How might separation impact my business?

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One of the first questions we are often asked by our business owner clients is what impact a separation is going to have. You spend years building an empire, whether it be large or small, and you are understandably anxious about how separation will effect what you’ve built and what the future holds.

The first step is to ensure that there can be no immediate impact on the running of your business. Any fallout from the inter-personal relationship with your former partner or spouse must be managed so that it does not impede its operational running or damage its reputation. We assess the risks with you as some urgent matters may need to be attended to, particularly if your ex has access to business accounts, important documents or the premises or staff generally.

In more severe cases where attempts to curtail damaging behaviour have been exhausted, or urgent and swift action is required, there a range of remedies available from the court. This can include restraining a person from taking certain steps which may cause loss to you or the business. In our experience, a firm approach from the start can assist in resolving such issues quickly without litigation. However, where harm to business operations is imminent, an application may need to be filed with the court without delay to protect your business and assets.

Once any urgent issues are identified and dealt with, attention can be focussed on crafting a settlement to finalise the financial aspects of your separation. Settling matters early can save on legal costs and the emotional strain associated with protracted negotiations or litigation.

An initial step towards this finality is making disclosure of your financial circumstances. In our experience, the quickest way to create tension, distrust and a sharp escalation in fees is to be opaque in the way someone discharges their duty to make full and frank disclosure. If an opposing lawyer deems that the other party is refusing to make disclosure or is not being forthcoming with the documents needed to advise their client, chances are they are advising on their end to file proceedings in the court to obtain an order for disclosure. This should be avoided as there are lengthy queues in the court and litigation can be costly. We will guide you on the necessary documents to disclose having regard to the nature of your entities and extent of your assets, liabilities, superannuation and financial resources.

It is often a good idea to involve your trusted accountant at an early stage if they were not already involved from the outset. We have had many initial meetings with clients and their financial advisors to gain clarity at the first meeting about what clients want to achieve and how value can be added to their affairs through restructuring as part of the family law process. It is also important to be across any potential taxation consequences of a proposed settlement, Division 7A issues, the structure itself (including trusts interests of the parties and associated issues), future asset protection and other such important matters.

In some cases, the accountant is also trusted by the former spouse or partner and can play a positive role in achieving a settlement sooner, such as facilitating the efficient exchange of disclosure and even in reaching agreement on a value for a business to avoid the cost of an independent valuation as part of the family law process.

Coupling anxiety about what the future holds for your business with the emotional stress of a relationship breakdown itself can take a significant toll. We take a no-nonsense and pragmatic approach to advising our clients, guiding them on the path that will best achieve their goals, protect their interests and allow them to get on with the important job of running their business or home or whatever else should be taking priority.

Contact us today for an initial consultation with Shannon Daykin, an Accredited Family Law Specialist, to discuss your business, protecting your interests and how we can assist in resolving your property settlement as efficiently as possible.

What happens when you appoint a family law solicitor?

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When you sit down with your family lawyer at the first consultation, we are doing many things:

• Gathering relevant facts
• Discerning instructions
• Identifying issues
• Applying the law
• Reality testing your instructions

And something also vitally important. Forming a case strategy.

In many matters that we deal with every day, there are elements of complexity but usually none so insurmountable that litigation in the Courts is the only answer from the outset. The queues in the Courts are long, often taking litigants a number of years to get through the system and to the point where they receive a judgment.

In resolution-focussed matters, we devise a pathway to get you from A, where you are now, to B, where you want to be. As part of that, we’ll tell you the most cost-effective way to get there and the issues that can lead to more fees.

We then apply the necessary tools from our experience and expertise to work towards the end game as efficiently as possible. When dividing assets after the breakdown of a relationship for example, there are steps to follow to get you where you want to go. This starts with working out the joint assets, liabilities, superannuation and financial resources, and the documents we need to fill in the blanks so there are no ugly surprises later.

