If you have just separated or are likely to, it is important you get advice about what will happen with custody of the children. In the world of family law in Australia, we refer to this as parenting arrangements – who a child will live, spend time and communicate with, among other things.
Most of the time, parents who have separated can agree on a parenting plan for their children. For some, the children might live with one parent, and see the other at weekends, holidays and special days. For others, the children may effectively have two homes and spend an equal amount of time with each parent. For many, the arrangements are somewhere between.
Sadly, not all agreements can be made amicably, or there may be extenuating circumstances for which parents choose to litigate in the family court system. Litigating child matters in the courts can be particularly emotionally straining for all parties involved and it should be considered to be a last resort. That being said, it is important to understand the process and implications if you’re considering seeking custody as part of a separation.
What is child custody?
The term ‘custody’ is no longer used by the family law courts, but still used regularly by others and in the media. In Australia, parenting arrangements fall under the Family Law Act 1975, which covers divorce and separation, property separation, parenting arrangements and maintenance. The terms ‘custody’ and ‘access’ are no longer used and have been replaced with ‘live with’ arrangements and ‘spend time with’ arrangements as preferred terms.
There is no standard care arrangement for a child following separation or divorce, but the starting point is Section 65E of the Family Law Act. This details the basis of who a child will ‘spend time with’ and who a child will ‘live with’.
The law assumes that decision making is shared amongst parents (for example decisions around religion, medical treatments, changes to where a child lives or to their name or decisions around their education), unless in circumstances of a risk of family violence or abuse. However, equal shared parental responsibility does not always mean that there is an automatic right to spend an equal amount of time with the child. This decision can be made by the Courts in the best interests of the child.
Should I go to court for child custody?
In most child custody cases, parenting arrangements can be made without the intervention from the Courts. Most family law experts recommend finding alternative ways to finding a resolution, for example mediation. By appointing an experienced family lawyer and taking a proactive approach to litigation, it is very possible to avoid the Court or leave the court system sooner, allowing you to move on and focus on raising your children.
If you and your ex-partner cannot come to an agreed parenting arrangement and are seeking court intervention, ask yourself the following:
- Do I want sole parental responsibility?
- Why do I want sole parental responsibility? Do I have a genuine concern about the other party’s ability to care for the children and/or capacity to co-parent effectively?
- Why do I want the children to live with me? Do I have a genuine concern about the children’s ability to adjust or the new lifestyle of my ex-partner?
- Are my children at risk of violence, abuse or neglect? Do I have any evidence of this?
If your concerns are genuine and you cannot come to a resolution outside of the Court, you can file an application in the Family Law Courts for Parenting Orders. You should seek advice about whether any exemptions to attending family dispute resolution first apply to your circumstances. Found out more about how to calculate child support in Australia.
What is the legal process for getting child custody (parenting order)?
Before starting the process to get a parenting order, commonly referred to in the media and community at large as child custody, you should first consult with your solicitor before taking any action. You generally must be able to demonstrate that you have tried alternative methods of dispute resolution prior to filing an application, unless your situation is urgent or another exemption applies (for example it involves family violence or child abuse).
If you were unable to reach an agreement through dispute resolution methods, then you will need to file documents with the Federal Circuit and Family Court of Australia. This includes the initiating application, affidavit(s), mediation certificate, notice of risk, and the court filing fee.
What the court takes into consideration
The Courts’ primary focus in deciding on custody (parenting order) is what is in the child’s best interests. The primary considerations are;
- The benefit to the child of having a meaningful relationship with both parents
- The need to protect children from any harm, such as family violence, neglect or physical and psychological harm
The latter is always deemed the priority of the two primary considerations.
Other additional considerations may include;
- The views or wishes of the child – if these are expressed
- The relationship of child with their parents and significant others, for example grandparents and siblings
- Parental involvement – how much time each parent has spent with the child, whether they have fulfilled their parental obligations, opportunities taken up to spend time or communicate with a child
- The effect of any changes – such as where the child has been living or staying, practical difficulties of spending time with each parent or significant others
- Cultural issues – for example religion
- Any family violence issues
- Any other issues the court deems are important to the case
Breaching a parenting order
As parenting orders are court ordered, all involved must comply with it. If a person breaches a parenting order, it is considered very serious and can result in:
- Court-ordered participation in a parenting program
- Changes to the existing parenting order
- Fines
- Court-ordered community work
- Jail time in extreme/serious cases
What if I already have a parenting order in place and circumstances change?
