more than $120 per month by way of Child Support.
  • The arrears recorded by the Child Support Agency (based on the original agreement) was $31,928.22 as at May 2020. The Father sought to have the Court discharge these arrears.

The Court in Martyn explored what is meant by “exceptional circumstances” and “hardship” in determining the application.  His Honour noted that the authorities confirm:

  • We must construe exceptional as an ordinary adjective, not as a term of art. Out of the ordinary course, unusual, special or uncommon.  It need not be unique, unprecedented or very rare, but it cannot be one that is regularly, our routinely or normally encountered.

And what about “hardship”:

  • The concept involves a “hardness of fate or circumstance; severe suffering or privation”. Something more burdensome than “any appreciable detriment”.

Turning to the Father’s circumstances, the Court also turned its mind to a suspension of the Agreement rather than its termination, which was open to it.

In finding it appropriate to set aside the Agreement, rather than suspend it, the Court determined (at paragraph 72):

I decline to exercise a discretion to suspend rather than set aside the Agreement because there is an understandable absence of evidence as to the likely duration and impact of the COVID-19 pandemic on international commerce. In other words, it not possible to determine, on the basis of the evidence before the Court, whether it is likely that the father’s business would recover to the extent that he is capable of satisfying the obligation imposed upon him pursuant to the Agreement after any period of suspension.

In relation to the arrears component, the Court was not minded to discharge those amounts as it would effectively mean the Court would have to find that as at August 2017 (when the reduced payment was ordered by the Federal Circuit Court) there was in existence exceptional circumstances causing hardship.  Having found that the exceptional circumstances pertained to the current COVID-19 pandemic, the Court declined that Application.

It is important to note that the Mother conceded the current financial crisis the business was in as a result of COVID-19 and the hearing was still required in order for the Court to make the Order, particularly with respect to the arrears.

This case will be one of many, in our view, in the near future regarding this and other compliance issues to do with property matters, arising as a result of these unprecedented times.

family law

Resolution – All you need is the will and wherewithal

By | Articles, Family Law

In my frequent review of recent Family Law decisions of the Family Law Courts (Federal Circuit Court and Family Court of Australia) I stumbled across a first instance decision of Judge Neville of the Federal Circuit Court of Australia sitting in Canberra. It was interesting more for it’s discussion of three broad issues, rather than its outcome and those issues were:

  1. The critique of the lawyers and counsel for failing to comply with procedural orders, Practice Directions and for failing to perhaps progress the matter towards a resolution rather than “box on” in interim proceedings;
  2. The critique of the parties for their total immersion in effectively seeking to destroy the other; and
  3. The suggestion that the parties progress towards arbitration to resolve their matter.

For the law nerds out there, the link to the judgement is here. The critique of the lawyers carried with it a little more venom in circumstances whereby the Court had vacated the proposed trial dates due to Covid-19 restrictions but allowed the indulgence of the use of one of those dates for an urgent interim hearing, conducted by Video Link.

The matter involved the following issues:

  1. Interim parenting arrangements for two teenage girls in circumstances whereby they were considered to have been enmeshed in the proceedings by the mother and are estranged from the father.
  2. Interim property distribution and spousal maintenance; and
  3. A consideration of the failure of the lawyers to comply with orders and directions and how perhaps the parties can better focus to resolve the matter.

Parenting Matters

Sadly, this case involved two young girls of 13 years and 11 years of age respectively, who were completely embroiled in their parent’s dispute.

His Honour commented of this dispute, describing the parents as continuing “to fight, bicker, vent a range of deeply felt emptions and otherwise remain deeply embroiled in a very bitter and inexorably expensive contest”. And that the children were caught up in the maelstrom.

When pondering why children may continue to be “upset” in these circumstances, His Honour noted that the answer did not require “mystical revelation” and suggested the parents should sacrifice some of their contest in order to resolve matters for the sake of their children and back down from what he described as their “fight to the death” at whatever cost (financial, psychological and emotional) for them and their children.

Urging the parents to hear the “plaintive pleas” from their children and do whatever it takes to resolve matters.

It was apparent from the children and parent’s comments to the Family Report Writer that they were fully aware of the financial issues between the parents and the Mother’s opinion of the Father. The dispute was causing the 10-year-old to self-harm, and not even this could force the parents to put down their weapons and seek to resolve matters. “Mum told us he wanted the expensive furniture”, “Mum told us she tried so hard to keep the marriage together…she tried and he didn’t” “I would worry about her (referring to the Mother) if we saw him because it would be a lot of pressure for her”, are but a few examples of comments of a then 12 year old girl.

She went on to then say she would Kill the Judge if he made us go back there. Conversely the younger sister commented “everyone deserves a second chance” when asked about why she had recently chosen to visit with her dad. When asked about how she saw her parent’s role in her self-harming, the young girl said “I felt I had to choose sides. With all the stuff that was going on.  And so, when the police came that night, it made it easier”.

Summing up the observations of the children, Judge Neville stated:

  1. They know much more than they should.
  2. They were now “driving the parenting bus” rather than the parents; and
  3. In respect of the younger child, she displayed a maturity well beyond her years when she lamented “everyone deserves a second chance”.

If only her parents took a similar view.

When commenting on why a “let them choose” arrangement simply could not work, the Family Report writer noted that it was likely to result in the most minimal and poor-quality contact.  Why? Because the children were not free to exercise this choice outside of their mother’s pervasive influence, their need to protect her emotionally and their own internalized and distorted cognitions about their father (at paragraph 89).

The Court determined that it was “imperative” for the children to spend regular and consistent time with the Father (paragraph 112(f)) and put in place as best it could, a methodology for that to occur.

If ever there was a case to share with parties about how their behaviour could impact children of the ages these girls were, this would be one of the best in recent times, in all of its tragic glory.

Critique of the parties, lawyers, and Counsel for the manner in which they conducted the proceedings

On an interim basis, there exists a practice direction which details the number of affidavits that can be relied upon, their length and the limit on annexures.

Breach of that practice direction is at the practitioner’s risk (and the parties but more the practitioners). If leave is not granted to rely upon an affidavit in breach of this Practice Direction, then parties are required to strike out offending parts and they and their lawyers face costs Orders.

Often the Court will make directions for the filing of material and supporting submissions prior to an interim hearing. In this matter, the parties were limited to a two-page written outline addressing the issues to be determined.

The Father’s was just over two pages and leave was given for that extension.  The Mother, via her Senior Counsel filed submissions that ran to just on 7 pages. When raised with Senior Counsel, the response was that they had to be filed that way or he would have to do oral submissions on the matters. This response was described (at paragraph 20) as inappropriate, almost defiant, and presumptuous. The court noted that this conduct treated the Orders as suggestions or guidelines, which they were not. Suggestions as to how it could have been better handed by the Mother and her Counsel were made, and they are useful to take note of when reading the judgment.

Each of the parties filed affidavits in breach of the Practice Direction. Given that the listing was considered “quite an indulgence” the treatment of the Court by the parties (more directed towards the lawyers, whose responsibility it is to comply with the Practice Direction) was described as:

  • An affront
  • Poor
  • Uncontrite
  • Presumptuous

The long and the short message to parties and lawyers is simple. Comply with Orders and Practice Directions or it is at your peril.

Turning to the nature of the material filed, His Honour noted that (at paragraph 24):

There is more than an indication that neither of them can contain nor otherwise restrain detailed, voluble expression of their grief, frustration and much else besides, towards the other party.  Such feelings and all else are ventilated freely.  The consequence? A cycle of (a) accusation, response, reply and more, (b) the forwarding of these messages to the lawyers, who in turn print them out and attachment to affidavits, and (c) the parties get charged for their inability to control their pent up hostilities and other emotions.

The above may assist us all in reflecting on how matters are conducted in some circumstances.

