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Duty of disclosure in property law proceedings

Under Rule 6.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, in all property settlement matters, both parties have a duty to provide full and frank disclosure.  However, what does the term “disclosure” really mean?  And what are your obligations to provide full and frank disclosure in your financial matter?

What is full and frank disclosure in financial cases?

Disclosure is a process of exchanging financial documents with the other party that are relevant to your financial circumstances.  The type of documents that are required to be disclosed are broad and are set out in the Rules.  The documents to disclose will vary depending on the circumstances of each case and the assets and liabilities etc at play.  However, each party is generally required to exchange documents evidencing all sources of income, superannuation entitlements, liabilities and any property or financial interests, including property and financial resources which are held in corporations, trusts or other similar structures.  This is just some examples.

When is disclosure exchanged?

Disclosure is generally exchanged at the commencement of the property matter.  However, it is important to remember that your duty of disclosure is ongoing. Therefore, you are required to continually provide disclosure documents that are in your possession, power or control throughout the duration of your matter.  This is particularly important in circumstances where your financial circumstances have changed or as more information becomes available.  In essence, your obligation to exchange disclosure does not cease until your matter has finished (either final agreement is reached and recorded, or final Orders are made by the Court).

What is the purpose of full and frank disclosure in financial cases?

When negotiating a property settlement matter, one of the first steps is to identify the property of each party and what assets are available for distribution.  Disclosure and the provision of such documents assists each party with this step.  In our experience, the resolution of property matters is often expedited in circumstances where both parties adhere to their duty of disclosure in the initial stages of the matter.  This is because the process of disclosure allows the parties to narrow the issues that are in dispute, particularly with respect to the value of the property pool.

In the event that full and frank disclosure is not exchanged, then each party cannot be sure of the existence or value of the assets and liabilities between the parties.  Ultimately, this can affect the understanding of the property pool and may result in a division of assets which is unfavourable to one party, or negotiations becoming protracted and costs increasing.

In some circumstances, a lack of disclosure can cause a matter to proceed to Court.  In worst cases, a lack of disclosure can lead to an application to set aside Orders or a Binding Financial Agreement.  Therefore, it is important that you comply with your duty of disclosure, so that meaningful negotiations can take place in a timely and cost-effective manner without resort to costly litigation.

Consequences of non-disclosure

It is important that each party takes their responsibility to provide full and frank disclosure seriously, as failure to comply with this duty can result in serious consequences.  As mentioned above, in instances where one party refuses to provide full and frank disclosure, then the matter may proceed to Court.  In the event that the matter proceeds to Court, it is most likely that the Court will make Orders for the non-complying party to produce their disclosure documents within a certain time frame.  In some circumstances, the Court can also order the non-complying party to pay costs to the other party for causing undue delay to the proceedings.

If it is discovered that a party to the proceedings has failed to disclose their true financial position after final Orders have been made or a financial agreement has been entered into, then as we mention above, the other party can make an application to the Court to set aside the Orders and for new Orders to be made based on the true financial position of each party.   The same can apply to a Binding Financial Agreement.

Seek legal advice

If you have recently separated from your partner or if you are experiencing a dispute in relation to property settlement, contact us today to make an appointment with Shannon Daykin, an Accredited Family Law Specialist, so that you can get advice about your situation, your options and your obligations.

Shannon was named as one of Brisbane’s Leading Family & Divorce Lawyers (Recommended) and Leading Parenting & Children’s Matters Lawyers (Leading) 2022, Brisbane, in the prestigious Doyle’s Family Law Guide, and listed in previous Guides.  We offer a reduced fixed fee initial consultation, which can be conducted in person, by phone or by video conference.

We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family.  Contact us on (07) 3852 5490 to make an appointment for an initial consultation.

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To Vax or Not to Vax

Navigating your parental obligations in relation to vaccinating your children against COVID-19

The onset of the COVID19 pandemic has presented an unparalleled global challenge to society, the economy and the public health sector.  The pandemic has also created a range of new challenges for separated families, causing an array of family law disputes to surface. The tremendous impact of the Covid-19 pandemic to Australia’s family law system has led the Federal Circuit and Family Court of Australia to establish a special court list for dealing exclusively with COVID19 related family law disputes.