If you have an existing parenting order and want to make changes, then you will need to prove to the Court that there has been a significant change in circumstances.
If both parties agree that there is a need to change the existing order and agree on the proposed changes, then you can file a draft consent order together, which the Court can then formalise without your physical presence in court.
If there have been significant changes in circumstances but both parties cannot come to an agreement on the proposed changes to the parenting order, then you will have to essentially redo the initial process of applying for a parenting order as if it were the first time. This is an application to vary parenting orders and expert legal advice should be sought first.
Get help with your parenting plan today
If you are going through a separation and need help with your parenting plan, our family lawyers are here to help. At Daykin Family Law, we’ve worked with hundreds of parents to come to a resolution in the best interests of their children, in and out of court.
For expert legal advice on the most appropriate and cost effective course of action for you and your family, contact us on (07) 3338 5645 to make an appointment for a fixed fee initial consultation today.
Keep in mind that extensive changes to parenting laws under the Family Law Act 1975 (Cth) will take effect from May 2024. The information contained in this article is current as at the time of posting. We recommend that current legal advice is obtained.
With around 48% of divorces involving children under 18 years old in Australia, creating a co-parenting plan that minimises the negative effects of separation for children still living at home is crucial.
Parenting plans can be complex and require patience, understanding and often, a helping hand.
At Daykin Family Law, our expertise surrounding parenting plans and disputes has helped us get recognised as one of Brisbane’s leading lawyers in parenting and children matters in 2023 and prior years.
We’ve used our knowledge and expertise to create a guide that will help you create a parenting plan, tips for some of the best communication strategies, and to help prepare you to navigate any potential challenges.
What Is Co-Parenting? - Meaning And Benefits
Co-parenting can be understood as a shared parenting arrangement where separated or divorced parents work together to raise their children. It involves communication, collaboration, and mutual decision-making, focusing on your children’s well-being and best interests. There are a range of benefits when parents can successfully co-parent including:
- Provides children with stability and a sense of security.
- Reduces conflict exposure, benefiting children’s emotional health.
- Encourages both parents to remain actively involved in their children’s lives.
- Helps children maintain strong relationships with both parents.
When creating a co/parenting plan, it may be best to ensure compliance the Family Law Act (Cth) 1975, depending on your circumstances. Agreements can be recorded in a Parenting Plan under the Act or consent orders, as some examples.
The Legal Framework Of Co-Parenting In Australia
Australia’s approach to co-parenting after separation is governed by the Family Law Act (Cth) 1975, which prioritises the best interests of children in all parenting decisions.
Under this framework, co-parenting arrangements are encouraged as a means to ensure children have meaningful relationships with both parents post-separation when it is safe to do so.
This Act outlines the responsibilities and rights of parents, stressing the importance of children’s safety and emotional well-being.
It advocates for shared responsibilities and duties, focusing on the best interests of the child as the paramount consideration.
In Australia, the Family Law Act also supports flexible arrangements, catering to the diverse needs of different family structures.
With this in mind, you’re now ready to create your co-parenting plan.
Guide To Developing A Co-Parenting Plan
The most important step in creating a parenting plan or co-parenting plan is to prioritise the needs and well-being of your children above all else. Every decision and discussion should be centred on what is best for them. To ensure your parenting plan achieves this goal, it’s crucial to approach these conversations with openness and a willingness to understand each other’s perspectives if it is safe to do so. Here are some examples:
Co-Parenting Plan Element | Specifics to Include |
Living Arrangements |
|
Time Arrangements |
|
Education Plans |
|
Healthcare Arrangements |
|
Extra-curricular Activities |
|
Parenting Styles and Values |
|
Travel and Vacations |
|
Communication Guidelines |
|
Financial Responsibilities (see note at the end of this table) |
|
Dispute Resolution |
|
Process for Revising the Plan |
|
Special Considerations |
|
Transition Guidelines |
|
For certain financial responsibilities relating to child support to be binding and enforceable, these may need to be recorded in a Limited Child Support Agreement or Binding Child Support Agreement.
