I’ll See You In Court

We Can’t Agree on Our Property Settlement

The Right Time to Formalise Cohabitation

10 Tips to Streamline the Split of a De Facto Relationship

9 Tips When Separating

Taking Children Overseas

taking children overseas

A child travelling overseas with a parent can often be an area of concern between separated couples especially when one party has their family roots in a different country. It is illegal to travel overseas with a child under the age of 18 years if Parenting Orders are in place, without permission of all the parties to the Order or an Order of the court permitting travel.
What are your options:

1. SEE A SOLICITOR:  Speak to your Solicitor so that they may communicate on your behalf with your ex and resolve travel arrangements and particulars quickly and amicably.

2. MEDIATION: In the instance communication via solicitors fails invite the other party to Mediation in order to address the issue. If the matter is not resolved at Mediation, the Registered Family Dispute Resolution Practitioner will give you a 60 I Certificate (Family Dispute Resolution Certificate). This Certificate is required to bring an Application before the Court.

3. COURT: Courts are often approached as a last resort. Lodge an Application with the Court in relation to Parenting Matters. You should give yourself enough time, at least 6 months, before your proposed holiday to lodge your Application and have the matter heard and addressed.

A. In order to determine the outcome of an Application the Court takes the following into account:

(i) Length of the proposed holiday

(ii) Effect on the child due to time away from the non-travelling parent

(iii)  Any threat or concerns for the safety of the child or children travelling

(iv)  Whether the Court is convinced that the party travelling will return to the Australian jurisdiction

 

B. The party intending to travel might need to provide the following evidence to the Court:

(i) Proposed length of stay and the purpose of travel

(ii) Benefits, if any, to the child/children from this travel

(iii) Itinerary of proposed travel, copy of the airline tickets, flight details and accommodation details to be provided to the Court and the other party prior to departure

(iv)  Places where the child/children will be staying, contact details, address, e-mail addresses and phone numbers

(v)  Proposed method or methods of communication between the child/children and the non-travelling parent

(vi) Evidence of ties between the travelling parent to Australia such as employment, business interests, close family ties, house, property or assets

(vii) Whether the intended country of travel is a signatory to the Hague Convention on Child Abduction

 

The Court is often concerned about the fact that the party travelling with the children might not return to Australia. The Court might in that instance require a surety to be provided by the parent intending to remove the children from the jurisdiction and to ensure the safe return of the child/children.

The sum for the surety is determined so as to be realistically enticing enough to ensure the return of the travelling parent and sufficient enough to enable the non-travelling parent to take measure for the recovery of the children in the event of an unfortunate turn of events.

If you are intending to travel with your children steps need to be taken well in advance of your departure date so that you are not stopped at the Airport.

Don’t Be Threatened Into Doing Nothing

dont be threatened into doing nothing

 

So often we come across situations where a client has been reluctant or hesitant to proceed with a separation, property settlement, or children’s matter because of threats or blackmail from their partner.

Quite often a husband will threaten his wife that he will show she is “an unfit mother” because of something she did in her youth or something which the wife and husband both participated in consensually during the course of their marriage.  A spouse/partner may quite often feel that they would suffer public humiliation over their escapades and that it will end up splashed across the newspapers and over the internet.  We have had innuendoes about sexual escapades, social drug taking, and shoplifting levelled against clients in the hope that they will cave in.

Often a client will relate to us that their partner has threatened that if they don’t give in to their demands or if they don’t get what they want they shall bring up blah, blah, blah or that if he or she tries to leave they will never see their children again because they will let it be known that blah, blah, blah.

Two things prevent this bullying from succeeding.  Firstly, we as lawyers have a duty to the Court not to unnecessarily raise irrelevant, unnecessary, or intentionally inflammatory or embarrassing matters which have no relevance or bearing on the case at hand.  So therefore what a person may have done in their youth or may have done in the past will not and should not be raised unless it has some relevance to the property settlement and/or children’s issues and invariably they don’t.  In fact the Court takes a particularly dim view of a party who seeks to use or capitalise on such issues.

Before a trial commences each of the parties make submissions to the Court to strike out any offending or irrelevant material from the record.  If successful, reference cannot be made to that issue in the course of the trial and the Judge does not take it into account.