Once we have a clear picture, we can then advise you on your range of entitlement if the matter was to go to Court, so you can make informed decisions on making or receiving offers. Once an agreement is struck, we can draw up the necessary documents recording the agreement within a matter of days.
When there is a willing party and/or a like-minded lawyer on the other side, this process can take place relatively quickly with little fuss. The less time us lawyers are involved, the more money you keep in your back pocket and can move forward onto the new chapter knowing this one is firmly closed.

If this is the way you want to resolve your family law matter, then us lawyers need to act accordingly at every step. Bringing an aggressive approach from the start and raising hot buttons in letters back and forth with no real net effect is not the way to get you there. These actions can damage any goodwill in the negotiation process and lead to an unnecessary increase in fees and more time delaying a settlement. It can also lead to a steep demise in the co-parenting relationship where children are involved which can have devastating consequences for all family members.

Doing what we do for as long as we have, we know the hills to fight for and those to take the path of least resistance on for each and every matter. We get to know our clients and what is important to them and discuss with them their options and how a particular course of action might play out. It would be difficult to understand how any client could give instructions on major issues to their lawyer without having this guidance.

Road blocks do arise in family law matters, but they need to be dealt with quickly. A proactive approach can often mean the difference between an issue snowballing and increasing the costs for both people involved, or being dealt with quickly so it doesn’t have a ripple effect to whatever else you are trying to achieve. An expert hand can make all the difference.

Sometimes, a firm approach or litigation is needed when all other reasonable alternatives have been exhausted. This is not open slather however and lawyers are charged with the task of progressing matters towards finality and narrowing issues wherever possible. Having read the comments of some Judges in recent family law court matters about the damaging and litigious approach taken by some law firms south of the border, it’s a stark reminder of the role us lawyers play.

Finding the right approach for you is paramount to resolving your family law issues sooner. If you feel that the approach taken by your current family lawyer is not quite right, talk to us. We will give you an honest appraisal on the current status of your matter and recommendations on how you could achieve your goals. Sometimes a fresh pair of eyes can be invaluable, consulting with a lawyer with a different skill set or who assesses your matter as needing different action or focus.

Shannon Daykin is an Accredited Family Law Specialist and collaboratively trained lawyer in Brisbane practising in all areas of family law. Shannon was recognised in the 2018 Doyle’s Guide listing of leading Brisbane Family & Divorce Lawyers practising within the areas of family law, matrimonial, parenting, property and spousal maintenance matters in the Queensland legal market as a solicitor who has been identified by her peers for her expertise and abilities in these areas. Daykin Family Law offers a reduced fixed fee initial consultation in person at our Brisbane office or by phone. Contact us today to discuss how we can help you.

How are pets divided in a separation?

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What about the fur babies?

Relationship breakdowns are one of the hardest things any person can go through.  We know that this can be even more challenging when there are children involved.  But little focus is often given to the family’s animals and where they fit in from the outset.  For many, “fur babies”/the family’s pets are like children.

The Family Court and Federal Circuit Court however does not see it this way. The Family Law Act (1975) Cth does not make specific reference to pets and they are essentially treated in family law as assets to be adjusted between the parties.  So, just like the car or the caravan, the pets are often allocated to one party or the other.

This also means that the Family Court and the Federal Circuit Court cannot determine the shared custody arrangements for your beloved furry friends.  While some fur parents are choosing to enter into agreements just like a parenting plan for children, or record an agreement by way of a Notation to proposed orders, the Court has no power to enforce these ongoing arrangements.

If a pet is an asset, what is the value?  For some, the answer is: priceless!  For the Court, this is not so clear.  The value of an animal is what the market dictates, so the market value.  Generally, a nominal value is attributed to pets unless they are show dogs or pedigree animals.

What if you can’t decide on who is to keep your pet?  It’s similar to how a determination is made by the Court about who keeps any other asset.  The Court will consider who the animal is registered to, who takes primary responsibility for the animal and where the pet can be appropriately housed.  Past case law tells us that any attachments by a child of the relationship to a pet may be a weighty factor.

Some overseas jurisdictions have moved towards shared care arrangements for pets but, as yet, the Australian Legal system is yet to catch up.