How did the Court suggest this and other such similar matters be resolved?

The Court lamented at paragraph 129, about how much had been sent in every sense in the proceedings to date and commented that Family Law is effectively about problem solving. Even in dire circumstances committed parties and lawyers are able to craft solutions to the most “intransigent, seemingly intractable and delicate difficulties”. To do so simply needs willingness and wherewithal.

He posed the question, as I do regularly with clients “what would it be like to be free of the contest and the Court system”. It is a question that we all must put to our clients in an effort to be resolution focused.

More in the property space than the parenting matter, the Court referred the parties (and presumably their advisors) to the Australian Solicitors Conduct Rules (Rule 7) which provides that we must advise our client about alternatives to fully contested adjudication of the case which are reasonably available to a client.

His Honour made the suggestion of arbitration and when looking at when that might occur (namely prior to Christmas 2020) suggested that would be a most wonderful Christmas present to the parties and their children (having the matters resolved that is).

Arbitration is however a voluntary process and whilst it is one that OMB Family Law fully advocates it must involve two willing parties and lawyers who have the capacity to decide how to resolve their matter.

Thanks for reading what turned into somewhat of an essay I did not plan to write today.  This judgment just rang so many bells for me in a time where high conflict seems the way to go, when, as Judge Neville commented, resolution requires only the will and wherewithal to be channeled into it.

family report lawyers

Everything You Need to Know About Family Reports

By | Articles, Family Law

When you and the other parent of your child or children, cannot reach an agreement on the living arrangements for your children after separation, and you have exhausted all avenues of dispute resolution, as a place of last resort, litigation can be commenced.

How though, when a Court is faced with two parents, with different views on what is best for their child or children and different perspectives on the history of their parenting relationship, is a Judge to sift through these different perspectives and make a decision in the best interests of the children?

A Judge does not meet your child.  They know them only as a name and as they are described by their parents.  This is where a Family Report comes into play.

Arguably the Family Report Writer is the second most powerful person in your parenting proceedings after the Judge.  Why is this so?

  • They are typically the only person who will meet both the parents and the child or children outside of the court room. They have the opportunity to interact with the children and observe them with their parents and significant others.  The observation aspect of the Family Report is more often than not more impactful than the interviews.
  • They are independent. Whilst appointed by a Court or the parties (if they are funding a private Family Report), they are independent in so far as they have no vested interest in your outcome.
  • They are experts in social sciences including psychology or psychiatry in some cases. They apply different knowledge bases and influences to assist the Court, rather than the lawyers speaking of things through a legal prism.

Family Reports can be undertaken prior to any litigation processes, as a further step along the way to resolving matters by agreement.  Even though not Court appointed in that event, the report will still hold significant weight by the Judge.

So, what is this seemingly all-powerful document called a Family Report?

It is a report prepared after interviews and observations which comments on the child’s views, wishes, experiences and family dynamics.  It then ties all of those matters together and makes recommendations.  Relevant family dynamics that may be explored include:

  • Parenting capacity or incapacity.
  • Domestic and family violence.
  • Drug or alcohol use or abuse.
  • Mental health or emotional health functioning and irregularities.
  • The child’s views and wishes (subject to their age and maturity level).
  • Special needs of the child or children.
  • The extended family dynamics including grandparents, aunts and uncles, new partners, siblings, stepsiblings, or half-siblings; and
  • Relevant cultural considerations for families of indigenous origins or other foreign cultures.

Whilst very important, it is oft quoted in the Family Law Courts, “Family Report Writer’s don’t make Orders, I make Orders” or such other variation of that decree.  They are simply a piece of evidence that is assessed along with all other evidence that is accepted by the Court.

Given the significance of a Family Report, it is important to prepare for your interviews appropriately.  Some things to remember:

  1. You will be assumed to be on your best behaviour, so you don’t have to put on any more of a front than you are.
  2. Dress respectfully and speak with the Family Report Writer respectfully and professionally. They are just doing their job.  Remember that anything you say can be reported verbatim to the Court.  A memorable quote from a Family Report that I saw some years ago, which made its way into the final judgement “You can tell Judge X that I don’t care what he says he is (insert many expletives here), I am doing what I want for Child X”.  Needless to say, that litigant was not viewed in a particularly favourable light.
  3. Be mindful that it is not just what is said during your direct interview that can be included in the report. Your interactions in waiting rooms with the staff of the Writer, with your ex and their new partner or family and with your children are all likely to be being observed and form part of the Writer’s assessment of you.
  4. Do not use the interview process as an opportunity to dig a thousand knives into your ex. Behaviour such as domestic violence, drug use or poor decisions are likely to be raised by the Family Report Writer and you will have an opportunity to address those concerns at that time.
  5. Be positive about the other parent. It astounds me the number of litigants who think that it is important to say all the bad stuff in order to “win”.  It is quite the converse.  Showing that you can see the good in the other parent and speak of them with kindness when it comes to their role in your children’s lives and how that is a positive for your children will produce a fair more accurate report.  The reality is the cases that a parent has NOTHING to offer to a child are extremely rare indeed.
  6. Do not be someone you are not. Be honest and candid.  Accept when you may have done things wrong, you are human and there are no perfect parents.
  7. You do not have to present them with “evidence” to support your case. It is likely that they will have or will eventually, read the court documents but as noted above, it is likely their observations and interactions with you and with your children will be more important to a social scientist.
  8. Do not coach your children about what to do and say during the interviews. There are age appropriate resources available via the Family Court Website to assist in what to say to children and how to say it.  Coaching will be patently obvious to an experienced Family Report Writer.

Where time permits, it is important to prepare for your Family Report interviews.  An experienced and expert Gold Coast Family Lawyer will be able to speak with you openly and honestly about their concerns for how you may present during the interviews and how to best combat any worrisome behaviour.

 

family law social media

Communication Extremes, Social Media Campaigns and Family Law Proceedings

By | Articles, Family Law

How being involved in extreme social media campaigns can affect the Court’s perception of a parent’s insight and child focus.

Judge Neville of the Federal Circuit Court of Australia in Caddell & Taggard [2020] FCCA 872 (published 1 June 2020) coined a number of colloquial phrases from popular culture and history in a recent judgement regarding the living arrangements for a three-year-old girl.  From Sherlock Holmes to Chief Justice Gleeson of the High Court of Australia to describing the Father as a “sitting duck”, Judge Neville sought to assist a self-represented litigant to understand how his conduct, perceived by him as genuine and non-aggressive, was actually damaging and harmful to his relationship with his daughter.

The Father’s “zeal” in the presentation of his evidence was considered so alarming by Judge Neville that he cautioned the Father that he was considering proceeding with the matter on a “show cause basis” meaning that the Father would need to show very good reason why the Court ought not make the Orders sought by the Mother. Not shielding the Mother and her legal representatives, nor the ICL from scrutiny, the Court identified that it could have been more assisted by the ICL undertaking a more careful examination of the mother’s evidence and adopting a “less is more” approach to the cross examination of the Father.  The Court noted that when it came to the Father’s cross examination, when a nail has been “hammered into the floor, it serves little purpose other than to inflict needless damage to drive it through the floor”.

The Father was described as a self-represented litigant who was flailing and raging against an array of forces, he perceived to be marshalled against him (it was all a conspiracy according to the Father).  That is what everyone “saw” according to Judge Neville.  But he suggested that the legal representatives ought to have “observed” that there were many other forces at work, including the Father not being able to seek how significant and damaging his conduct was.  The persistent and unrelenting cross examination of the Mother’s advocate was sought to be put to an end by the Court wherein the advocate indicated she had a right to put her client’s case forward in the time that was allocated.  This was considered not appropriate by His Honour.  Confirming what most experienced family law advocates know, His Honour indicated that when he tells an advocate that the utility of proceeding with cross-examination is unnecessary or unhelpful, it was clear guidance that nothing further was required to assist their client’s case.