Secondly, there is a ban imposed on anyone publishing the names, address, or employment of a party in Family Court proceedings.  It extends to witnesses and to anything which may lead to the identification of a party or witness to the proceedings.

So even if for some reason the circumstances of a case were published in the papers it would be done in such a way that the parties identities are not revealed.  You may have seen newspaper reports of Family Court proceedings where the parties are referred to as, K v K or C v C.  That is to protect the identity of the parties.

Section 121 of the Family Law Act is unequivocal in stating that:

1.   A person who publishes in a newspaper or periodical publication or by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this act that identifies:

(a)   A party to the proceedings;

(b)   A person who is related to or associated with the party to the proceedings or is, or is alleged to be in any other way concerned in the matter to which proceedings relate; or

(c)  A witness in the proceedings;

is guilty of an offence punishable upon conviction by imprisonment for a period not exceeding 1 year.

It’s amazing the relief that I have seen from the faces of clients who may have been held to ransom for years by belligerent, bullying, overbearing, and intimidating partners when they realise that their “little secret” is not going to end up on the front page of the morning paper and that they can stare their partner down thus allowing them to pursue their full rights and entitlements without fear.

Legalese and Parenting Matters

Legalese and Parenting Matters

Family Law Practitioners no longer refer to terms such as “custody” “access” and “guardianship” when dealing with parenting matters as these terms imply ownership. There are no property rights which attach to children.

Instead the following terms are utilised:-

“LIVES WITH” – which details the person with whom a child/ren is to live;

“SPENDS TIME WITH”  which defines the extent of contact between a child/ren and the other parent;

“SPECIFIC ISSUES”   which sets out various aspects of parental responsibility, such as schooling.

Unless a Court orders otherwise, there is an automatic presumption that both parents equally share parental responsibility for their children until the children reach the age of 18 years.  This parental responsibility remains whether or not either party decides to remarry or have other children.

When parents are able to agree with whom the children live with and also agree when they are to spend with the other parent, we recommend that a written Agreement be signed by the parties and filed with the Court. These Agreements are known as “Consent Orders”. The reason why we recommend parents enter into Consent Orders is that unfortunately sometimes relations between parents deteriorate after separation. Consent Orders provide an enforceable obligation (which is enforceable on both parents) regarding the care of the children.

Occasionally parents need assistance to work out what is the best care regime for their children after separation.  In this instance, mediation is beneficial to bring about a resolution without the intervention of the Court.   Once mediation has been undertaken and a resolution reached, the Agreement can then be documented into Consent Orders.

If parents are unable to agree on parenting matters, then a Judge will make Orders specifying with whom the children are to live with and the time the other parent is to spend with the children.

Where a matter is referred to the Court, a Judge’s first and foremost concern is “what is in the best interests of the child”, not what is in the best interests of Mum or Dad. Therefore, we find that it is much better for parents to enter into an Agreement that they can both live with and operate within the scope of an Agreement instead of a Judge imposing an order on the parties.

Do Grandparents Have Rights

do grandparents have rights

 

Frequently in today’s busy society, grandparents are being called upon to spend their retirement years assisting in the care of their grandchildren, especially where both parents are working. A strong bond between grandparents and grandchildren ensues as grandparents invest their time in the important role of nurturing and developing their grandchildren when their parents are at work. When a divorce fractures a family unit often the bond between grandparents and grandchildren is overlooked.

Often grandparents suffer the heartbreak of their child’s divorce, not only because heir child is in pain, but because they find that they can be cut off from contact with their grandchildren, especially where the divorce is bitter and hostile.  This is traumatic to both the grandparents and the grandchildren. This is particularly relevant where, for example, the father’s parents have been caring for the children but after separation the mother refuses to allow them access to the children or vice versa.

What can grandparents do in this situation? The Family Law Act recognises that the best interests of the children are a paramount consideration when determining who they shall live with and spend time with. A fundamental factor in this is the role that a grandparent can play in the care and development of their grandchildren and the strong attachment they may have with each other. The law recognises that families are unique and that persons, other than parents, can also provided a significant role in the upbringing of children.

Each matter is judged on its own particular set of circumstances and merit. Grandparents have the right under the Family Law Act to bring an Application to the Court and be heard on the issue of contact with their grandchildren.  If a Judge determines that it is in the best interest of the grandchildren that they would be well served by spending time with their grandparents then the Court will make an order to facilitate this contact.