As the COVID19 vaccine becomes available to children, disagreements regarding whether parents should or should not immunise their children against COVID19 are beginning to emerge. Undoubtedly, a parent’s decision to vaccinate their child is complex in circumstances where one parent is wanting to vaccinate but the other parent is opposed. These disagreements often leave parents questioning whether they need the consent of the other party to vaccinate their child, and what they can do in instances where both parents are unable to reach an agreement.

What does the law say?

Whilst the Family Law Act 1975 (Cth) (the Act) does not exactly provide a roadmap setting out what families can and cannot do if they find themselves in this situation, the Act does provide a starting point in respect to parents’ obligations.

Under the Act, there is a presumption that parents have equal shared parental responsibility. This presumption will apply regardless of any changes to the parents’ relationship and until a court Order is made varying this presumption.

Parental responsibility is defined in the Act as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” Equal shared parental responsibly is a term that relates to major long-term decisions concerning children, including but not limited to medical, education and religion related decisions.  If the presumption of equal shared parental responsibility applies, then parents are required to consult each other about all major long-term decisions regarding the children and they are to make a genuine effort to reach an agreement.

In terms of the relevance of equal shared parental responsibly and vaccinating children against COVID19, decisions regarding immunisations are captured under parental responsibility as these are considered major long-term decisions relevant to the child’s health.  As such, a parent’s decision to vaccinate their children is one which both parents have an obligation to consult one another about.  Therefore, if the presumption of equal shared parental responsibility applies, one parent should not unilaterally decide to vaccinate their child without the consent of the other parent.

If a Court order for equal shared parental responsibility is in place, then a parent who unilaterally vaccinates their child without the other parent’s consent may well find themselves in breach of a Court Order and open themselves up to the risk of a contravention application being made against them in the Court.

Failure to reach an agreement

If parents are unable to reach an agreement, they can attend mediation in a genuine attempt to negotiate a potential outcome that both parents agree to.  Mediation is a form of alternative dispute resolution and can be an effective way to resolve outstanding parenting issues with the assistance of a trained and experienced mediator.

Going to Court

If parents are unable to reach an agreement through alternative dispute resolution, then a parent can file an Application to the Federal Circuit and Family Court of Australia (Division 2).  There is also a National COVID-19 List which applies to urgent or priority family law applications filed in the Federal Circuit and Family Court of Australia which are filed as a direct result of, or in significant connection to, COVID-19.  This may be relevant for a person who is in a parenting dispute relating to COVID-19 vaccinations in certain circumstances.

If a person files an Application in the COVID-19 list and the Application meets the COVID-19 criteria, then the matter will likely be given a first return date within three business days if the matter is assessed as urgent, or otherwise within seven business days if the matter is a priority, but, not urgent.

The Federal Circuit and Family Court of Australia (Division 1) and Federal Circuit and Family Court of Australia (Division 2) has the power to make orders in relation to vaccinating children (both in the usual Court system applied for parenting matters and part of the COVID-19 List).  In making such determination, the Court will consider what is in the best interests of the child and relevant factors under the Act.

Seek legal advice

If you and your family are experiencing a dispute in relation to vaccinating your children, or arrangements for your children generally, contact us today to make an appointment with Shannon Daykin, Legal Practitioner Director and Accredited Family Law Specialist, to obtain advice about your situation, your obligations and the options available to you.  We can assist you to navigate a road map on the best options to suit your needs and the needs of your family.

Shannon was named as one of Brisbane’s Leading Family & Divorce Lawyers (Recommended) and Leading Parenting & Children’s Matters Lawyers (Leading) 2021, Brisbane, in the prestigious Doyle’s Family Law Guide.  We offer a reduced fixed fee initial consultation, which can be conducted in person, by phone or by video conference.