The Father urged the Court to consider his conduct arising because he was “frustrated” and “annoyed” but not “angry”. The Court did not find favour with this distinction, finding often that the Father was not only angry, but “infuriated”.

The Father could not see that the prolific messages to the Mother (38 on one occasion alone to ask for more time) were more than “extreme” to the Mother. When further incidents of concerning behaviors were put to the Father, he repeated his mantra that he was not “angry” just “frustrated”.

It was the Father’s social media that were his own undoing.  His posts were very candid and public including on various Father’s Rights group pages and the Father’s Rights group he, himself ran.

Judge Neville stated specifically “Lest it not be clear, I regard the Father’s social medial posts to be extremely concerning in every relevant respect”. The Court considered that his social media posts to various “Fathers Groups” clearly presented the Father as he “unashamedly” saw himself, a “crusader” for the rights of oppressed Fathers, that he was their “champion” and someone who would go to any length to ensure that his rights as a Father were not stopped or thwarted by the Mother or anyone else.

After making Orders for the Mother to have sole parental responsibility for the child and a graduated time regime, the Court implored the Father to genuinely seek assistance about how to curb his impulsive and obsessive behaviour, curb his social media posts and to seek advice from experienced lawyers not online in the forums of “aggrieved personalities”

In a Court of impression, how you conduct yourself both inside and more importantly outside of the Court building is of utmost importance.  Guidance from experienced Family Law practitioners, who can speak about who a particular course of action may be perceived is invaluable to achieving an outcome which is in the best interests of your children. Before you post remember – Is it necessary? And when in doubt do not post!

Contact our Gold Coast lawyers on 55550000 to have a free and confidential discussion about your parenting matter or any family law dispute, we pull no punches and will give you honest and strategic advice.

Parenting Dispute

What Not to Do in a Parenting Dispute

By | Articles, Family Law

Whilst there is no one fits all strategy in a parenting dispute, there are some pretty safe rules or tips I give my clients when advising them on how to ensure their outcome – negotiated (preferably) or litigated – is something that reflects the best interests of the children. 

So, here’s my parenting matters “do not do” list:

  1. Don’t trash talk the other parentChildren exposed to negative views of their parents will often feel pressure to take sides. Even if you are in another room and you think they can’t hear, think again because kids often enjoy a sneaky listen to adult conversations.  Perhaps have another channel of stress relief rather than a good old “bitch” session.
  1. Don’t make your kids feel sad for you, intentionally or otherwiseThis isn’t even direct acts of seeking sympathy it can include unintentional or subconscious behaviour such as:
    • Crying in front of the kids
    • Telling them that their mum or dad is taking them to Court
    • Saying how sad you are about the relationship being over or about having to sell the house or move out.
  1. Don’t refuse to communicate with the other parentYour kids need to see you and their other parent getting along. The Court also takes a dim view of parents that intentionally refuse to communicate, as this may cause concern that you cannot promote the relationship between the child and the other parent.  You don’t need to be best friends, just be child focussed and polite.
  1. Don’t withhold time unless there are absolutely necessary reasons for doing soThe situations within which withholding time may be considered reasonable can include:
    • Violence towards the parent or child
    • Drug and alcohol abuse
    • Risk of sexual abuse
    • Emotional abuse, including the “trash” talk referred to above (but this would have to be extreme.
  1. Don’t make up “mud” and sling it just to try to get an advantageAllegations of abuse of drugs and alcohol will be monitored with appropriate testing, such that if there is or has been no problems, this will soon be found out.  Likewise, if you do have a problem and lie about it, this too will be found it.  Truth always is the best option.
  1. Don’t split up the kids, unless there are developmental or other reasons for doing soKeeping sibling units together is of most importance, however sometimes with massive age differences (say 7 years and a 6mth baby) there will need to be arrangements put in place that are appropriate for each of their developmental needs.
  1. Don’t think you know it all and don’t have to prepare for court appointed interviews or reportsThis preparation DOES NOT involve telling the children what to say or how to act.  What it means is that you need to consult with your lawyer about what the process will involve, the types of questions that may be asked and how to critically think about your behaviour and reflect on it appropriately.
  1. Don’t engage in behaviour that will see your kids play you and their other parent off against each otherYes, children will test your boundaries, but each parent needs to adopt a consistent enough approach to rules and structure.  Absence of this will encourage them to test the boundaries in both households, seizing the opportunity to gain an advantage by making either or both parents feel guilty.
  1. Don’t involve the kids in their parent’s arguments, show them court documents or tell them about the “judge” making them do things etc.You are your child’s hero and information provided in family law proceedings is just not information your child needs to know.  This may have the effect of negatively impacting their view of their other parent, who, whilst you do not like too much right now, is still their hero.
  1. Don’t talk about “your” rights instead of focusing on the best interests of your children, even when those interests do not align with what you “want

Parents do not have rights when it comes to children. The Family Law Act makes no provision for this. Children have rights.  Deeply entrenched parental conflict can result in parent’s forgetting this. Before you make a decision to take a step or engage in conduct, stop and think about why you are doing this and how or whether it is in the best interests of your children. If it is not, then simply, do not do it.

Taking the time to consider the above will hopefully assist you in moving your parenting matter forward in the best interests of your children. OMB Solicitors family law Partner Abbi Golightly is an Accredited Specialist in Family Law and a recommended Family Lawyer for complex parenting disputes by the Doyles Guide. Using these skills and knowledge we will guide you through your parenting matter with the best interests of your children as the paramount concern. Contact us on 07 5555 0000 for your free initial consultation.

The Covid-19 List

The Covid-19 List: How to have Your Matter Listed Urgently During the Covid-19 Pandemic

By | Articles, Family Law

The latest practice direction from the Family Law Courts (the Family Court of Australia and the Federal Circuit Court of Australia) provides the “how, what, when and where” of the new Covid-19 List established to assist separated families in the Covid-19 Pandemic.

The full practice direction can be found here.

The Court has set out the criteria for inclusion on the specialist list as follows:

  1. The application must be necessitated as a direct result of the pandemic;
  2. The matter must be urgent
  3. The application must be supported by Affidavit which addresses the mandatory criteria as follows:
    1. Why it is urgent
    2. How the dispute is as a direct result of Covid-19
    3. Details of current allegations of risk (such as abuse or family violence)
    4. Details of the reasonable attempts to resolve the matter by negotiation
    5. Details of how the proposed Respondent(s) can be provided with the court documents including a current email address
    6. If possible, provide (even by way of photos) a copy of the current orders, parenting plans and family violence orders
  4. If safe to do so, you must have attempted reasonably, to resolve the dispute;
  5. The matter must be capable of being dealt with by electronic means

The list will be managed by the Chief Justice of the Family Court and Chief Judge of the Federal Circuit Court and will be present in each registry of the Court. Registrars will assess urgency, as is the normal procedure and “triage” them to the COVID-19 List Judge.

In a measure designed to ensure that truly urgent applications are dealt with urgently, the direction is that must be listed within three (3) business days or less if critically urgent.

If found to not meet the criteria for the COVID-19 List, then the matter will be allocated in the usual course of events to a docket Judge in the relevant registry.

As the list will be managed nationally and electronically, your appearance could be before any Judge in any registry around Australia. The Court will however ONLY be dealing with the discrete Covid-19 application and putting in place arrangements to deal with those specific issues.

In order to assist litigants in person particularly, the Practice Direction identifies some example scenarios as to what matters may fit into the Covid-19 List:

  1. Where the current orders are for supervised time and the relevant centre or provider is unable to supervise as a result of their closure or government requirements
  2. Where border restrictions result in the inability for parents and children to travel between homes
  3. Where parents or children have tested positive for Covid-19 or cannot fulfil their parenting obligations as a result of concerns of infection
  4. Where the risk of family violence has increased as a result of the restrictions on movement imposed by the government during the pandemic.