However, Court should only be viewed as a last resort as it is expensive and can lead to the exponentiation of conflict and create more bad blood between waring partners. An alternative to Court is mediation or negotiation with a view that an agreement can be reached between the parents and grandparents regarding the ongoing contact grandparents are to have with their grandchildren.

Property Settlement for De Facto

property settlement for de facto

Until recently the law governing defacto relationships was vague and confusing to say the least but now there is new legislation in the Queensland Property Law Act which will hopefully make things easier when defacto couples separate, with regard to property settlement.

One plus is that defacto couples in Queensland will now have easier access to the Courts to settle their disputes and achieve an amicable property settlement outcome. Previously, a defacto spouse generally had to rely on the law of trusts to establish a claim on property which was not registered in his/her name. The new Legislation is similar to the law governing division of property for married couples.

Who is a defacto spouse? The Act describes a defacto spouse as “one of two persons, whether of the same or the opposite sex, who have lived together as a couple”.

The first thing that you will notice is that the Act covers same sex couples.

Two people are a couple if they have lived together on a genuine domestic basis, in a relationship based on intimacy, trust and personal commitment to each other. Therefore, two people living together merely as flatmates cannot be considered as living in a defacto relationship and cannot come within the Act.

As Brisbane’s experts in Estates, we’re here to help you on your journey.

 

Questions?

If you have any questions about this blog post, do not hesitate to contact McLaughlin & Associate Lawyers via call or email.

Alternatively, you may visit our office in Springwood.

The Pole Dancer and the Prenup

The pole dancer and the prenup

Prenup agreements are now part and parcel of the Australian Legal Industry whereas they used to be something you would only read about in the Hollywood tabloids.  However, amongst the legal fraternity there has been growing fears as to how watertight these agreements are.  Many lawyers are now worried that they themselves will be sued by disgruntled clients whose agreements haven’t stacked up in the eyes of the Court.

The Sun-Herald has reported that thousands of pre-nuptial agreements may be ruled invalid if one man’s mission to extricate himself from a multi-million dollar payment to the pole dancer he married is successful.

Lawyers are closely watching what is known in family law circles as “the pole dancing case” for its potential to disrupt every agreement signed since 2004 amid claims the legislation surrounding pre-nuptial agreements is in “disaster territory”.

The man, who was given the court pseudonym of Mr Wallace, is challenging his pre-nuptial agreement on several grounds, including that the law governing such agreements is faulty.

Mr Wallace became besotted with pole dancer Ms Stelzer after meeting her at a Sydney club around the time he separated from his first wife. They married seven years later in 2005.

The parties entered into a pre-nuptial agreement that provided that Mr Wallace would pay Ms Stelzer $3.25m if their relationship broke down within four years. They separated less than two years after they married.

Mr Wallace, who has net assets of over $16m, is now claiming the agreement is invalid. He claims that Ms Stelzer, who has just over $10,000 in assets, behaved fraudulently when she professed before the marriage that she loved him, wanted to have children with him, and spend the rest of her life with him.

Mr Wallace also provides that his original solicitor did not give him proper advice on the advantages and disadvantages of entering the agreement. His current solicitor, Trevor Hall, asserted that the weakness of the legislation meant no financial agreement signed between couples was safe. “Every binding financial agreement ever entered into is at some risk of being set aside if years later a spouse wants to suggest that the advice they received was not proper legal advice”, Mr Hall said.

In 2004, amendments were made to the Family Law Act that required solicitors to certify they had taken certain steps to ensure their clients understood their agreements. This resulted in a wave of litigation with people attempting to avoid their obligations on the basis that their lawyers had not followed those steps meticulously. In 2010, amendments were made to the Act relaxing the wording.

Mr Wallace claims the changes should not apply in his matter retrospectively as that is unconstitutional.

The appeal has alarmed the Attorney-General for its potential to affect thousands of agreements. It has appointed Senior Counsel to intervene in the matter, joining Ms Stelzer’s barrister in maintaining the agreement is valid.

Family lawyer Duncan Holmes said more people were challenging their agreements on the basis of inadequate legal advice and lawyers were concerned about their liability. “The legislation is in disaster territory”, Mr Holmes said. “Well intentioned legislation is getting corrupted and lawyers are running scared”.

