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:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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 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.
In this video, OMB Partner & Accredited Family Law Specialist, Abbi Golightly discusses some useful things to consider prior to your first appointment with your family lawyer.
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  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 OMB Solicitors Family Law 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.
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:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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 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:
- The application must be necessitated as a direct result of the pandemic;
- The matter must be urgent
- The application must be supported by Affidavit which addresses the mandatory criteria as follows:
- Why it is urgent
- How the dispute is as a direct result of Covid-19
- Details of current allegations of risk (such as abuse or family violence)
- Details of the reasonable attempts to resolve the matter by negotiation
- Details of how the proposed Respondent(s) can be provided with the court documents including a current email address
- If possible, provide (even by way of photos) a copy of the current orders, parenting plans and family violence orders
- If safe to do so, you must have attempted reasonably, to resolve the dispute;
- 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:
- 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
- Where border restrictions result in the inability for parents and children to travel between homes
- Where parents or children have tested positive for Covid-19 or cannot fulfil their parenting obligations as a result of concerns of infection
- 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.
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.
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.
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.
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.
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 impact” on 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.
What are Things You Should Consider After Separation?
Contact our team for more information here Family Law Enquiries.
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.
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.
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.
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.
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.
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.
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.
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:
- 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.
- 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.
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:-
- Any beneficial interest the testator’s former spouse/civil partner/de facto partner had under the Will;
- Any appointment the former spouse/civil partner/de facto partner has as an executor, trustee, advisory trustee or guardian under the Will; and
- 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—
- 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
- 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.
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.
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:
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.
It may be preferable or necessary to prepare a financial agreement in certain circumstances instead of consent orders. These circumstances include:
- 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);
- if the property settlement is unfair to one party, or
- 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:
- Must be in writing;
- Must specify which section of the Act it is made in accordance with;
- Must be signed by both of you;
- 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;
- The Statements of Independent Legal Advice must be exchanged;
- One party will retain the original financial agreement and the other will be given a copy;
- 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
- 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.
Divorces can be an emotionally tough time for both partners, as well as affected third parties such as children, parents, in-laws and even friends. Unfortunately, divorces can also be a lengthy and tiring process.
Eligibility for divorce
Before a spouse can apply for a divorce, there are specific eligibility requirements that must be met. Either spouse must have been born in Australia or be an Australian citizen by grant or descent. They must otherwise be lawfully present in Australia and intend to continue live in Australia and have been in Australia for a period of at least 12 months.
The marriage between the spouses must be ‘broken down irretrievably’ and the applying spouse must consider that there is no reasonable likelihood of reconciliation and resumption. The spouses must also have been separated for at least 12 months and one day.
If the spouses have been married for less than two years, evidence of a counselling certificate, or evidence saying why this could not be provided, must also be filed.
If the spouses have, at any time, lived with one another during the 12-month period, extra evidence will need to be given to prove that there has been a change in the marriage.
Initiating an application
Once these requirements are met, an Application for Divorce form must be completed, either joint or sole. The application will be joint if both spouses involved in the divorce wish to mutually make the application. If the application is sole, one spouse is making the application and the other spouse is the respondent. The application must then be sworn or affirmed in the presence of a lawyer, a Justice of the Peace, or another who is authorised to witness your signature on the document.
It is advisable that the laws governing the State or Territory in which the application is being made are reviewed, to determine that the witness of the document is authorised to do so. If the applicant is overseas at the time he or she wishes to have the document witnessed, the document can be witnessed by Notary Public, an Australian Diplomatic Officer or Australian Consular Officer, or an employee of the Australian Trade Commission.
Filing and serving documents
Once the application has been completed, the past procedure was to the mail the application to the Family Law Registry along with two photocopies of the document and also a photocopy of your marriage certificate (though this does not need to be sworn, affirmed or certified). Once the Family Law Registry received the application, the court would then file it, and forward sealed copies of the application with a file number, along with a time and date of the scheduled hearing.
However, as our firm is registered with the Family Court portal, we are able to file the application online, and we will obtain a hearing date at the time of fling. We then print sealed copies of the divorce application to serve (with an information brochure from the court) on the other spouse.