Communication Strategies For Successful Co-Parenting
Effective communication stands at the heart of successful co-parenting. It lays the foundation for mutual understanding, problem-solving, and decision-making, all crucial in maintaining a healthy environment for your children. Here are our key strategies to enhance communication in a co-parenting arrangement:
Establish Clear Communication Channels
Decide on the most effective and consistent ways to communicate, be it through emails, texts, or phone calls. Utilising co-parenting apps can also streamline communication, keeping it focused and organised. This is of course on the basis it is safe to do so.
Adopt A Business-Like Tone
Approach communication with a professional and respectful tone can assist. This helps in keeping discussions objective and focused on your children’s needs, rather than personal grievances.
Engage In Active Listening
Make a conscious effort to listen and understand the other parent’s perspective. Acknowledging their views does not always require agreement, but it fosters a collaborative environment.
Choose Your Battles Wisely
Not every disagreement needs to escalate. Determine which issues are worth discussing and which can be let go in the larger interest of your children.
Plan Regular Check-Ins
Schedule regular discussions to review how the co-parenting plan is working and address any emerging issues. This can prevent small problems from becoming larger conflicts.
Utilise Professional Support When Needed
In situations where communication becomes challenging, don’t hesitate to seek help from mediators or counsellors. They can offer guidance and strategies to improve dialogue.
Remember, effective co-parenting communication is not about winning arguments but about working together for the best outcomes for your children. By prioritising respectful and clear communication, you pave the way for a more harmonious and effective co-parenting journey.
Navigating Challenges And Conflicts In Co-Parenting
Handling challenges and conflicts is an inevitable part of co-parenting. If these obstacles are not managed effectively, they can impact not only the parents but also the children involved. Here are some strategies to navigate these difficulties:
- Acknowledge and respect differences in parenting styles and perspectives
- Focus on collaborative problem-solving over dwelling on the problem
- Keep children out of conflicts
- Seek professional guidance when conflicts become unmanageable or safety is an issue
- Develop a conflict resolution plan to handle disagreements
- Regularly review and adjust your co-parenting plan as your situations change
Remember, the goal in co-parenting isn’t to avoid conflicts altogether, but to handle them in a way that maintains respect, focuses on solutions, and prioritises your children’s best interests. By adopting these strategies, co-parents can create a stable and positive environment for their children.
Should I Involve A Lawyer During The Co-Parent Planning Process?
Deciding whether to involve a lawyer during the co-parenting planning process is a significant consideration for many parents. Some of the benefits a family lawyer can bring include:
Legal Expertise
Lawyers bring an understanding of family law that is crucial in drafting a parenting plan. They ensure that your agreement is not only fair but also complies with legal standards.
Objective Perspective
Emotions can run high during the planning of co-parenting arrangements. Lawyers provide an objective viewpoint, focusing on the best interests of the children and helping to navigate sensitive discussions.
Ability To Identify Potential Issues
Experienced lawyers can foresee potential problems and address them in the planning stage, which can prevent misunderstandings and conflicts in the future.
Ensuring Enforceability
For a co-parenting plan to be legally enforceable, it often needs to meet specific legal criteria. A lawyer can ensure that all necessary elements are included depending on how any agreement is to be recorded (such as a Parenting Plan or Consent Orders).
Assistance With Mediating Disputes
If disagreements arise during the planning process, lawyers can engage mediators or liaise with the other parent or lawyer, helping to find amicable solutions that serve all parties involved.
While involving a lawyer in the co-parenting planning process is not mandatory, their involvement can bring legal assurance, clarity, and peace of mind, making the process smoother and more effective for everyone involved.
Other Co-Parenting Resources And Support Systems
While there are numerous counselling services, support groups and educational materials you can use to help navigate co-parenting, below are some links that might help when you feel like you need 3rd party support:
- Relationships Australia provides relationship support services for individuals, families and communities contact
- Australian Psychological Society can provide listings of qualified therapists and psychologists specialising in family matters.
- Family Relationship Advice Line is a national telephone service that helps families affected by relationship or separation issues, including information on parenting arrangements after separation
A suitably qualified family lawyer can help advise on the next steps that need to be taken.