Contact Daykin Family Law today to talk about how we can help you separate amicably and reach an early agreement without running up unnecessary costs.

First published 17 November 2017

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What rights do Grandparents have?

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In modern society, families are increasingly reliant on the significant care and support that grandparents provide to their grandchildren to allow parents to work and provide for their own family.  While it’s hoped that a separation will not affect grandparent’s relationships with their grandchildren, this is quite often not the case.

Have you been stopped from or limited in the time you can spend with your grandchildren? Including after a separation or divorce?  As a grandparent, you have options to assist you to preserve your grandchildren’s relationship with you.

The Family Law Act (Cth) 1975 gives the Court power to make parenting orders for children that relate to other people, not just parents.  In fact, grandparents are specifically listed in the legislation along with parents as people who may apply to the Court for parenting orders.

As with all parenting matters before the Court, the Judge must regard the child’s best interests as the paramount consideration when making decisions.  This includes a number of factors, including but not limited to the following:

  • the nature of your relationship with the child/ren’s parents. Both with your own child and the other parent and the ongoing effect of such time on the relationship;
  • what time you have spent with the child/ren to date, and the nature of your relationship with them;
  • the child/ren’s wishes;
  • any other factor the court deems relevant.

In circumstances where neither parent may be suitable to care for the child, or where as a grandparent you have been the child’s primary carer, the Court enables you to make an application for them to live with you or to spend substantial and significant time with you.  It is important that if you feel these circumstances apply to you that you seek legal advice prior to making an application with the Court.

Of course, Court should be the last resort.  It is one of the many reasons that the law requires parties to attend mediation proper to commencing court proceedings, unless there is urgency or has been family violence.  While mediation does not guarantee that you will reach agreement as to what time you can spend with your grandchildren, it can be step in the right direction in a lot of cases.

For complex family relationships, there are also family counsellors and other services available that may be able to assist you to discuss with your family the time your grandchildren can spend with you without adding further conflict.

For advice tailored to your specific circumstances, contact us today to discuss your options.

First published 19 October 2017

Love & Assets: What is a Pre-Nup? Do I need to be engaged to protect myself?

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Whether it’s on an American TV sitcom, or in a Kanye West song, we’ve all heard the term “Pre-nup”.  But what does this mean?  And how do they work in Australia?  Can they be used outside of contemplating a walk down the aisle?

On this side of the globe, we have Financial Agreements.  This is a contract between two or more parties that can be entered into before, during or after a relationship.

We will focus on these “pre-nup” or “pre-nuptial” Financial Agreements.  These are highly technical agreements made by parties before marriage under Section 90B of the Family Law Act 1975.  The agreement can cover how any or all property and financial resources of the parties will be dealt with in the event of a separation.  It can also cover what spousal maintenance, if any, will be paid between the parties.  Other ancillary matters can also be included.

Importantly, Financial Agreements are being used more and more to protect assets that one person brings into a relationship, or the assets that one person will receive during their relationship at some point in time from family or some other source.  This allows assets to be preserved for children of a previous marriage, as an example, children that are yet to be born or even extended family members.

The possibilities are near endless.  There can be an entire quarantine of property or financial resources, or one party can acquire an incremental interest over time in the other person’s property, to adjust for the passage of time or even the pitter patter of tiny feet.  Financial Agreements can be reviewed at an agreed time in the future, and they can even have an end date if this is what the parties agree on and want.

These agreements are not just for people contemplating marriage.  There are different circumstances where couples can enter into this type of agreement, including:

  • The couple is going to live together but there is no plan to get married
  • The couple is going to live together and they do plan to marry, but have not decided when they will get married
  • The couple is already living together
  • The couple is already married

The Family Law Act 1975 outlines specific requirements that must be met to ensure that the agreement is binding and enforceable.

One of the requirements under the Act for a financial agreement to be binding is that both parties must be given independent legal advice before the agreement is signed.  This is about the effect of the agreement on the party’s rights, and the advantages and disadvantages to that party of making the agreement.  The lawyers need to sign certificates to this effect.