We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family.  Contact us on (07) 3852 5490 to make an appointment for an initial consultation.

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Making Parenting Arrangements After Separation

There is a lot to consider when travelling down the separation path, with a number of moving pieces.  For many, the main focus is on what arrangements will be put in place for the children.   We address some of the things to consider when making parenting arrangements.

From the outset, we have regard to the Family Law Act 1975 (Cth) (the Act) and the legislative pathway that applies to parenting matters.  The paramount consideration for the Court when making any decision about a child is the child’s best interests.  We keep this at the forefront of the advice we give, and encourage you to keep it as your primary focus as you navigate making parenting arrangements.

We explain below some terms and concepts you may come across, or might like to consider.

Parental Responsibility

Under the Act, there is a presumption that parents have equal shared parental responsibility.  This is essentially the default position, unless an order to the contrary is made, and is defined in the Act as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”

This does not relate to the amount of time that a child spends with each parent.  It only relates to major long-term decisions, such as medical, education, religion as some examples.  Parents do not need to consult with one another about any non-major long-term issues, such as what the child will eat or wear.

The presumption that a child’s parents have equal shared parental responsibility will apply unless the child has been subjected to family violence, abuse, or if the Court considers that it is not appropriate based on the relevant circumstances.

Care Arrangements

Care arrangements of the child will often be discussed as one of two arrangements, the “live with” and the “spends time with” arrangements.  The Court must consider equal time if it is reasonably practicable.  If not, then consideration will need to be made as to who the child “lives with” and who the child spends “substantial and significant time with”.

The “live with” arrangement refers to the parent who the child lives with on a regular basis.  Whilst the “substantial and significant time with” arrangement refers to the parent who the child spends certain time with.

The Act refers to “substantial and significant time” can encompass a mixture of days during the week, weekends, holidays and being involved in the child’s daily routine and events that are of particular significance to the child and to the parent.

Examples of care arrangements could include:

  1. Either parent having a week about care arrangement, where the child will stay with one parent for a week and alternate the next week with the other parent; or
  2. The child living primarily with one parent and spending time with the other parent on specified times, such as Wednesday nights in week 1 and from Friday to Sunday in week 1 as an example.

If substantial and significant time is not in a children’s best interests, then regard should be had as to what arrangements will best meet the child’s needs.

Communication

A parenting arrangement may incorporate communications that a child is to have with the parents, especially when the child may not have the opportunity to live with the parent or to spend an immense amount of time with them.

Such communications can encompass telephone, email, video calls, text messages or any other means of communication.  It can be an effective way to maintain the child’s relationship with their parents when they are not spending time with them.

Regard may need to be had to a child’s routines and extra-curricular activities to ensure that communications are positive.  Every family is different as to what suits them so devising a proposal based on what is best for the child when they live or spend time with you can be the best way to start discussions.

Changeover

When arranging a time for the child to spend time with a parent, there is always an option to have a changeover location that is neutral to both parents and the child or the parents’ homes if it is safe.  When there is tension between the parents, parents may wish to have school or day care as the changeover location to limit interactions.  This can minimise potential conflict arising.

Often the elected changeover venue is a public place.  It could be a local park, café or landmark.

Thought may also need to be put into appropriate changeover arrangements if children travel between homes with bulky bags or school items.  A storage place may be needed for example if changeover occurs at school, to ensure that the child’s possessions are kept safe.

Supervised Time

If a child’s physical or psychological safety is at risk, consideration may need to be given to taking steps to protect the child from this risk.  This could involved supervised time, where the child’s time with their parent takes place in the presence of a trusted and appropriate adult who remains close enough to supervise interactions and act if needed.   This can assist in keeping the child safe, whilst developing and maintaining a meaningful relationship with their parent.

Supervisors can be someone agreed between the parents, such as a grandparent or mutual friend.  Or, parents can opt for a contact centre to provide supervised time at a cost.  The length of time and frequency of supervision can vary, but is often impacted by the availability of the chosen supervisor or contact centre.  Both private and public organisations offer supervised time at what is known as a children’s contact centre.