The application must be served to the other spouse either by mail or by a third party within a time period of 28 days before the scheduled hearing date, if the spouse lives in Australia, or 42 days if the spouse lives overseas. If the other spouse’s residential address is unknown, an order to either dispense with service or enable substituted service can be applied for by the applicant spouse.
With a joint application, there is no need for service as both parties are applying together for the divorce.
Costs to file for divorce
The average cost of the filing fee for a divorce application in the Federal Circuit Court is usually $900. If financial hardship is an issue, the spouse applying can also apply for a reduction in the filing fee. In this case, the spouse must provide to the Court specific documents such as Centrelink income statements, health care cards, earlier government grants such as Legal Aid, payments for Austudy, or evidence that the applying spouse is a prison inmate or held in legal detention (if that is the case). This evidence would need to be provided by both spouses in a joint application, or solely by the spouse initiating the application if a sole applicant.
Children and previous names
If there are children of the marriage, the applying spouse must provide to the court the current particulars of the children and care arrangements. Children of the marriage include step, fostered, adopted or biological children, and the details for all such children must be included. This information would include whether the child or children were born before or after the separation, and/or whether the non-biological children were a part of the family before the separation. The particulars and arrangements of the children would include anything from where they primarily live; their contact with each parent or reasons explaining why contact is limited or no contact with a parent; which school they attend; any current arrangements involved, as well as their health.
The financial positions of each parent also must be provided to the court, and if applicable, details of non-provision of financial support by a parent. Additionally, if a spouse in the divorce has a different name to both the married or maiden name, an affidavit will need to be filed with the court, explaining the difference.
Granting of a divorce
Following the granting of a divorce, the divorce will take one month and one day to finalise unless the court makes a special order to shorten this time frame.
As described, a divorce is a long and tiring process, and legal assistance is advisable throughout the process.
Independent legal advice will assist a spouse to understand their rights and responsibilities, how the law both works and applies to their individual cases.
Please contact the Gold Coast Lawyers at OMB Solicitors for assistance and advise for divorce and any other family law issues that are causing you concern. There are often strict time limits involved to do certain acts and file certain documents, and failure to obtain legal advice is not an excuse readily accepted by the Court for missing these time limits.
One of the first things to become clear when you are going through separation and divorce is that there is a lot of confusing legal jargon. There are technical terms about the property, financial and even parenting matters that inevitably surface as your relationship officially ends. For example, you may have heard of a ‘Conciliation Conference’ but can be forgiven for not knowing exactly what that means.
Also known as a ‘Property Settlement Conference’, this is simply a meeting where you and your former spouse or partner have a chance to reach consensus about the distribution of your property before going to court.
Unfortunately, you cannot schedule this meeting yourselves. Instead, the Court will schedule it for you, though this will only happen if you have not resolved your differences during or following a preliminary meeting with a Registrar of the Family Court in what is called a ‘Case Assessment Conference’.
Preparing for the Property Settlement Conference
If you cannot resolve your disagreement during the Case Assessment Conference, the registrar will let you know what you must do prior to the Property Settlement/Conciliation Conference.
After the Case Assessment Conference, you will usually have 28 days to exchange relevant information following the Registrar’s instructions. Along with new material relevant to your case, this may also include documents that were not shared prior to the Case Assessment Conference. Here is what you will need:
- Paperwork about any financial matters referenced in your respective financial statements;
- proof of joint and individual financial contributions made when cohabitation began;
- documentation of any inheritances, gifts or compensation payments received during cohabitation;
- documentation about the purchase or sale of property in the year before or since the separation, and any increase or reduction of liabilities since separation;
- detailed documents about superannuation.
Depending on the specific nature of your dispute, you may also need to complete a financial questionnaire and balance sheet as directed.
Within this context, it is crucial that you share all the facts and documents about any aspect of your application. Failure to do so can have grave consequences, including delays, added costs or even an order mandating that you pay any costs incurred by your former partner or spouse. At its discretion, the Court may also issue a greater order for a property settlement favouring the other person.
Understanding the process
Even with the proper legal, financial, and emotional support, preparing for a Property Settlement Conference can be stressful. But knowing what to expect at the meeting can help lessen your anxiety.
One of the first questions you may have is how long the meeting will take. The answer is based on the unique circumstances of your case, but you should be prepared to spend one to two hours in conference.