Both parties must engage their own lawyers.  A common lawyer cannot be engaged by both parties for the purposes of a Financial Agreement, even if both parties are completely in agreement about the terms and what is to happen.

The law surrounding Financial Agreements is in an almost constant state of change in Australia.  The legal fraternity is currently awaiting the outcome of a High Court case involving the issue of duress when parties sign these types of agreements.  It is vitally important to ensure that the lawyer you engage has a high level of knowledge around the technical and practical aspects of this area of family law. 

These are sensitive issues, with people’s relationships continuing to hopefully grow and flourish while we negotiate and draw these agreements up.  Often there are many people involved and invested in the process on the outer edges, such as business partners, adult children and extended family members.  As a result, these matters need to be handled with care by the lawyers concerned to promote harmony where possible, and avoid unnecessary conflict which could harm the relationship.

We work with a range of lawyers who we recommend to our clients’ partner or fiancés, who share our pragmatic approach and are highly competent in this area. 

Talk to us today if you are considering an agreement for your relationship,  no matter what stage it is at.  We can discuss with you the many varied options for how such an agreement can work for you and achieve the level of asset protection you desire.

First published 15 September 2017

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Clearing away the looming clouds of uncertainty: Finalising your past to secure your future

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When a couple separates, it can be all too tempting to just make a quick and informal agreement about property to move forward as early as possible, away from the anguish surrounding the relationship breakdown.

What many people don’t know is that informal agreements dividing assets are not necessarily enforceable.  When there is no enforceable agreement recording how property is to be dealt with at the end of a marriage or de facto relationship, the door remains wide open for the other person to have “another bite at the cherry”.  That means that either party to the broken-down marriage or de facto relationship can make an application to the Court for property orders in the absence of court orders or a binding financial agreement.

It can be particularly risky or complicated in circumstances where one person moves onwards and upwards, continues to accrue assets or grow their own property after separation, or even mixes their finances with a new partner.  This is because all property is included in the “pool” available for adjustment as at the time of trial or agreement.  Whilst you may be able to argue you should keep all or the lion’s share of a particular asset due to your contributions to it after separation, there is no hard and fast rule and your assets may well be vulnerable.  Many factors will be taken into account by the Court, however post-separation earnings and accrued assets are not necessarily safe from the reach of the other person.

Married people have up until 12 months after a divorce order takes effect to make an application to the Court for property settlement and/or spousal maintenance.  The time limit for people to file an application for property settlement or maintenance after a de facto relationship ends is 2 years after the date of separation.  Even after these time limits, an application can be made to Court on certain grounds to proceed with an application even when it is out of time.

Finality with financial affairs after separation is important to allow you to make decisions with certainty that will benefit you and those you care about moving forward.  Recording a binding and enforceable property settlement can assist with this finality, to ensure that what you keep remains yours and you are free from any claim for property in the future.  There are a couple of ways to record an agreement, with the most cost effective often being an application for consent orders through the Court.  Neither party will need to attend Court as the application is considered in-house, unless the Court considers the agreement reached is unjust or inequitable to one party.

There are also ways to limit your spouse from making an application against you in the future for spouse maintenance, with the same options applying to de facto couples after separation.

We have helped many clients record their property settlement agreements cost effectively and efficiently.  Usually, we can draft all of the documents you need within a matter of days if we have all of the relevant information and an agreement has been reached.  Contact us today to discuss how we can help you move forward with finality.

First published 24 August 2017

Mapping your path after separation

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Whether it has been your decision or the decision made by your partner, the road stretches out at the time of separation and forks off in several directions.

Emotions can run at an all-time high and this can sometimes cloud those first crucial decisions that are made.  In more severe cases, people make decisions which can have a long-term impact on their children, their ex, their broader family and how their lives will unfold from there.  Decisions where there were better alternatives, and negative outcomes that could have been avoided.  That’s where family lawyers can do their best work, preventing potential disasters.