Gold Coast Lawyers at OMB Solicitors can assist urgently with preparation and filing of an Application for inclusion in the Covid-19 List. We have in place all necessary technologies to ensure we can meet with you electronically and attend to filing of material swiftly, such that your parenting arrangements can be managed appropriately during the current global environment.

Contact Abbi Golightly, our Partner and Accredited Specialist in Family Law on 07 5555 0000 for an urgent free initial consultation.

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Family Law and COVID-19. Your Questions Answered

By | Articles, Family Law

Confusion, concern and worry about your Family Law issues in these Covid-19 pandemic times is understandable.  Abbi Golightly an accredited specialist in Family Law and partner at OMB Solicitors offers some guidance with her COVID Q & A.

Are the Court’s still open?

Yes, however procedures have been put in place conducting hearings mostly by telephone or video conferencing. 

Will my court date still go ahead?

Yes, in the majority they will proceed although some matters which are considered “not urgent” will be adjourned to a future date, to allow urgent matters to be dealt with. 

What do I do if I feel concerned for my safety?

If you are in immediate danger, call 000.  The Court is prioritising urgent matters concerning the safety of children, dealing with them via telephone or video conference. 

I am isolating – do I have to physically go to Court?

Generally speaking, no. The Court has implemented a new “Face-to-face in-court Protocol” to ensure that social distancing requirements are strictly followed.  Contact a Family Lawyer to discuss the specifics of these protocols. 

My matter had an appointment for an interview to get a report, how will this work?

The Court will contact you to make arrangements.  Adults will be contacted by phone or video.  If children need to be interviewed, an assessment will happen about how that will occur.  If those interviews have to occur face-to-face, then the interviews will follow the required protocol. 

How might COVID-19 impact my parenting arrangements?

The court is aware that strict compliance with parenting orders may not be possible and in fact may be impossible.  The best option is to try to reach an agreement with the other parent and failing that contact a specialist family lawyer for advice.  In the highly unusual circumstances, which Australian families now face, there may be situations that make compliance very difficult.  The Court expects parents to continue to act in the best interests of the children and act reasonably.

How can I change my parenting agreement or order?

  • Communicate with the other parent and if agreed, it should be documented in writing, even by text message. 
  • Get help to reach an agreement.  Contact a Family Relationships Centre, or your family lawyer who can help you by phone, video call or other contactless means. 

If you need any further information, please do not hesitate to contact our Gold Coast lawyers for a free, initial consultation.

First Family Law Appointment

Your First Family Law Appointment

By | Articles, Family Law

One of the most challenging — and rewarding — aspects of practicing family law is helping clients through some of the most challenging times of their lives. More often than not, they are going through separation and/or divorce, and need help with financial or parenting matters. In some cases, they are seeking legal advice about both. Accordingly, we do everything necessary to ensure that our clients understand their legal options. We also ensure that they have the information they need to make informed decisions.

This process begins at your first appointment. Since being prepared for this meeting will help alleviate your stress and anxiety, we’ve decided to share some insight into what usually happens at this time. Keep reading to learn more.

What to expect

When you schedule your first meeting, we’ll ask you to provide some basic information about yourself and your case. We may also ask you to provide additional details on an intake form when you come in. However, the initial consultation is your first chance to share your story directly with one of our family lawyers. Specifically, you’ll have an opportunity to tell him or her what prompted you to seek legal advice, and how you’d like the matter to be resolved.

This is also an important chance for you to share any specific questions or concerns with the lawyer. To make the most of it, consider making a list of any such matters before the meeting. That way you can simply bring it with you, so you won’t feel as stressed about remembering everything during the actual meeting.

In addition to answering your questions, the lawyer will provide some basic information about relevant legal processes, your legal rights and so on. He or she will also ask some follow-up questions about your case. With all of the information you have provided in hand, he or she will assess your situation and advise you accordingly.

Afterwards, you’ll be able to ask any questions about the advice and information you’ve received.

Helpful paperwork

Knowing what you should bring to your first meeting with a family lawyer can also help lessen any stress or anxiety you experience before meeting a family lawyer. The type of paperwork we’ll need depends on your specific circumstances.

For example, if you are seeking legal advice about financial issues related to divorce or separation, gather some basic information about any individual and joint assets. These may include bank statements, along with documents reflecting ownership of your home, vehicles and so forth. Paperwork related to your superannuation, income and any other financial resources.

On the other hand, if you are seeking legal advice regarding parenting issues associated with separation or divorce, we’ll need different material. Bring any written records you’ve kept about relevant issues or concerns such as custody, child support, and visitation. Copies of any journal entries you’ve made or are making about how the breakdown of your marriage has affected your children will also be helpful. This will ensure that your lawyer is fully informed regarding your circumstances and concerns. It also saves a lot of legwork if we need them for the preparation of future court documents.

In either case, you shouldn’t stress over bringing everything to the initial consultation. There will be other opportunities to provide additional documents if necessary, and we will let you know what we need.

Bringing someone with you for moral support

Another question prospective clients often have prior to their first meeting with a family lawyer is whether they can bring someone along for moral support. The answer is, of course you can.

We fully understand that you are going through a stressful time, and you may feel overwhelmed. Accordingly, you are welcome to bring a friend, relative, colleague or anyone else that can help you feel more at ease. Having said that, it is important that anyone you do bring understands that anything we discuss at the first meeting is strictly confidential.

You should also be aware that you don’t have to bring anyone with you if you don’t want to. It is entirely up to you.

Cost

Perhaps the single most important concern people have about meeting with a family lawyer is how much it will cost.

For your convenience, the family law team at OMB Solicitors offers an initial half hour free consultation. This is when we’ll go over most of the matters detailed above.  At this stage, we’ll also give you a comprehensive breakdown of the costs involved.

As a follow-up, we also offer a full untimed family law consultation for $400 plus GST, where we will try to get any additional information needed to provide you with an initial letter of advice, and a detailed letter to the other party.

You can schedule an initial consultation by clicking the link on our family law page. You can also do so by sending email to: [email protected].

Sun Rise Images With Girl

What Effect Does Domestic Violence Have on a Property Settlement

By | Articles, Family Law

As police, advocates, social workers, and mental health professionals all can attest, domestic violence takes a tremendous toll on victims. In addition to lasting physical and emotional scars, it often creates financial hardship as well. In some cases, this is because the physical injuries inflicted by perpetrators render the victim incapable of working or unwilling to do so. In some cases, the victims can and do work, but the abuse they’ve suffered affects their job performance. This in turn can lead to disciplinary action or termination. Finally, domestic violence can also make it harder for the victim to find gainful employment.

Even so, the ways in which domestic violence affects property settlements in divorce can vary greatly depending on the specific circumstances of each case. In this article, we’ll take a closer look at this complicated, yet important issue.

A benchmark case

The Full Court of the Family Court set legal precedence for the consideration of domestic violence as a factor in property settlement claims with its ruling in In the Mar­riage of Ken­non. In this particular matter, the divorcing couple had been married for four years and did not have any children.

The court ruled in pertinent part: “… where there is a course of vio­lent conduct by one par­ty towards the oth­er dur­ing the mar­riage which … [has] had a significant adverse impact upon that par­ty’s con­tri­bu­tion to the marriage, or, … [has] made his or her con­tri­bu­tions significantly more ardu­ous than they ought to have been, … [this can be tak­en] into account in assess­ing the par­ties’ respec­tive con­tri­bu­tions with­in s 79.

The court added that there must be evidence that the vio­lence “occurred during the course of the mar­riage and had a dis­cernible impacton the victim’s contributions in order to be “relevant.”