The meeting format depends upon the Registrar’s preferences. He or she will usually begin by speaking with each of your lawyers to confirm the specific nature of the disagreement. Based on this information and material submitted prior to the meeting, the Registrar will frame the ensuing conversation with your lawyers in a manner designed to achieve consensus. However, you should not be surprised if the Registrar also asks to speak with each of you directly.
You should be aware that in most cases, both you and your ex-partner or spouse must both attend this conference. If either you are worried about this for any reason, you should let your lawyer know so he or she can relay your concerns to the Registrar, who will make arrangements to address this issue.
You should also be aware that anything said during a Property Settlement Conference or Conciliation Conference is usually confidential. This means that you cannot refer to these conversations in any ensuing Court hearings if the matter is not resolved.
The three parts of the Property Settlement Conference
A Property Settlement or Conciliation Conference is usually a three-step process. These steps are the introduction, the settlement discussions, and the conclusion. Below is a simple description of each stage:
- Introduction: The Registrar will explain the general format for the meeting and lead a brief discussion about any points of contention. He or she will also give guidance for ensuing negotiations based on the specific circumstances of your case.
- Settlement discussions: This is when the Registrar will facilitate the actual conversation about how to resolve your disagreement(s).
- Conclusion: At the end of the meeting, the Registrar summarises everything that has happened and reviews any agreements. If all the issues have been successfully addressed, your lawyer will put the agreement(s) in writing so that the Court can issue consent orders accordingly.
What if we still do not agree?
In a perfect world, everything will settle at the Property Settlement or Conciliation Conference. If not, the only alternative is court intervention. In this case, you will have to attend a pre-hearing conference, which is usually held within six to 12 months, and a pre-trial conference.
You should be aware that you and your former partner or spouse (and your lawyers) can keep trying to reach a settlement until the final hearing. If you still have not been able to resolve the issues by that time, the Court will evaluate all relevant material and testimony. After it does so, it will issue an immediate ruling or announcement that it will issue its decision later.
If you and your partner and spouse are going through separation or divorce and cannot agree on property, financial or parenting matters, it is essential to get the proper legal advice. Contact our Gold Coast Lawyers today.
Bob and Betty have both had terrible experiences in property settlement matters with their prior spouses. They are now in their 50’s and have been ‘going out’ for about 8 years. They have both sworn that they will never get involved in a de facto relationship or marriage again!
Bob and Betty do not live together. They have their own separate houses over an hour’s travel apart, and Betty still has 2 adult children from her earlier relationship still living with her.
They see each other 3 weekends a month. On 2 of those weekends Bob stays at Betty’s house for the weekend (2 nights) and on another weekend Betty similarly comes to stay with Bob. The reaming weekend they each stay at their respective homes and do not see each other. They ring each other once or twice during the week.
Bob and Betty do not have any joint accounts, nor do they share finances. They have their own assets and liabilities and do now own anything jointly. They have separate credit cards and neither of them is authorised to use the others card.
When they go out to dinner together, Bob, being the gentleman that he is, usually pays. They regularly go on overseas holidays together and pay their own way, though Bob again will pay for meals and drinks.
They have a sexual relationship but have no children together.
They are known as a couple to close friends and family, and when they are out together in public on weekends or on holidays they would be seen as a couple. However, on all other occasions during the week and on one weekend a month, they will be seen living their own separate lives, paying their own bills, buying their own groceries, doing their own washing, and cleaning, and maintaining their own homes, gardens, and lawns.
On the weekends that they are at either party’s property, they both make contributions to their food, groceries, and cleaning. Bob will ‘wipper snip’ while Betty is on the ride on mower, and so on. They both shared in the repainting the inside of Betty’s house.
Have Bob and Betty fallen into the trap. Are they in a de facto relationship, even though they do not live together?
What constitutes a de facto relationship?
Every person’s circumstances will be different to that of Bob and Betty, and each case will be decided by scrutinising all aspects of each relationship.
The Family Law Act 1975 (“the Act”) is a Commonwealth Act, so the same de facto laws apply throughout Australia. The Act deals with what factors a court must consider when deciding if a de facto relationship exists or not.