Engaging a good family lawyer at the time of separation can save you a lot of time, expense and pain later by accessing advice you can rely on from day one that sets you up for success.  A person’s separation can involve many elements, such as parenting, child support, spousal maintenance, property settlement and domestic violence.  There might be more urgent issues that need to be dealt with right away, with others that can be left to a later time once some of the dust has settled.  Us family lawyers give advice based not only on legislation and rules, but our experience in the courts knowing how Judges and Magistrates are likely to view the things that people do and do not do when they separate, and how a particular issue might be dealt with.

With this knowledge and experience, the first meeting with your family lawyer should cover how to:

·         minimise conflict

·         promote your children’s best interests

·         protect your assets

·         preserve your rights

·         ensure that you can provide for yourself and/or your children

·         avoid joining the many, many people queued in the court system waiting for decisions to be made about their property and family

·         save costs

Armed with this advice and information, you can make solid decisions on which path to take.  Straight after separation, many people do not need anything drastic to change.  There are certain steps to follow to work through a property settlement and/or an agreed parenting arrangement.  While those occur, agreements can be reached along the way to keep joint expenses paid such as the mortgage, utilities, school fees and those related to the running of the home.  Ideally, the exchange of documents can take place relatively early so that offers can be made and a binding agreement drawn up once consent is reached.

Some matters though can escalate quickly, landing people in court with legal costs increasing sharply.  In many cases, there are alternatives to instituting court proceedings.  This can involve raising any urgent or concerning issues as they arise, setting out a pathway to resolve those issues and following through to ensure those issues do not arise again.  This is where pragmatic advice is particularly useful.  Talking through the issues with you, how things might play out and how this might impact on you is an important part of what we do.  We call it reality testing and it is vital.

The involvement of a family lawyer is ideally only a brief part of your story.  We should not be the stars of your show.  You should be front and centre, making your own decisions and forging your new path.  Talk to us today about how we can help you find the right path to suit your circumstances and your family after separation.

First published 9 July 2017

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The other parent is breaching parenting orders, what are my options?

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Obtaining final parenting Orders is often at the end of a long process for many people which can be emotionally and financially draining.  When the other parent starts breaching those Orders, it can be a huge source of further frustration, worry and headache.

When parenting orders are made by the Court, whether by consent or as a result of a trial, it is important that all people involved comply with the orders.

A person is considered to have contravened a parenting order if they have:

  • intentionally failed to comply with the orders;
  • made no reasonable attempt to comply with the orders; or
  • intentionally prevented compliance or aided contravention of orders by a person who is bound by the orders.

Examples of contraventions of parenting orders include circumstances where a parent fails to return the child or children to the other parent at the time or date specified, where a parent uses corporeal punishment methods (such as smacking) when such acts are expressly prohibited, or where a parent discusses adult issues with the children when they are specifically prohibited from doing do.

Having a reasonable excuse for contravening parenting orders can be a defence in contravention proceedings.   Reasonable excuses can include:

  • circumstances where the person in contravention of the orders did not understand the obligations imposed on them by the orders;
  • the person in contravention believes on reasonable grounds that the contravention was necessary in the interests of their own health and safety or that of the children; and
  • where the Court is satisfied that the person in breach ought to be excused in relation to the contravention.

If someone contravenes a parenting order without reasonable excuse, the other party may wish for the contravening party to be punished by the Court for non-compliance or, alternatively, may simply wish for the contravening party to comply with the Orders.

When seeking a party to be punished by the Court, filing an Application for Contravention of Child Order is an option.  The remedies available from this course of action range from compensating a person for lost time with the children, varying existing orders, imposing fines and, in some cases, imprisonment of the party in breach of the orders.  Care should be taken with this approach, given the Court’s ability to vary parenting orders in contravention proceedings, and we recommend that you seek legal advice before you initiate this process.

If the other party does not want the contravening parent to be punished, however would prefer a remedy to ensure resumption of the arrangements specified in the Orders or other orders to deal with compliance issues, that party may be able to file an Initiating Application seeking certain orders.  Again, you should seek advice before taking this step as costs consequences could flow if such an application was unsuccessful.  We regularly advise clients on these issues, including whether the Court is likely to vary certain parenting orders, or not.