In 2011 His Honour Justice Benjamin upheld the validity of the pre-nuptial agreement saying that Mr Wallace’s case was coloured by criticism of Ms Stelzer, whose evidence he preferred. “At many levels this criticism seemed to endeavour to demean her and their relationship, bearing in mind the wife’s initial occupation and the circumstances of their meeting”, His Honour said.

Mr Wallace has appealed to the Full Court of the Family Court of Australia.

 

As Brisbane’s leading experts in Family Law, we’re here to provide you guidance and equip you with what you need to know in prenup agreements.

 

De Facto Property Disputes

de facto property disputes

A defacto spouse can now apply to the Court for a division of property where:-
(a) The relationship was for a minimum of two years; or
(b) There is a child of the relationship under the age of eighteen; or
(c) Where you can’t bring yourself within (a) or (b) but can show that a serious injustice would result from failure to recognise a defacto spouses financial or non-financial contribution.

So even for relationships of a relatively short duration say six to twelve months, you can still make application to the Court for a division of property where you can show a serious injustice would result.

Such applications must be brought to the Court within two years of the end of the relationship.

A defacto spouse still has the right to seek child maintenance pursuant to the Child Support Act and other disputes concerning children such as residence and contact can still be dealt with by the Family Court.

Property Disputes

Unfortunately, couples cannot always agree as to the division of property upon the breakdown of a marriage. Others simply don’t know what they are entitled to and need advice as to their entitlements.

At McLaughlin & Associates we take a caring and sympathetic approach to matrimonial matters. We try our hardest to ensure that property disputes are resolved between the parties without the need to go to Court and on average 90% of disputes are able to be resolved without the need for a Court hearing.

If agreement can be reached with your spouse on how to divide up your assets/liabilities an Application for Consent Orders can be made to the Family Court. If you are unable to reach an agreement, you can apply to the Court for Property Orders.

The law governing the division of assets is complex and therefore, we strongly recommend that you seek our advice before making any decision on such division.

What Does ‘De Facto’ Mean for Me?

what does de facto mean for me

Generally the question of whether or not a de facto relationship existed will occur and one of them seeks to divide up the property. When this happens, the dynamics of the relationship is reviewed to establish whether or not the couple have/has lived together in a ‘genuine domestic basis’.

The term ‘genuine domestic basis’ contains a number of factors and is the foundation of what forms a de facto relationship.

These factors are contained in the Family Law Act and include:-
• Length of the relationship;
• Did the parties live together, and if not why not;
• Whether a sexual relationship existed between them;
• The degree of financial dependence or interdependence and any arrangements for financial support;
• Ownership, use and acquisition of property;
• Whether the relationship is or was registered under a State law as a prescribed kind of relationship*;
• The degree of commitment to a shared life together;
• The care and support of children;
• The reputation and public aspects of the relationship.

This is not an exhaustive list and the particular circumstances of each couple are taken into account.  No one factor is more important than the other nor is the genders of the couple.

There is a common misconception that couples need to live together for two (2) years before they are classified as de facto partners.  This is not correct. Living together in a ‘genuine domestic relationship’ does not have a specific time period associated with it.

However, there are time factors which may apply when a party wishes to commence court proceedings for division of property.

Generally, the question of whether a de facto relationship exists is relatively simple to answer and most parties agree when separation occurred.  However this can become a complex issue. For example, what happens in a situation where a couple continues to live in the same house to raise their children, but in all other respects are living separately? In this instance one party may believe that they have separated (they may no longer be sharing a bedroom or they may be keeping monies separate), but the other party may believe they are still together.

The key question which needs to be answered is – did one party form the intention to separate and did s/he act on that intention?  A secondary matter is  –  was that intention to separate communicated to the other party?

If this is disputed, then the couple’s actions and their finances will be relevant. For example:-
• has a party been excluded from the other party’s family events;
• did they go out together as a ‘couple’,
• has the other party been removed as a spouse/partner from tax returns, or
• have they severed their financial connection to such an extent to demonstrate the lack of mutual commitment to a shared life?

If separated couples are unable to agree whether a de facto relationship existed or not, or about the date of separation, then the Family Court has the power to make a declaration on this matter.

Property Settlement

property settlement

 

Today I wish to discuss property division and what things the Court takes into consideration when making its decision.

