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Seeing Your Children This Christmas

Seeing your children this christmas

The festive season should be a time of fun and togetherness. Unfortunately it often turns into a nightmare for parents who are separated especially in regards to spending time with their children.

If you and your ex are in dispute you are often left asking these questions:

• Will I get to see the children during the holidays?
• How long will I have them for?
• Can the children and I have Christmas together?
• Will they be able to spend time with my extended family?

So what are your options:

1. SEE A SOLICITOR

It is advisable to consult a Solicitor at the outset in order to look at your options and be informed of your rights. A solicitor can guide you through the entire process and try to make it as simple and seamless as possible.

2. MEDIATION

The Court encourages parents to try and resolve these issues between themselves. Couples are often required to attend mediation with a positive view to resolving the matter. A genuine attempt needs to be made to deal with any issues.

It is imperative to keep the best interest of the child or children always in the forefront and be able to look past individual grievances so as to reach a solution and resolve issues as swiftly, smoothly and seamlessly as possible.

In many situations a person might be exempt from attending mediation if the matter at hand is urgent, or where a parent is unable to participate due to an incapacity or lack or physical proximity or if there are concerns in regards to the risk of child abuse or family violence, or if there is an alleged contravention of an Order made within the last 12 months.

3. COURTS

If an Agreement cannot be reached or time does not permit, the Court can be approached as a last resort. If however an Agreement is reached your Solicitor can help draft the terms of an agreement in the form of Consent Orders and lodge them on your behalf with the Court.
You do not have to face this stressful time alone. We at McLaughlin & Associates are here to provide you with the help, support and guidance so that you do get to spend time with your children these holidays.

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.

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.