It is also important to remember that parents may be able to resolve matters involving the contravention of parenting orders privately, without resort to litigation in the Court.  There are a range of options available to deal with contraventions and aid compliance outside of the Courtroom.

If you believe that another party to parenting orders is in contravention, contact us today for a reduced fixed fee initial consultation to discuss your options.  Our focus is to resolve your issues, if possible, out of Court.  If Court is the only option, we can discuss with you ways to keep your legal costs down and work with you to achieve the result you desire.

First published 23 February 2017

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How to stay above water with family law costs

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There are far better things in life to put your hard earned money towards than unnecessarily high legal costs.  We have had too many clients who have been up the river and back with high legal fees that have gotten them virtually nowhere but disenchanted with the legal process and family law in general.

We pride ourselves on being the problem solvers.  We want to get you from A to B, with your dignity and finances in tact wherever possible.  At the very first meeting with your lawyer, you can and should discuss with them how you can keep your legal costs down.  With our clients, we talk about the end game at the start and the different options to get there to suit their budget and their needs.

Here are 5 top tips on how to keep your legal costs down:

1.       Reach agreement.. and do it early!

It’s no secret.  Protracted negotiations can be extremely costly, lead to entrenched positions and spin the parties into the already congested court system.

We will always explore with our clients avenues to reach an early settlement wherever possible and save costs.  This can take many forms, such as supporting you to negotiate yourself and make informed decisions negotiating around the kitchen table with your ex or at a mediation.  Another way is to fast track the exchange of necessary financial documents and make an early offer to settle.

You may be able to get more if you went to Court, but we encourage clients to think about the financial and emotional cost of not settling early.  Not just on you but your family as well.  It can be too easy sometimes to get stuck in old conflict patterns and dig your heels in. Our job is to give you independent advice, a trusted advisor who can step back, assess the situation frankly and guide you.

We encourage our clients to explore the benefits of an early, clean break.  If you can, get to a settlement fast. It will free you up to focus on your bright, new future.

2.       Be up front with your lawyer about what you want out of the process, what’s important to you

This one is best explained with an example. Let’s say you tell your lawyer from the outset you are happy to move to a shared care arrangement for the kids with the other parent. Negotiations ensue, legal costs are expended. Then, the client starts putting up road blocks all over the place. Wanting to take issue with the ex’s care of the kids, the new partner’s involvement, what the other parent puts in the kids’ lunchbox.. all things that are not new and have long been an issue.  After  lot more legal costs and a strained co-parenting relationship with lawyers lobbing letters back and forth, the conflict is increased further with only the lawyers benefitting.  No settlement is in sight.  Court looks like the only option.

A way to avoid this increase in legal costs and tensions is to tell your lawyer up front about your concerns, your fears and what the roadblocks might be to you signing off on an early agreement and making lawyer’s fees a thing of the past.  A big part of our job as lawyers is reality testing. Stepping through with you how certain issues, if handled certain ways, can play out and how they might increase tensions unnecessarily and put you further away from your goals.

This reality testing early on allows you to choose the path that best suits your purpose.  If your lawyer isn’t signposting your matter, letting you know how you can quickly move past issues to save costs and headaches, something may be wrong.  Be upfront with your lawyer at every step.  It will save you time and money.

3.       Assess your own skillset.  What stages of your matter can you do yourself, and what do you need assistance with?

Some people are comfortable in negotiating themselves.  If this is the case, we can tell you what documents to ask for, what documents to hand over.  Then we can help you formulate a strong offer and draw up the agreement.  This is the best way to keep costs down and we’ve had many happy clients tell us they have been pleased with how little the whole process has cost them.

When Court is inevitable, there are still options to keep costs down.  Not everyone is comfortable addressing a Judge in Court as a self-represented litigant.  Some people are, with a little help from their lawyer.  If Court is the only way to move your matter forward, you can save legal costs by getting your lawyer to assist you in drafting some succinct court documents that address all of the necessary legislative factors.  This will place you in better stead to run some steps of the matter yourself if you choose.