If (god forbid) Bob and Betty broke up, and Betty ‘turned nasty’ and wanted to file proceedings in the court for a property settlement alleging a de facto relationship, she would have to satisfy the Court that all the following circumstances exit:
- That she was in a genuine de facto relationship with Bob, which has broken down irretrievably; (can Betty prove this?)
- That the relationship meets one of the following four gateway criteria:
- That the period for the de facto relationship is at least 2 years (Betty could show this);
- That there is a child of the de facto relationship (not applicable in Betty’s case);
- That the relationship is or was registered under a prescribed law of a State or Territory (again not applicable in Betty’s case); or
- When assessing property or custodial claims in cases of a breakdown of a relationship, it is recognised that significant contributions were being made by one party and the failure to issue an order would result in a serious injustice (it would appear that neither Bob nor Betty made a significant financial or non-financial contribution that deserves an adjustment to solve any injustice).
- That Bob and Betty have a geographical connection to a participating jurisdiction (both Bob and Betty are Australian citizens and live in Queensland, so this is satisfied);
- That their relationship broke down after 1 March 2009 (Bob and Betty only recently separated, so this requirement is satisfied).
Having satisfied all the other gateway requirements, whether Betty is successful will depend upon her proving that they were in a genuine de facto relationship.
What makes a genuine defacto relationship?
In deciding whether Bob and Betty were in a genuine de facto relationship for the first gateway criteria, the court will have regard to the following matters.
Section 4AA of the Act defines a de facto relationship. The Act requires that Bob and Betty must have had a relationship as a couple living together on a genuine domestic basis for a defacto relationship to exist.
The Act then gives a list of factors to consider in deciding if Bob and Betty had a relationship as a couple living together on a genuine domestic basis.
Those factors are:
- the duration of the relationship (8 years – this is good for Betty);
- the nature and extent of common residence; (the parties lived separately and only spent holidays and 6 nights a month together – this is not good for Betty’s prospects);
- whether a sexual relationship exists or existed (it did – again this good for Betty);
- the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties; (Bob and Betty were financially independent of each other – this is not good for Betty);
- the ownership, use and acquisition of their property (Bob and Betty did not buy any assets together, and they owned their own homes and vehicles. Again, this is not looking good for Betty);
- the degree of mutual commitment to a shared life (this appeared to be in existence, however Bob says they were just taking one day at a time and if the relationship did not last, then so be it. Bob says Betty was of the same view, but non-surprisingly in her affidavit she claims that this commitment to a shared life existed. The Judge may need to decide based on credit, who is telling the truth in a “he said she said” argument, and objectively it is difficult to figure out from the facts, which are (like every case) so unique. Given that Betty has the onus of proving the facts I will give her a fail on being able to prove this joint commitment);
- whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship (this relationship was not so registered, and this issue is really for same sex relationships before amendments were made to the Marriage Act to allow same sex couples to marry – this is not relevant to Bob and Betty who were very much male and female);
- the care and support of children; (there are no children together, another blow for Betty) and;
- the reputation and public aspects of the relationship (I will give this one to Betty because all their family and close friends knew them as a couple, and when in public together they acted as couple).
No one factor is more important than any other. However, the more factors from this list that Betty can prove will aid her in convincing the Court that there was a de facto relationship. Likewise, the more factors that Bob can disprove will help show that there was not a defacto relationship in existence.
Betty is looking good on 3 of the above factors (duration of relationship, a sexual relationship and public perceptions), however Bob is looking much better on 5 of the factors (no common residence, financially independent of each other, property ownership use and acquisition, no mutual commitment to a shared life, and no children together).
There is not a certain number of factors from the list that must exist (or not exist) for a defacto relationship to be proven (or disproved for the absence of a defacto relationship).
There is also no minimum number of nights that the parties must spend together in a common residence, nor is there a need for the parties to have actually lived together at all before a defacto relationship will be found to have existed.
The Family Law Act also recognises that a person who is married, may also possibly be in a defacto relationship with another person at the time. A person can also be in several de facto relationships at the same time if the test is satisfied for each of those relationships.
Does Betty succeed?
If I were acting for either Betty or Bob, I would be able to argue very strongly in either of their cases of the existence or non-existence of a defacto relationship. Who will win will depend on how the evidence falls at the hearing, matters of credit and what factors the Judge considers to be most important in deciding the matter one way of the other. Judges have very wide discretion in deciding these matters, one Judge might say there was a defacto relationship, while another Judge (or the Court of Appeal) may decide that there was not.