When all was said and done, the court did amend the property settlement in the wife’s favour because of the extent to which domestic violence affected her contributions. However, the specific percentages associated with the adjustments are unknown.

Because the decision set a legal precedence, adjustments to property settlements based on similar findings are now called “Kennon” adjustments.

Quantifying the effects of domestic violence

In ensuing cases, the court has tried to calculate values for adjustments based on the impact that the domestic violence had on the victim’s contributions. In a case styled as Kozovs­ka & Kozovs­ki, the court adjusted the assets meant for the wife by 10 percent. They did so  based on the domestic violence she endured at her husband’s hands,  and the resulting impact on her con­tri­bu­tions. In another case, Dixon & Dixon, the assets allocated to the wife were adjusted by 20 percent. This adjustment was also attributed to the impact the domestic violence she endured had on her contributions.

Another case in point

For clarification, let’s consider another case.

In this particular matter, the husband and wife were both in their 40s and had been together for nine years. The wife had two kids, both of whom were teenagers, from a prior relationship. The couple’s asset pool consisted of a house valued at $470,000. Both parties claimed that they made initial contributions, although the husband disputed his wife’s assertion on this point. The parties also disagreed on the use and the amount of compensation received after the husband was injured in a serious motor cycle accident.

However, the real issue at the crux of the matter was the wife’s assertion that she and her children were victims of ongoing violence throughout the relationship. The husband denied any physical violence occurred. After the couple separated, the husband breached the Intervention Order his wife sought because of the domestic violence. He ultimately went to prison for more than three years for violating the Intervention Order and other offences. Soon after he got out of prison, he again breached the Intervention Order by calling and threatening his wife.

Based on the evidence presented, the court awarded a 7.5 percent adjustment to the wife. This was because the domestic violence perpetrated by her husband made it harder for her to continue contributing to the household. The court also made a 10 percent adjustment in the wife’s favour because she was solely responsible for caring for the kids, and the effects of the abuse limited her ability to work.

There’s always an exception…

Of course, there are always exceptions to the “rules.” Take the matter of Bel­more & Bel­more , for example. In this particular Family Court case, the husband and wife had been married for more than 30 years and had several children. Of significance here is that the husband was convicted of a serious assault on his wife and punished accordingly, and there was evidence of additional domestic violence. Even so, the court did not feel it could justify an adjustment in favour of the wife based on Ken­non.

Here’s why. The most seri­ous assault, which result­ed in the hus­band’s incar­cer­a­tion, occurred after he and his wife separated. Only violence that occurs while the couple is together can be used as the basis for a claim for a property settlement adjustment based on Ken­non.

Clearly, this is an important but complicated issue. If you have been the victim of domestic violence, you are getting divorced and you are concerned about how the violence could affect your property settlement, getting the proper legal advice is essential. Contact our Gold Coast lawyers by phone, email  or through our website, today.

family law mediation

Four Tips to Prepare for Family Law Mediation

By | Articles, Family Law

The cost, complexity and confrontation involved in going to court after the break up of a family unit is something most people would really like to avoid.

The whole process can add another level of trauma and stress on everyone involved, particularly children. The courts, as well, are struggling under the weight of the number of family matters coming before them for resolution.

This is why alternative methods of resolving disputes such as mediation have become more and more popular when it comes to family breakdown, making the process – when done in the proper way – quicker and less fractious.

There are some essential things to take into account before embarking on mediation of a family law dispute, set out in general terms below.

  1. Be prepared

Achieving a successful outcome – whether it’s mediation about parenting arrangements or finances – hinges on how well you’ve prepared before the discussion.

This includes issues ranging from working out who will pick up the kids from school and look after them on the day of mediation, to coming up with a list of your key priorities for discussion on the day and a firm idea of what you will regard as a successful outcome.

Preparing properly will be greatly aided by consulting a legal professional experienced in family mediation. Many lawyers these days are also qualified in conducting mediations and can help clarify and guide the process for you so that the discussion is not considered wasted time.

  1. Consider compromise

The key to successful mediation is finding common ground between the parties, not emphasising or heightening areas where you both disagree. This involves a degree of empathy on the part of both parties, requiring you to think about what your ex-partner, for example, will want to achieve from the mediation process.

Both of you need to be well aware of what you can and can’t live with, in terms of resolving the issues at hand. This will require negotiation, compromise and probably some imagination in order to overcome obstacles and areas of difference. Without the appropriate mindset, however, you’re unlikely to reach mediated settlement.

  1. Check your emotions

There are few things in life that can arouse high emotions like matters involving your family. And while it’s natural to feel stress and emotion in any attempt to seek resolution of all the issues surrounding a family breakdown, it’s equally important to control these feelings in the mediation process. Anger and anxiety can impair your thinking and the negotiations needed to achieve a result.

There are many ways to deal with such strong emotions, from writing down your feelings and reactions to try and externalise them, to talking to trusted family members or – on the day or days of mediations – asking to take a break if the discussions are becoming overwhelming.

Most importantly remember to approach mediation with a constructive mindset. Saying things designed to ‘destroy’ or assassinate the character of the other party is a sure path to failure of the process.

  1. Make sure you have support

Whether it’s your trusted legal advocate or someone closer such as a long-time friend that you choose as a support person, consider whether you need an extra hand at a family law mediation. If it’s a friend or family member, it’s important that they be someone who won’t express strong opinions or influence your decisions in the matter at hand. They are there as emotional reinforcement. Be aware this person may not be able to be present in the room during the mediation discussion due to the need for confidentiality.

The combination of an experienced family law mediator and parties who are prepared for mediation after consulting legal professionals with experience in this area can ensure a family break up doesn’t necessarily end up in court. If you have any questions about the issues raised above, contact our family lawyers Gold Coast today.

property settlement lawyers Gold Coast

Can I Still Do a Property Settlement in a Short Relationship?

By | Articles, Family Law

It’s an unfortunate fact of life that many relationships don’t last. And when a couple splits up, there are difficult questions around how assets that were part of the marriage or de facto relationship are to be divided.

This situation is often made more difficult when there is a property settlement to be decided after a short marriage – one considered to be five years or less – ends. While there is no set formula used by relevant courts to decide property settlements in short marriages or de facto relationships, different factors are taken into account compared with the circumstances surrounding the break-up of longer term couples.

How do property settlements work?

Where there is property to be divided after the dissolution of a relationship, the settlement is a financial order made under family law by a court which is considered “just and equitable” for both parties.

It should be noted that just and equitable does not automatically mean a 50:50 split. The contributions each party has made to the marriage are considered in deciding the property settlement, including both financial and non-financial, such as caring for children or maintaining the family home. The future needs of each party are also considered, with the court deciding the weight to be attributed to all of these factors.

Property settlements after a short marriage

Courts assess the factors outlined above in a different way when the relationship in question was five years or less.

While non-financial domestic contributions are considered roughly equal in value to financial contributions in longer marriages, this is not necessarily the case in short marriages. The financial contributions of both parties to a short marriage are likely to be given greater weight in any decision on a property settlement, particularly if the couple has no children (meaning neither party had the considerable domestic responsibility of childcare). Alternatively, the court may place an equal value on non-financial and financial contributions if the domestic duties were onerous.

If following separation one of the parties remains the primary carer of children from the marriage, the court may also make additional adjustment on his/her entitlements to the share of the settlement, regardless of the short duration of the marriage.

The initial contributions to the marriage by each party will also be more closely examined, including savings, an inheritance or a property. These are given greater weight in settlement of a short marriage because they likely still exerted a substantial effect on the union before it ended.

The result is that one party’s initial contributions to the marriage may be excluded from the property pool to be divided. If one party’s initial contributions are included in the pool of assets, adjustments may be made in favour of the other party.

If the parties kept their financial affairs largely separate during the short marriage, this will also be taken into account when determining the property settlement.