Looking For Help With Your Co-Parenting Plan?
In summary, effective co-parenting requires thoughtful planning, clear communication, and sometimes, the guidance of legal professionals.
By carefully considering each step and seeking the right support, you can lay a strong foundation for a positive co-parenting journey.
If you’re navigating the co-parenting process and need expert legal advice, Daykin Family Law is here to help.
Contact us on 07 3852 5490 or via our online contact form to ensure your co-parenting plan is comprehensive, appropriate, safe, and tailored to your family’s unique needs.
Questions about the process of child custody mediation are often asked by our clients. We all know that going through a divorce is tough – for you, your ex-partner, the children, and the wider family. When emotions are high and the future is uncertain, there can be a significant amount of conflict that arises in the decision-making process, leading one or both partners to find themselves unable to compromise or reach a decision in the best interests of the children.
In Australia, as discussed in our recent child custody blog, the Family Law Act 1975 (Cth) suggests first and foremost that couples do not use the Courts where possible and instead engage in child custody mediation before escalating to the Court. Even where a parenting order application is made through the Court, the applicant will most likely be obliged to demonstrate that they have attempted to resolve their differences before having the Court intervene.
Custody is no longer a term used by the Family Law Courts, opting instead for terms associated with what time a child spends with each parent and what communications they will have. If it is safe, both parents are encouraged to play an active role in their children’s lives for the benefit of their wellbeing. However, it can be difficult to come to an agreed decision on issues such as health, living arrangements, finances, and education.
When parents can’t agree during child custody mediation, that’s where a mediator comes in. Your family lawyer can organise for an experienced Family Dispute Resolution Practitioner to facilitate discussions between both parties in an impartial, calm manner. The goal of mediation in custody cases is to come to an agreement approved by both sides that can be turned into either a Parenting Plan or approved by the Courts in a formal Consent Order if required.
Mediators are not there to make judgments or take sides. They are engaged to essentially chair a meeting between both parties, to facilitate proactive discussion in a safe, controlled environment that allows a resolution to be reached which is in their children’s best interests.
How do I go about getting a mediator?
There are several options for child custody mediation. The most cost-effective is the use of the Family Relationship Centres, Family Relationships Australia, or other public and community-based services. These services can assist parents to discuss the issues and potentially write up a new Parenting Plan. Legal representatives are not permitted in that process, however.
Private child mediation services also exist, usually at a higher cost. Your family lawyer can attend and represent you throughout the mediation. This can be helpful to receive advice on the spot regarding the law relating to your particular matter, your rights, and the impact of any proposals. A solicitor can then draft the agreement terms on the day if it is appropriate, usually to be formalised soon after.
Going to Court is not usually a preferable course of action and is usually an expensive one. Mediation allows you to come to an acceptable resolution swiftly and cost-effectively.
When isn’t mediation appropriate?
Sometimes, mediation in custody cases isn’t an appropriate course of action, particularly in circumstances involving family violence. In such cases, the support of a lawyer can assist in effectively dealing with challenging cases to ensure your interests are protected. If there are allegations of abuse, your lawyer can advise whether the case should proceed in Court instead of with a mediator.
Should I seek legal advice before going into child custody mediation?
The most effective mediation happens when both parties have sought legal advice about their circumstance beforehand. You are much more likely to be prepared, to understand the probable outcomes, your options, and how a Court might deal with your matter. By figuring this out in advance, and understanding your legal position, both parties are more likely to be more informed and will have considered in advance of negotiations what they are or aren’t willing to compromise on.
Your lawyer can come to mediation sessions and advise you as the session progresses. Sometimes mediation can become heated or tense when sensitive and important issues are addressed and having your lawyer with you ensures you have your say and your interests and those of your children are prioritised throughout.
How to approach mediation
Preparation is key to effective mediation. With the support of your lawyer, you can approach mediation with more of an open mind, ready to listen and to develop a mutually satisfactory agreement. Remember to keep your children and their best interests in mind and be aware of the impact of conflict on them. Importantly, it’s best to approach mediation as a place to solve parenting problems rather than bring up any other marital issues.
Mediation in custody cases isn’t always smooth sailing, but by remembering that you are there to find a solution for your children and listening to the advice of your lawyer and the guidance of the mediator, you are much more likely to reach a settlement that works for both of you.