If I were a betting man, my money in this case would be on Bob, but I would not put too much money on the bet. This is close to a 50/50 chance. It could go either way.
If I were advising Betty or her prospects of success, I would be telling her that she has a compelling case, but I would be testing her to see if she accepts whether it is worth the risk. If Bob opposes the existence of a defacto relationship (which he will) Betty will have to pay significant legal costs that will be involved if the matter goes ahead all the way to a final hearing. She will need to weigh that up with the amount that she is looking for, and her prospects of success. The normal rule in family law cases is that each party pay their own legal fees.
If I were acting for Bob, again I would be telling him that he also has a compelling case. I would recommend that he strongly oppose Betty’s application on the basis that there was no defacto relationship and gather as much evidence as he can to support this conclusion.
Generally, matters like this will settle at mediation, with both parties accepting that going to Court will be expensive, taxing on their time and their emotions, and involves a serious risk that they each might fail.
Time limit to start proceedings for financial orders
If (despite her legal advice on costs and chances of success) Betty still wishes to try to obtain financial orders, and settlement of the matter at a mediation fails (neither Bob nor Betty will shift from their positions), then Betty must apply to the court within two (2) years of the breakdown of the defacto relationship. After that time, she would need the leave (permission) of the Court to apply, and the Court does not readily give that leave.
For all legal advice on property or parenting issues, please contact our Gold Coast Lawyers firm and make a free first appointment with Gary Mallett.
Sometimes you simply must tell the truth, the whole truth and nothing but the truth. A lie by omission – something you do not mention when you should – is still a lie. Australian law dictates that people seeking resolution of certain issues related to separation or divorce must make certain information available to each other, and to the court. This is called the duty of disclosure.
When it applies
As stipulated in Family Law Rules 2004 (“the Rules”), the duty of disclosure applies to you when you are seeking resolution of financial matters in a separation or divorce. This means you must make certain information available to your former spouse or partner in property settlement, spousal maintenance, and similar cases.
You and your former spouse or partner must also exchange certain information when seeking resolution of parenting matters. This may include but is not limited to: living arrangements, visitation, and child support.
The timing and extent of disclosures
Legally, you must make “full and frank disclosure” of all information that has direct bearing on any point of contention in your case. In other words, you must give any pertinent material that you actually have, or that you have access to or authority over. And you must do so before the case goes to court.
It is best to be aware that both parties have this duty, and that it is ongoing. This means you must report any relevant changes – such as a job change or loss of employment – to the other person, and they must make similar information available to you. Your respective obligations to exchange pertinent information will not end until you reach an agreement, or the court issues a final order.
Finally, it is important to note that there are no legal stipulations about the way in which this material should be given, so it does not matter if you share electronic or paper records. The information you must give will also vary based on case type and your situation.
Your duty of disclosure in financial cases
In these cases, both of you must give comprehensive information about your respective financial circumstances. This usually means you must supply any or all the following:
- Documents reflecting your regular earnings;
- bank statements reflecting deposits and withdrawals from checking accounts, savings accounts and so on;
- tax documents;
- superannuation statements;
- material documenting the valuation and appraisals of assets;
- material about financial resources other than income, along with supporting documentation;
- information about interests in any company and/or trust, along with supporting documentation;
- information about any assets disposed of prior to and since separation.
Please bear in mind that this is not an exhaustive list, and you may need to give different and/or more material given that each case is unique.
Your duty of disclosure in parenting cases
In disputes over parenting matters, both of you must give information the court needs to make decisions about the care and living arrangements for a child. Specifically, you must supply any material relevant to the child’s welfare. As in financial cases, however, the type of information will depend on your unique circumstances.
The following is generally subject to disclosure in parenting cases:
- The child’s (or children’s) school reports;
- relevant assessments about the child/children and/or parents issued by doctors, psychiatrists, psychologists, social workers and so on;
- information about the amount of time the parent spends at work;
- information about the supervision of the child/children when they are not with you;
- information about any issues that affect each parent’s ability to care for the child, such as substance abuse, mental illness, or chronic medical conditions;
- official documents about any family violence, including intervention orders, police reports or relevant statutory body reports.