Child Support

You may wish to reach agreement with the other parent on how expenses will be paid for the child.  Some options to consider are an informal agreement, a child support assessment, a Limited Child Support Agreement or a Binding Child Support Agreement.  Legal advice will be helpful to ascertain which option is right for your circumstances.

As a common tool, the Department of Human Services (Child Support Agency) has an online estimator calculator on their website that can provide an estimate as to how much a parent may need to pay in periodic child support (for children under 18 years).  The estimator gathers information like the annual taxable gross income that you and your ex-partner receives, the details of your child, and the frequency of the care arrangement that a parent may have.  The estimator will provide an estimated minimum amount that a parent is to pay the other, as an annually, monthly, fortnightly, and weekly amount.

There may be other costs that you need to consider, such as private health insurance, medical costs, orthodontic costs, extra-curricular fees and expenses, school fees for example.  We have extensive experience in negotiating child support arrangements for our client, and assisting in making them legally binding and enforceable.  This can be done separately, or as part of negotiating property settlement.

Special Occasions & Holidays

Special occasions and holidays are a favourite time of the year for many and some thought often needs to go into how these days will be shared between the parents.  Some leniency towards making certain exceptions to special occasions and holidays are often necessary.  An example of this is if a child was living with the mother on the day that Father’s Day falls on, then such arrangements could be made to allow for the child to spend time with the father on Father’s Day from 9am until 5pm, or such time as agreed between the parents that is in the best interest of the child and that is reasonably practicable.

Such other special occasions encompass the child’s birthday, parent’s birthdays, other holiday days such as Easter, Christmas, New Years, and religious days.  Holiday time can be split a range of ways, such as specific days, parts of weeks, week-about, half and half as some examples.

Review and Dispute Resolution

Whether you are entering into a parenting plan or consent orders for a parenting arrangement, it is useful to consider how issues that remain in dispute are to be resolved and if any reviews may need to be done (such as when young children grow older).  You can make provision for certain processes, such as attending mediation or family dispute resolution.

Mediation or family dispute resolution can be an effective way to resolve outstanding parenting issues with the assistance of a trained and experienced mediator with family dispute resolution qualifications.  These practitioners can be lawyers, psychologists, social workers or have some other background in addition to their mediation qualifications.

Recording Your Agreement

You can keep your agreed parenting arrangement informal, such as by verbal agreement or an exchange of emails.  It may become difficult to keep track of those agreements though, so many parents record arrangements in a Parenting Pan.  There are a range of resources on the internet regarding Parenting Plans.  Whilst Parenting Plans are not binding or enforceable, they are a piece of evidence for the Court in any future proceedings.  Care should always be taken when drafting these documents, and legal advice may be necessary.

For some parents, a binding and enforceable parenting arrangement is preferable.  When there is agreement, parents can enter into a joint application for Consent Orders in the Court.  The Judicial Registrar will consider the application and make the orders sought by the parents if the Court considers the orders are in the child’s best interests.

What Now?

Reaching out to a family lawyer does not have to signal a battle is starting.  Quite the contrary.  We help many, many clients as they begin their separation journey so we can help guide them towards an agreement and away from the Courts.  We can assist you up front in negotiations, or support you behind the scenes so you can advocate for yourself.  Court should always be a last resort as it can be expensive, time consuming and emotionally draining.

We offer a reduced fixed fee initial consultation when advising clients for the first time.  We can discuss what arrangements might be best for your family, and address any other matters that you may need assistance with as well, such as spousal maintenance or property settlement.

Shannon Daykin is a Queensland Law Society Accredited Family Law Specialist, a Nationally Accredited Mediator and Accredited Family Dispute Resolution Practitioner.  She has a wealth of knowledge and experience in parenting law, and is named as one of the Leading Parenting & Children’s Matters Lawyers in Brisbane in the prestigious Doyle’s Guide 2022, as well as other Doyle’s Guides Lists in 2022 and for a number of years.  Contact us today to book your consultation in person, by phone or video call.