What can be resolved in mediation?
The most common topics that are discussed and resolved in child custody mediation are things like living arrangements or relocation, child support, health issues, education, religion, how time will be split between parents and how school holidays will be spent, overseas travel, and the division of payments for things like after-school activities.
What is the process of mediation?
When a mediator is appointed, each parent is normally invited to a pre-mediation meeting separately to establish whether the case is suitable for child custody mediation. If you have appointed a lawyer, they will advise you whether this is the case and what available options there are.
Both parties can then be asked to prepare a short statement to bring to the initial session, outlining what they hope to achieve from mediation.
Each mediation session can run for a shorter period, such as around three hours, or even a full day. In some cases, it can take several sessions to resolve some of the more significant issues. This is expedited if both parties come prepared and willing to compromise.
If no agreement can be reached in mediation, then a certificate will be issued by the mediator. Either parent can then file for parenting proceedings in the Court. Such a certificate will also be issued if a genuine effort isn’t made by one parent to resolve the dispute, if a parent fails to attend, or for another relevant reason.
I am considering child custody mediation, what should my next steps be?
Where possible, it would be prudent to speak to a family lawyer who can help you understand your options before appointing a mediator. Daykin Family Law is expertly skilled in children’s and parenting matters including child custody mediation, and works closely with psychologists, social workers, and mediators to help you and your family stay out of Court wherever possible. We can recommend a suitable mediator for your matter and assist in inviting the other parent to mediation.
At Daykin Family Law, we place a high importance on assisting clients to reduce conflict and maintain respect in the co-parenting relationship after separation as much as possible. Shannon Daykin is an experienced Family and Divorce Lawyer. An Accredited Family Law Specialist, Shannon was recently named a Leading Family & Divorce Lawyer (Recommended, Brisbane) and a Leading Parenting & Children’s Matters Lawyer (Recommended, Queensland) in the prestigious Doyle’s Guide 2018 and 2019. In 2019, Daykin Family Law was named in the Doyle’s Guide as a Leading Family & Divorce Law Firm (Recommended).
We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family. Contact us at (07) 3338 5645 to make an appointment for a fixed fee initial consultation today.
Divorce or separation can be a challenging time for anyone, especially when it comes to dividing property and finances. As one of the most significant issues to consider during the legal process, property settlement after divorce or separation can cause a great deal of stress and uncertainty. However, understanding the ins and outs of divorce property settlements can help you achieve the best possible outcome for yourself and your family.
In this article, we cover some handy things to know about property settlement after divorce including the legal framework, and the factors that influence property division, and we also look at an in-depth example. Our aim is to provide you with the information and resources you need to navigate this complex area of family law with confidence.
At Daykin Family Law, we believe that a comprehensive understanding of divorce property settlements is essential in achieving a fair and just outcome for all parties involved. If you’re in the Brisbane area, contact us today to speak to our property settlement lawyers.
How Does Property Settlement Work?
Property settlement in the context of a relationship breakdown can be a complex and emotionally charged process. It can involve the division of assets, financial resources, superannuation, and debts between two parties following the end of their relationship.
If you separated from your de facto partner after 1 March 2009, you may have the right to apply for a property settlement and/or maintenance under the Family Law Act.
How To Reach A Property Settlement Agreement
Negotiating a property settlement can be stressful and complicated. Hence, you might consider engaging a lawyer to assist in negotiations with your former partner. Even if you choose not to use a lawyer for the negotiation process, it’s crucial to seek legal advice before signing any agreement. Importantly, this advice should come from a lawyer who hasn’t previously advised your ex-partner.
Ideally, both parties should aim to reach an agreement about the division of property. This agreement can then be formalised into a court order, known as a consent order, which must be adhered to. Another option for a legally enforceable and binding agreement is to enter into a Binding Financial Agreement.
If an agreement cannot be reached, you have the option to apply to the court for property orders, which will dictate how the property should be divided.
Before applying to the court, certain pre-action procedures must be undertaken. Family dispute resolution services are available to help you reach an agreement. Family Relationship Centres might also offer assistance, particularly in cases where children are involved, though they are unable to provide legal advice. We often refer clients to private mediators, and work with a number of highly respected mediators in our field.