In conclusion

As mentioned above, each property settlement matter resulting from a marriage break-up will depend on the specific facts and circumstances of the relationship, particularly when the marriage is short.

It is advisable to discuss all the details of your matter with a specialist in family law in order to receive accurate and timely advice on property settlement outcomes in the unfortunate event of a relationship ending.

Contact our Gold Coast Lawyers today for more information.

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The Most Commonly Asked Questions Regarding Parenting Rights Post Separation

By | Articles, Family Law

It’s 8:40 AM on the first Monday morning back at work for me after the Christmas New Year break. Whilst I stare at the 2000+ emails requiring my urgent attention, I receive a phone call.

I say to the receptionist ‘can you please take a message and I’ll get back to them later’. She tells me that the caller is in tears and needs to speak with someone urgently.

I take the call. His name is Steve. He told me that he has a young daughter called Amanda and has been married for 10 years. His wife’s name is Tammy. Steve told me that he works away in the mines in Mount Isa on fly in fly out basis. He spends 2 weeks at the mines and then comes back home for a week. He said this was the only job that he could get, and it earns good income for him and his family which is the only reason he took it.

He told me that when arriving back home from his last stint in Mount Isa for the year just prior to Christmas, his wife Tammy, and daughter Amanda, were gone. So was most of the furniture from their house, all Amanda’s and Tammy’s clothes, possessions and beds were gone. Even their king-size matrimonial bed was gone.

He said that he thought he and Tammy had been growing apart and she was becoming more distant from him, however he had no idea at all that this was going to happen.

He told me he spent Christmas on his own in an empty house sleeping on a blow-up bed on the floor. He has been self-medicating with alcohol and he is so depressed that he wants to end his life and for it to be all over. He said the only thing he is living for is to be able to spend time with Amanda again.

I told Steve that ringing me this morning is the best thing that he could have possibly done. I told him that I have been practising family law for over 30 years, that there is a light at the end of the tunnel, and by taking it step-by-step he will get there. I told him that what he’s feeling now is a completely normal reaction but will be nothing but a distant memory in the future.

I arranged an appointment for Steve to come and see me that afternoon. I referred him to a good counsellor to deal with his depression issues and explained to him that in a marriage of that length with a 5-year-old daughter are you not only grow up together, you grow together and become one. You’re like a nice big ripe watermelon until someone pulls out a cane knife and slices you write down the middle. Now one half of you is gone and where it was is very raw. You need time to heal and grow a scab over that cut which takes time.

Steve said to me he does not know where Amanda or his wife would have gone to, or why she left without giving him notice or reason.

Steve was concerned because he was a fly in fly out worker and wanted to know how we can find Amanda and Tammy, what his rights are as a parent post separation with respect to his children. He said, “now that she has done this and has taken Amanda away from me, there is no prospect of reconciliation between us whatsoever”.

He then turned to the family law questions that I knew were coming. I knew they were coming because these are the most common family law questions that I am asked following the separation of two parents with young children, particularly where one parent has taken the children away from the other and/or will not let the children spend time with the other parent.

Question 1: Steve asked, “what rights do I have with respect to my daughter Amanda?”

I told Steve that under the guiding principles of the Family Law Act 1975 (“the Act”), which is the main piece of legislation dealing with family law in Australia, there is a presumption that following separation both parents will continue to have equal shared parental responsibility for any children of the relationship.

I explained to him what equal shared parental responsibility means. It means that both parents have an equal parental right or ability to play a primary role in decision-making for any major issues for the children, such as schooling and medical issues, where the children will live, what the children’s names will be, and overseas travel until the children turn 18.

I told Steve that both he and his Tammy will continue to have joint parental responsibility for his daughter Amanda unless that is altered by the court which in his circumstances is not likely at this time.

Question 2: Steve then said, “if I have equal shared parental responsibility, does that also mean I am entitled to equal time with Amanda?”

The Act says if the parents have equal parental responsibility, the child’s parents are to consider firstly whether an order that the child spend equal time with the parents. Equal parental responsibility and equal time with both parents are very different things.

I explained to Steve that with respect to equal time, that is 50-50 or one week on one week off type arrangements, the court has recognised that such an arrangement can only work in limited circumstances.

  • The parents should be living close to each other and to the child’s school;
  • there must be no ongoing domestic violence issues between the parents and the child (particularly at changeovers) must not be subject to domestic violence;
  • there must be no risks of child abuse, alcohol or illicit substance abuse in the presence of the child,
  • there must be no emotional or other physical abuse to the child;
  • the parents must be able to communicate with each other regarding the child’s schooling and parenting without arguing after every second sentence;
  • it must be otherwise “reasonably practicable” for equal time to work;
  • most importantly (and this is a paramount consideration) the proposed equal care arrangement must be in the best interests of the child; and
  • (also, a paramount consideration) the child must be protected from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.

My advice to Steve was that in his case, if he continues to be a FIFO worker, equal time will simply not be practicable because of his work commitments. He then said to me ‘I would be prepared to leave that job move close to where Amanda is, if we can find her. Even if it’s in Timbuktu. She means that much to me.”

I said in that case, he will need to establish good communication with Tammy about parenting decisions, he should be close to Amanda’s school and Tammy’s new residence for practical reasons, and most importantly Amanda must not be subjected to or exposed to any domestic violence.

The domestic violence Steve told me about that did take place, particularly when his wife had been drinking had been exposed to Amanda. I told him that this must never happen again. There must also be good communication at changeover and no arguing or pushing each other swearing at each other or any emotional abuse.

It may turn out that his wife continues to drink and become violent, Amanda are may be safer living with Steve. I told him that the court would appoint a family report writer to prepare a family report to make recommendations to the judge as to what is in his daughter’s best interests.

I also told Steve that if Tammy and Amanda have moved out of the area to make it extremely difficult for Steve to spend any time with Amanda, we can ask the court for an order that they be relocated back to this area to maintain the status quo until the court can determine what is in the best interests of Amanda.

Question 3: What is substantial and significant time?

If equal time is not possible, then the court must consider the importance of the child having a meaningful relationship with both of the child’s parents and giving substantial and significant time to the parent with whom the child does not live. The old regime where the father would only get to spend time with his child every second weekend and half the school holidays is not considered to be substantial and significant time.

I explained to Steve that there is also an obligation on both parents to facilitate (make possible) and encourage the children to spend meaningful and significant time with the other parent. I told Steve that if it is at all possible, equal time should be considered.

Additionally, and particularly relevant in Steve’s case, is the fact that because Steve is a fly in fly out worker, a 50-50 equal shared care arrangement would not be possible because of his work commitments. Practicality needs to be considered as well.

I asked Steve if there had been any issues of domestic violence, alcohol abuse or illicit substance abuse by Tammy against him. He told me that Tammy was the heavy drinker, and after a few drinks she would become violent and occasionally would strike out and on one occasion she kicked him in the head. Steve denied that he provoked her to do this. He said she was psychopathic and out-of-control when she had drunk too much. Steve said that he is a mine worker and he drinks heavily himself, however he does not become violent like Tammy does. I asked him why he thought Tammy left, and he said that he suspects she is having an affair because he is hardly ever at home.

I told Steve that while many parents might think that think equal time is the best arrangement post separation, most of the time that does not turn out to be the case.

Equal parenting or week about arrangements can sometimes lead to extra pressure on the children, particularly once you factor in the children’s schooling and extra-curricular commitments, age, and any health issues.

Parents also need to factor in their own lifestyle, financial means and commitments which may impact on their ability to spend meaningful time with the child while in their care.