Many matters do not end in a trial. Litigants can be assisted by the preparation of expert reports in property and parenting matters, mediation and the exchange of disclosure.  Offers can be put forward at almost any time in the court process before the end of trial.  Your lawyer can help you craft a solid offer to end litigation and draft the consent orders.

4.       Give timely, considered instructions

When lawyers need instructions from clients, it should be for a purpose.  To get you closer to what you want.  Sitting on giving those instructions can increase costs unnecessarily, as issues can snowball which leads to even higher fees.

A lot of issues, which would have otherwise lead to a flaring up of the matter (and costs), can be nipped in the bud with timely instructions and a well crafted response to take the heat out of the situation.  If the lawyer on the other side is litigious, the other party might be getting advice that your lack of response and action can be construed as a disengagement from the process, leaving Court the only option.  This path will likely end up costing you much more, financially and emotionally.

If you are going to be away or hitting a busy time at work, tell your lawyer so they can get on the front foot so any lack of response cannot be unreasonably misconstrued.

Think through your instructions before you give them to your lawyer, and ask whatever you need to so you can make informed decisions.  Changing your mind later can increase costs and build conflict.

5.       Choose the right lawyer

It’s important that you trust your family lawyer and the advice they are giving.  If your lawyer is not giving you pragmatic advice and talking with you about how to navigate your matter with the least fees, you may want to reconsider your choice.  We often meet with people to discuss a change of strategy to finalise a matter quicker, or give a fresh perspective.

Our business is built on our reputation.  There is no greater compliment to us than our clients and former clients referring us their family members, friends, work colleagues, knowing they will be well looked after.  The family law community is relatively small.  We are not known for increasing our client’s legal spend unnecessarily or building conflict to generate fees.  Quite the opposite. Daykin Family Law has built its practice on giving pragmatic advice at every step with the client’s interest at the forefront, with options to keep costs down where possible and move to the end of the process efficiently.

Book an appointment with us today to start the conversation on how you can resolve your family law issues efficiently and cost effectively.

First published on 19 January 2017

Understanding parental responsibility: not just for parents

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The phrase ‘equal shared parental responsibility’ is one that can be easily misunderstood to have the same meaning as ‘equal time with the children’. It is not unusual for parents or individuals with children that are subject to parenting matters before the Court to hear this phrase and sometimes be confused. As such, it is important for parties separating, and non-parent applicants before the Court, to understand the meaning of equal shared parental responsibility.

When making a parenting order, the Court applies a rebuttable presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Parental responsibility refers to all duties, powers, responsibilities and authority which parents have in relation to their children. These responsibilities and duties that parents have for their children include long term decisions such as determining the children’s religion and making decisions about the child’s health and education.

This then means, unless the Court orders otherwise, it is presumed every parent has this parental responsibility and, as such, parents that have separated or divorced ought to share major decision-making regarding the children. It should be understood that although parental responsibility places an obligation of responsibility on the parent, it does not confer an automatic and absolute right of a parent towards the child. Under Australian legislation, the best interests of the child are paramount to the Court’s decision-making.  It must be in the child’s best interests for an order to be made that both parents have equal shared parental responsibility.  If such an order is made, the Court must then determine whether an order that the child spend equal time with both parents is in the child’s best interests and should be made.  In a lot of cases, for a lot of reasons, this is not reasonably practicable and other time arrangements must be considered.

Orders for parental responsibility in relation to a child are not just for parents.  Such orders can be made in favour of a child’s grandparent(s) or any other person concerned with the child’s care, welfare and development.

If you have recently separated from your spouse or de facto partner, or have a child in your life whose long term care you are concerned about, contact us today for a reduced fixed fee initial consultation to discuss your options.  We have a great depth of experience in children’s matters, including acting for grandparents and non-parent applicants before the Court, and will provide you with no-nonsense, pragmatic advice.   Visit our website for information on our services and contact details.

First published 11 October 2016