For any financial difficulties arising during this process, a financial planner or a financial counsellor can offer guidance. Don’t hesitate to seek professional advice to ensure your rights and interests are well protected.
Can A Property Settlement Agreement Be Changed?
Once lodged with the court, property settlement agreements via Consent Orders can be altered in only defined ways, unless both parties agree to the changes. Please note that even if you both consent, the court will not enact an order unless deemed ‘just and equitable’, essentially meaning appropriate for both parties.
For advice on varying or amending Consent Orders when there is no agreement to do so, contact us to discuss whether you may have grounds and any options.
How To Calculate Property Settlement
The Family Law Act essentially prescribes a four-step procedure to calculate property settlement in divorce, after it is established that it would be just and equitable to have a property settlement. Let’s break down these steps.
Step 1: Identification and valuation
The first step involves identifying and valuing all the property from the relationship or marriage, which also includes debts. It’s important to remember that this includes not just property and assets acquired during the relationship, but also those obtained before or after the marriage (or relationship).
Step 2: Consideration of contributions
The second step is to consider what each person has contributed to the relationship. These contributions could take various forms:
- Earnings from employment or businesses
- Savings accumulated during the relationship
- Gifts and inheritances received
- Property owned before the relationship began
- Improvements made to any property
- Contributions as a homemaker and parent
All these contributions, among others, can be taken into account to ascertain both parties’ entitlements.
Step 3: Future needs factors
The third step involves considering other factors outlined in the law, such as:
- Each person’s future earning capacity
- Age and health of each person
- Care and financial support for children
- Responsibility for looking after other people
- The length of the relationship
It’s important to note that the law does not consider who left the relationship when deciding what a fair division of property is. It aims to ensure the division is just and equitable, given the totality of the circumstances. A party’s conduct rarely has relevance in property settlement matters, but this can occur in certain circumstances.
Step 4: Court’s decision
Finally, the court will decide the exact division of the property. The court’s main concern is essentially ensuring that the division of property is just and equitable in all circumstances. This means that the court will look at all the information presented, apply the law, and make a decision that it considers appropriate.
Remember, while these steps provide a general framework, the exact process can vary depending on the specific details of each case. It’s highly recommended to seek expert legal advice to ensure your rights and interests are properly represented and protected in a property settlement.
Divorce property settlement example
Consider a divorce scenario involving Alex and Jamie where they have attended a mediation and reached an agreement on how to divide their property.
We’ll simplify the 4-step property settlement process to help illustrate how they came to their agreement and what the outcome was.
Step 1: Asset identification
Alex and Jamie’s financial picture is as follows:
Assets:
- Savings: AUD $50,000
- Shared home: AUD $1,000,000
- Alex’s car: AUD $20,000
- Other assets: AUD $10,000
- Total: AUD $1,080,000
Liabilities:
- Outstanding mortgage: AUD $150,000
- Total: AUD $150,000
Superannuation:
- Alex: AUD $80,000
- Jamie: AUD $70,000
- Total: AUD $150,000
Given these figures, the net value of the couple’s combined assets is calculated as follows:
Assets – Liabilities + Superannuation = Net Asset Pool
$1,080,000 – $150,000 + $150,000 = $1,080,000
Alex and Jamie have total net assets amounting to $1,080,000. We call this “the property pool” or “the matrimonial property pool” for example.
Step 2: Evaluate contributions
Next, the contributions each party has made to the relationship, both financial and non-financial, need to be evaluated.
Neither Alex nor Jamie owned any property prior to marriage. While their superannuation holdings are different, their earnings have been relatively similar. Therefore, their financial contributions may be considered around equal. However, Jamie, who has taken on the role of primary caregiver for their two children, has contributed more in the sphere of homemaker and parenting. Recognising this, they agree that Jamie should receive an additional 2.5% in the final division on the contributions step.
Step 3: Assess future needs
With two children who still need care, an adjustment in favour of the primary carer is warranted.
While Alex will be involved in the children’s lives, the parties agree that Jamie, as the primary carer, will receive an additional adjustment of 2.5%.
Step 4: Justice and equity
The parties agree to consent orders that have the effect of both of them retaining super, selling the home and both Jamie and Alex receiving a sum of money (in addition to the other items they each own). See more on this below.