Week about arrangements, of their nature, may place too much of a burden on the child’s psychological state and ability to be apart from one parent more than the other. This is particularly the case for younger children who may still be dependent on their primary carer. Amanda falls just within this category, and I told Steve that if Amanda is safe living with her mother and she is not exposed to or neglected by excessive alcohol use and associated violence, then she will most likely remain living with mum. However, if Amanda is not safe in that environment, it may be turned out to be in Amanda’s best interests for her to live with Steve. I told Steve depending on how things go, in a year or so they made look at trying and equal shared care arrangement if the circumstances allow.

Both parents must also have the ability and capacity to properly care for the child and meet the child’s before equal time is simply assumed.

Question 4: how do I find Amanda and Tammy?

I told Steve that in these circumstances, where Tammy has left with the child she must perceive some conflict, threat or an emotional need to be away from him. Tammy will be likely even if we find her, to resist or restrict Amanda spending time with him.

Steve said he still has an email address for Tammy, although he doesn’t know if she still uses it. I said the best thing we should do immediately is to write to her in a civil and polite manner and ask her why she has left, where she has gone to, and what proposals she has for Steve to spend time with Tammy.

If there is no response to that letter (which will give a very short timeframe for a response), then we will have to issue legal proceedings for a location order and a recovery order (to force Tammy to relocate back to the area to maintain the status quo) and some interim parenting orders. We will also ask for the court to appoint a family consultant to prepare a report once Tammy and Amanda have been found.

Question 5: if we find Amanda and Tammy before issuing Court proceedings, what should we do next?

I told Steve that if we happen to find Tammy and Amanda’s whereabouts from communicating to her through her email or by other means, the first sensible step is to try to organise a mediation with Tammy. Mediation (referred to in the Act as “family dispute resolution conference”) this can be done through either government mediation services or private mediators. A mediation is required before court proceedings are issued, unless there are circumstances of extreme urgency or there is a risk of harm to the child being exposed to family violence or child abuse.

The benefit of mediation is that it provides both parties with the ability to discuss their concerns about parenting matters with an independent mediator, which may provide them with a better perspective on what is in the best interests of Amanda.

Amanda will not be included in the mediation, and I told Steve that when he starts communicating with Tammy it is very important for him and Tammy to not put Amanda in the middle of any parenting discussions where arrangements for Amanda are being discussed. This will put uncalled for emotional pressure on Amanda.

Question 6: Steve then asked me “what if mediation fails and I still cannot see Amanda?

I told Steve that if he fails to reach an agreement at mediation, the mediator will give him what’s called a section 60 I certificate authorising him to commence legal proceedings. I did say that in the circumstances of his case where Tammy took Amanda away without any notice or informed consent, and due to the domestic violence and alcohol issues, he probably falls within an exception to having to file a section 60 I certificate to get court proceedings underway. However, if there is a possibility that mediation might have worked, I always recommend trying that first.

Question 7: What are the benefits of issuing Court proceedings? Will I get Orders in place quickly?

Issuing Court proceedings in the family law courts can be an expensive and drawn out process, both financially and emotionally. Generally, at the 1st return date, which in urgent circumstances may be as quick as in one week, but in normal circumstances is probably 2 to 3 months away we can ask for some interim parenting orders and for a family report to be prepared. The matter is then generally adjourned for 6 to 8 months to enable the family report to be prepared. The family report writer will make recommendations to the judges to what is in Amanda’s best interests. 9 times out of 10 the judge will make orders along those lines. However, if he or Tammy disputes the recommendations the matter will be set down for trial which could be another 6 to 12 months away, or longer if the proceedings are in the family Court of Australia.

I have written another article which is on our website called “What if mediation fails”. In that article I explained the court process in more detail. I suggested that Steve read that article and all the other articles of our website dealing with the family courts and parenting matters, so he can get a good grasp of how everything works.

Question 8: How can I safely communicate with Amanda’s mother about Amanda?

Steve asked me what will be the best to communicate with Tammy about Amanda in circumstances where there will most likely be hostility. Phone calls can readily get out of control, and text messages can be misinterpreted.

I suggested to Steve that he and Tammy communicate by email only in what is known as the FYO RR method as follows:

I said to Steve “, so you wish to inform Tammy that Amanda now knows how to do backstroke, that her homework for the week has been finished, or that she has found a good friend next door to your house. But you also need ask Amanda if she knows what happened at school on Thursday because when you picked Amanda up from school she had a scratch on her face. You also want to know what her test results were. You also wish to enquire about the roommate she has, and if Amanda is safe around him.”

I said “using the FYO RR method you will communicate this by email in short bullet points under 2 headings, the 1st being FYO (for your information) and the second heading will be RR (response required). You will give her a week to respond. If Tammy is caught up with something and cannot respond within that week, Tammy will email you during that week to tell you that she needs an extension of time and will give you a time by which she can reasonably respond. If that time is reasonable you will allow it.

So, your email will look as follows:

Dear Tammy

RE AMANDA

FYO

  • Amanda has learnt how to do backstroke and did it well today. She is excited about that;
  • Amanda’s homework for the week has been completed;
  • Amanda has made friends with the girl next door. She is one year older than Amanda and her name is Vicky. They enjoy spending time together.

RR

  • do you know what happened at school on Thursday because when I picked Amanda up she had a scratch on her face. It’s not too deep but it looks like a nail scratch.
  • Can you please let me know the results of Amanda’s blood tests? I would appreciate it if you could send me a copy and let me know what the doctor said.
  • Amanda has informed me that you now have another person living in your house. Can you please tell me a bit about him to help satisfy me that Amanda, being only a young girl, is safe around him?

 You have one week to reply to the RR questions, which means that the deadline is 5 PM on Monday, 12 September 2019.”

Steve said he thought that was a great idea, and he would try down the track.

What was the result?

I took down all of Steve’s details and then prepared a letter to Tammy setting out a brief history of the relationship, the circumstances that Steve now finds himself in, and his proposals with respect to be able to spend time with Amanda. I won’t tell you what happened from here. I won’t tell you if we found Tammy and Amanda through that letter or if Steve had to go through the lengthy process of court proceedings. I also won’t tell you why Tammy left with Amanda, but I will tell you that she returned to rent a house near his. I also won’t tell you if she was forced to return by order of the court or if she did it voluntarily. No

I will however tell you that Steve now has a fantastic relationship with Amanda, and they get to spend a lot of fun time together. Steve takes Amanda to her swimming lessons, they go Kayaking together he assists her with her homework during the time that he has with her.

Steve and Tammy communicate very effectively about Amanda using the FYO RR method and Amanda is doing very well at school as a result.

Please contact our family lawyers Gold Coast at OMB Solicitors if you find yourself in circumstances like any of the above so that we can assist you to find yourself enjoying a happy relationship and spending meaningful time with your child, like Steve and Amanda now enjoy.

Please note that the names and circumstances in this article are completely fictitious, and every individual’s circumstances will differ. However, I have over my career found myself acting for people in very similar circumstances to Steve and in all cases a good outcome was achieved in the end for the child and her father.

Marriage Divorce Separation and Will

One of the Most Important Things You Need to Do Following Marriage or Divorce / Separation

By | Articles, Family Law

The Effect of Marriage on your Will

Marriage is a time of joy and commitment. However, by saying the words “I do”, you are also inadvertently saying the words “I do hereby revoke my Will“. For those who are preparing vows to be together until “death do us part”, you do need to think about what happen when death does, in fact, part you.

In Queensland, section 14 of the Succession Act 1981 (Qld) provides that Marriage automatically revokes a Will, unless the Will was expressly made in contemplation of the marriage.

If a Will is made in contemplation of marriage, the contemplation must clearly state the testator (Will maker) expected to marry the particular person and intended that the Will should not be revoked.

The effect of Divorce (or separation from a Civil Partnership / de facto relationship) on your Will

In Queensland section 15, 15A & 15B of the Succession Act 1981 (Qld) sets out the effect that divorce (or separation from a Civil Partnership / de facto relationship) has on a Will.