Penalties for noncompliance and dishonesty
Rule 13.01 of Family Law Rules allows the court to disregard any material that has not been fully and properly disclosed in finance cases. If you do not fulfill your duty of disclosure, the Court may also be reprimand you for contempt of court.
At its discretion, the court may also issue a costs order against you for failure to meet this obligation fully and truthfully. If it does, you will have to pay not only your own legal costs but also those incurred by your former spouse or partner. In the most drastic cases, you may be fined or incarcerated.
If either one of you finds out that the other failed to fulfill the duty of disclosure prior to the issuance of family law final orders, the aggrieved person can ask the court to change the order or set it aside. The court may also vacate or amend a final family law order if either of you have not fulfilled your duty of disclosure before it is issued.
As we have noted, each case is different. If you are going through separation and divorce, and you have questions about the type of information you have to disclose, contact our Gold Coast Lawyers today.
Clarifying Binding Death Nominations in Superannuation
Re Narumon Pty Ltd  QSC 185
A recent decision in the Queensland Supreme Court, Narumon, emphasizes the importance of a valid Binding Death Benefit Nomination (BDBN) within superannuation funds and clarified whether an attorney has the ability to renew BDBN’s.
Summary: In Narumon, the deceased (Mr. Giles) was the sole member of the John Giles Superannuation Fund. Mr. Giles appointed his wife (Mrs. Giles) and his sister (Mrs. Keenan) as his attorneys under an enduring power of attorney (EPOA) for financial and personal/health matters. His attorneys were to begin making financial decisions on his behalf when Mr. Giles had been determined incapable of making his own decisions. In November of 2013, that very situation occurred and Mr. Giles was declared completely incapable of making his own financial, health, and lifestyle decisions. From then on, his wife and sister were authorised to act as attorneys on his behalf.
Mr. Giles made several BDBNs before he lost capacity. The most recently created BDBN was on the 5th of June 2013, which directed his attorneys to distribute his superannuation death benefits, a portion of which were obviously left to his wife and sister, who just so happened to also be acting as his attorneys. Additionally, 5% of Mr. Giles’ death benefits were to be paid to a non-dependent and non-legal representative. The 2013 BDBN stated that three years after the date it was signed, it would cease to have effect and must be signed within three years of the member’s death.
Issue: 5% benefit to non-dependant and non-legal representative
In order to ensure that the 2013 BDBN and its extension were valid, Mrs. Giles and Mrs. Keenan decided to change the 5% nomination to a non-dependant and distribute it between the dependant’s already nominated. The court, however, confirmed that the original 2013 BDBN was valid, despite the 5% nomination to a non-dependant. The reallocation was found to be a conflict of interest and, since there was no explicit language in the BDBN allowing such a conflict, the new BDBN would not be valid.
Issue: May an attorney make a BDBN?
The court held that, yes, an attorney has the power to make a BDBN on a member’s behalf. His Honour looked closely at the language of the deed. The deed did not prohibit such an act. In fact, another section expressly stated that an attorney would enjoy all of the rights that a member would have. Since there was no restriction under the Superannuation Industry (Supervision) Act of 1993 preventing an attorney from making a nomination, there was nothing to prevent Mr. Giles’ attorneys from making a nomination on his behalf.
Issue: Validity of the 2013 Binding Death Benefit Notice
The issue in question was whether or not Mrs. Giles and Mrs. Keenan would be allowed to renew the 2013 BDBN or make a new one, despite also being recipients. The Court considered whether or not there was a conflict created by the dual interests of Mr. Giles’ attorneys. In the end, the judge ruled that there was no conflict created.
The judge reasoned that because they were merely confirming existing estate planning intentions, there was no conflict. However, it is unclear whether making one from scratch would also be allowed or if that would be considered a conflict. Therefore, it is clear that the individual circumstances for each case will need to be considered in determining whether or not a BDBN renewal is likely to be valid.
“This is the first time it’s been considered as far as I’m aware of, that an attorney subject to the trustees of the super fund is able to renew a binding death benefit nomination for the person for whom they are the attorney,” said Scott Hay-Bartlem of Cooper Grace Ward Lawyers after the judgement.
Contact our Gold Coast Lawyers today for more information.