The first thing to ascertain is the asset pool. In other words, one needs to identify all the assets (and their value) of both parties. Generally, all assets must be taken into account, whether they were obtained before or during the marriage, or even after separation.

The definition of “property” is very wide and includes everything that you and your spouse own either jointly or separately. For example, any real estate, shares, motor vehicles, jewellery, savings and household contents/furniture whether registered in your name solely or in both names.

It is also necessary to take into account ‘financial resources’ such as superannuation entitlements, interests in any trusts, long service leave entitlements, personal injuries claims etc.

The Court also looks at each parties contribution towards acquiring, increasing, maintain or improving any asset. Both financial and non-financial contributions are considered. For example, if one party has been running and looking after the household and caring for the children whilst the other spouse has been working fulltime and earning income, the non-working spouse is deemed to have made a contribution as a homemaker and parent and their non-financial contribution is taken into account. Initial contributions towards the marriage such as who brought what assets into the marriage as well as gifts and inheritances are also relevant.

In deciding who gets what, the Court also has regard to the future needs of both parties taking into account a wide range of things such as each parties age, health, income earning capacity, if they have the care of any children etc etc.

The law governing the division of assets is very complex and therefore, you should obtain legal advice before making any agreement with your spouse.

Book a consultation at McLaughlin & Associate Lawyers to ensure you receive Brisbane’s best legal services.

Civil Partnerships, Different From Marriage?

Civil Partnership

A lot has been said and written about the new Civil Partnerships Act but what is it really all about?

Basically the Civil Partnerships Act allows all de facto couples (whether heterosexual or same sex) to formalise their commitment to each other and this union will be registered at the Births Deaths and Marriages Registry, just like a traditional marriage.

The first of these ceremonies was held on 5th March 2012.

And, just like a marriage, if the parties want to terminate their Civil Partnership, they will need to apply to the Court to dissolve the union.  However unlike married couples, an Order made by the Court takes effect on the day the Order is made, so there is no waiting 30 days for the Order to become absolute.

So what does this new Act mean for couples?

Well, for separating heterosexual de facto couples, there is really no change. Heterosexual de facto couples will continue to enjoy the same rights for property settlement that they presently do, which are the same rights as for married couples. However, by formalising the relationship it takes away any argument as to whether a de facto relationship exists.   This will provide more certainty to the parties that their relationship will be governed by Family Law.

In the case of same sex couples it means the public and government’s formal recognition of their relationship.  It takes away any argument as to whether a couple are in fact in a de facto relationship.

One of the biggest impacts will be on a person’s Will and Power of Attorney. Presently a Will or Power of Attorney is only revoked upon the marriage of the person however, should a person now enter into a Civil Partnership, that union will also automatically revoke a person’s Will and Power of Attorney unless there is a contrary intention shown in the document.

Therefore it is important for a person entering into a Civil Partnership to make sure that they have a valid and enforceable Will and Power of Attorney.

Children’s Issues

children issues

As child custody lawyers, today I will talk about children’s issues when couples separate. Since 1996, the Family Law Act was amended whereby the words “custody”, “access” and “guardianship” are no longer used. Court orders in relation to children now include:

Residence
– defining the person with whom a child is to live;
Contact
– defining the extent of contact between a child and another person;
Specific Issues
– defining various aspects of parental responsibility.

Both parents have full responsibility for the children until they reach the age of 18 years unless a Court orders otherwise. This responsibility remains whether or not you decide to remarry or have other children.

If couples agree as to residence and contact I recommend that a written agreement be signed by the parties and filed with the Court. These agreements are known as “Consent Orders”. The reason I recommend this is that unfortunately, sometimes relations between a couple deteriorate after separation and whilst the parties are on good terms these matters should be resolved, especially where the children are young.

If unfortunately, parents can’t agree on matters relating to their children then the matter is referred to the Court and a Judge will make orders specifying with whom the children are to reside and the terms of contact for the non-resident parent.

If the matter is referred to the Court the Judge’s first and foremost concern is “what is in the best interests of the child”, not what is in the best interests of Mum or Dad. What is in the best interests of the child, as regards with whom that child lives with, how often a child has contact (if at all) with the non-resident parent etc.

It is also open to grandparents to make application to the Court for contact with their grandchildren as normally it is in the child’s best interests that they have such contact.

If you need to contact child custody lawyers, please call us on 07 3808 7777 or send us an email.