Unless a contrary intention is shown in the Will, a testator’s divorce (or separation from a Civil Partnership / de facto relationship) revokes the following:-

  1. Any beneficial interest the testator’s former spouse/civil partner/de facto partner had under the Will;
  2. Any appointment the former spouse/civil partner/de facto partner has as an executor, trustee, advisory trustee or guardian under the Will; and
  3. Any grant, made by the will, of a power of appointment exercisable by or in favour of the Will maker’s former spouse/civil partner/de facto partner.

The Will of the testator then takes effect as if the former spouse/civil partner/de facto partner had died before the testator.

However, in Queensland, a testator’s divorce (or separation from a Civil Partnership / de facto relationship) does not revoke—

  1. the appointment of the testator’s former spouse/civil partner/de facto partner as trustee of property left by the Will on trust for beneficiaries that include the former spouse’s/civil partner’s/de facto partner’s children; or
  2. the grant of a power of appointment exercisable by the testator’s former spouse/civil partner/de facto partner only in favour of children of whom both the testator and the former spouse/civil partner/de facto partner are parents.

Conclusion

Marriage and divorce/separation can have unknown and unintended consequences on your Will. The next document that you should sign after your Marriage Certificate, should be a new Will.

Similarly, if your marriage/relationship doesn’t turn out to be “happily ever after”, you need to give consideration to updating your Will.

Whether you are getting married or divorcing/separating, we recommend you contact our experienced Gold Coast lawyers team to discuss the legal implications and effects on your Will.

whats next after a property settlement agreement

We’ve Come to an Agreement in Relation to Our Property Settlement. What Do We Do Now?

By | Articles, Family Law

Firstly, give yourself a pat on the back! It is great that you have reached agreement, as you will save the considerable legal costs involved in arguing over who gets what and ending up in court.

Once an agreement has been reached between you as to how you wish to divide your assets and liabilities in a family law settlement, you have the option of entering into a financial agreement or consent orders to formalise and finalise your agreement.

You will need to have either consent orders made or a financial agreement in place, to legally resolve the dispute once and for all (so that it can be used in resisting a court application in the future with respect to the same issues).

Consent orders or a financial agreement will also be required to obtain the stamp duty exemption for the transfer of any interest in property pursuant to your agreement.

Consent orders are often preferred over financial agreements, where a potential future breach of the terms of the agreement by one party is sensed as a serious likelihood by the other party. It is easier and less expensive to enforce compliance with consent orders than it is with financial agreements.

It is also often less expensive to both parties to formalise their agreement with consent orders, and consent orders are harder to set aside than a financial agreement.

I will explain both options to you further below:

Consent Orders

We will draft any agreement reached in the form of consent orders, and file those orders in the Family Court with an Application for consent orders. It will be necessary for both parties to sign. Your spouse will not need a lawyer (if he or she chooses not to) for this process.

If the consent orders contain a superannuation split, flag or otherwise impose an obligation on the trustee of a superannuation plan, we must first serve written notice of the terms of the order on the Trustee of the superannuation plan in which the interest is held.

After the application for consent orders is filed, a Registrar of the Family Court will consider the application. If the Registrar is satisfied that the orders should be made, the Registrar will sign the proposed orders and sealed copies will be sent to us. Your court appearance for this process is not required, as the Registrar will decide the application in chambers in the absence of the parties.

If the Registrar is not satisfied that it is just and equitable for the orders to be made on the information before the court, a notice will be sent to us with a brief explanation as to what further information or evidence is required.

It may be necessary for the application to be ultimately heard in court, however this generally only occurs in rare cases where the orders appear to be grossly unfair to one party.

In a best-case scenario, the Registrar will make the consent orders, and sealed copies will be returned to us within 1-3 months of filing.

Financial Agreement

It may be preferable or necessary to prepare a financial agreement in certain circumstances instead of consent orders. These circumstances include:

  1. where the parties cannot wait for consent orders to be made (a financial agreement is binding as soon as it is signed by both parties);
  2. if the property settlement is unfair to one party, or
  3. assets or businesses are to be continued be jointly owned by the parties.

If a financial agreement is preferred, then we will draw up the required agreement. Once the terms are approved by you, we will send it to your spouse (or their lawyer) to review and settle the terms by negotiation.

A financial agreement aims to oust (remove) the jurisdiction and power of the family law courts in relation to all financial matters to which the financial agreement applies. The financial agreement is not filed in the court.

The financial agreement can deal with all or some of your property, and spousal maintenance and superannuation.

To be binding the financial agreement:

  1. Must be in writing;
  2. Must specify which section of the Act it is made in accordance with;
  3. Must be signed by both of you;
  4. There must be a Statement of Independent Legal Advice for each of you from a qualified legal practitioner setting out the matters referred to in the Family Law Act (“the Act”), and confirming that the advice was given to you each before you signed the financial agreement;
  5. The Statements of Independent Legal Advice must be exchanged;
  6. One party will retain the original financial agreement and the other will be given a copy;
  7. There should have been full and frank disclosure of all financial matters between both of you (however this is not strictly necessary under the Act); and
  8. All of the technical requirements set out in the Act must be complied with.

A financial agreement is a complex and technical document and takes a lot of time to prepare. There are schedules with all assets and liabilities. A comprehensive letter of advice to you is also required.

Your spouse will need a solicitor to advise him or her on the financial agreement and sign a certificate of advice, otherwise it will not be binding.

If either of the parties breach a term of the financial agreement, the other party can apply to a family law court to enforce the financial agreement. If the financial agreement is held to be valid and enforceable, the court can enforce the terms of the financial agreement as though those terms were orders of the court.

The Advantages and Disadvantages of a Financial Agreement Compared with Court Orders

The advantages to you of making a financial agreement may be summarised as follows:

  • Entering into a financial agreement brings certainty to the outcome of the division of your property. This also applies to consent orders.
  • Entering into a financial agreement also brings certainty to the payment of spousal maintenance, and unlike consent orders made by the court, the spousal maintenance clauses in the financial agreement (if binding) can be used to resist an application being made to the court for spousal maintenance by either party in the future.
  • The terms of a financial agreement are generally not construed by the court to see if they are “fair” or “just and equitable”, unless they are grossly unfair to one party and that party was unduly influenced or coerced (forced) into signing the financial agreement by the other party directly or through some unconscionable (unreasonable or unacceptable) conduct, or duress.
  • Because the agreement is not filed in the court unless one party wants to enforce it or set it aside, the court does not have the opportunity to see if the financial agreement effects a “once and for all” division of assets. A financial agreement therefore gives you more flexibility than a court order, as the court requires a final division of the party’s assets and looks to sever all financial ties between the parties.
  • You will avoid the costs of protracted court litigation over a property settlement following separation, which in some instances can cost up to $120,000 (or more).

The disadvantages of making a financial agreement or consent orders include:

  • You are contracting out of your right to have a court determine a just and equitable division of your assets and assess your entitlement to property and/or spousal maintenance following separation;
  • The terms of the financial agreement might not be within the range of your likely entitlement, depending on the date of separation, your future needs at the time, the size of the asset pool at that time, and the contributions (both financial and non-financial) that you have made. At least with consent orders you have the security of a court registrar reviewing the terms and being satisfied that they are within your likely range of entitlements.
  • Financial agreements are able to be set aside by a court if they are not drafted and executed in compliance with the Act, and for a number of other reasons including non-disclosure of a substantial asset, fraud, undue influence, unconscionable conduct, duress, mistake and where it is no longer possible or it is impracticable to carry out the terms of the financial agreement.

For any further advice and assistance with your family law property settlement matter, or which is the best way to proceed when you have reached an agreement, please contact our Gold Coast lawyers team at OMB Solicitors.

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