The proposed settlement is arguably just and equitable, given they will each retain super of fairly similar amounts and cash to move forward.
The outcome
After taking into account the entire process, Alex is allocated 45% of the net assets, and Jamie is allocated 55%. This was achieved by agreement.
Jamie and Alex have agreed that there will be no superannuation splitting. They will each retain their respective superannuation entitlements as part of property settlement.
They expect to receive approximately $820,000 once the house is sold and all sale-related costs (including marketing costs) are paid. When you take out the sale costs, the total net pool comes down to $1,050,000 in total.
Therefore, the effect of the settlement is that Jamie will receive $577,500 (55% of $1,050,000), and Alex will receive AUD $472,500 (45% of $1,050,000).
It is agreed that Jamie will keep the cash savings of $50,000, other assets of $10,000 and her super of $70,000. To achieve a property settlement split of 60% overall on these figures, Jamie needs to receive the sum of $447,500 from the house sale. Her overall property settlement entitlement is then as follows:
$50,000
+ $10,000
+ $447,500
+ $70,000
577,500 (55%)
It is then agreed that Alex will keep his car worth $20,000 and his super of $80,000. Alex will receive the rest of the net sale proceeds, totalling $372,500. His overall property settlement entitlement is then as follows:
$20,000
+$80,000
+$372,500
$472,500 (45%)
The above is an example of how the property settlement process can be stepped out, showing you a global approach to dividing property after the breakdown of a marriage. The above does not constitute legal advice. Every situation and circumstances are different, and entitlements can vary. Expert advice is needed to ascertain what is best for you, and how best to achieve your goals.
Daykin Family Law can help you with your property settlement
Here at Daykin Family Law, we aim to guide you through property settlement and divorce, providing expert legal advice tailored to your specific situation. Remember, navigating this process effectively is key to securing your financial future post-divorce. Contact us today for professional assistance in achieving the most beneficial outcome for you.
As government restrictions resulting from the COVID-19 pandemic easing, many families are starting to resume travel. A common question that separated parents often ask is whether they can travel with their children following a separation, and if there are any restraints on travelling.
Like all families, when travelling overseas or interstate, there are certain matters that separated families need to consider. Below we address some frequently asked questions when travelling with children from separated families.
Question: Can I travel with my children after separation?
The ability to travel with your children is largely dependent on the care arrangements that are agreed between the parents. If your parenting arrangements are subject to a Parenting Plan, it might stipulate how travel will occur and what information needs to be shared. If your parenting arrangements are subject to parenting Orders, then the Orders may include provisions relating to travel such as when you are permitted to travel with your children, how long you can travel for and what type of notice and information you need to provide to the other parent. It is important to comply with any Orders in this regard to ensure that you are not contravening any Orders.
A word of caution, penalties can apply if a person travels internationally with a child whilst parenting proceedings are on foot in the Court unless it is pursuant to Orders or there is certain consent given. This also applies to situations where Parenting Orders are in place. If your parenting arrangements are not subject to parenting Orders, then it may still be important that you provide notice to the other parent of your intention to travel with the children. This will promote good co-parenting and keep the lines of communication open.
It is not uncommon for a parent to feel reluctant for their children to travel. This may be due to a variety of reasons such as concerns for their personal safety, that they may miss the chance to spend time with the children or perhaps that the children may miss school or other important events. It can be essential to address any concerns that the other parent may have so that these concerns can be alleviated.
Question: What notice and information do I need to provide to the other parent before we travel?
If you want to travel with the children, you should consider providing the other parent with notice of your intention to travel if it is safe to do so. Such notice should ideally be provided well before your intended travel dates and should generally contain information such as a detailed itinerary for the planned travel, including flight times, a copy of a return flight confirmation and contact details such as an address and a telephone contact number for the children as some examples.
If there is a parenting Order or a Parenting Plan in place, then it is important that you check these documents to confirm what information you need to provide to the other parent as there may be certain requirements in this regard. It is important to contact a suitably qualified lawyer if you are unsure of your obligations pursuant to any Orders or Parenting Plan.
Question: How do I get a passport for my children?
Typically speaking, if both parents share parental responsibility, then both parents will need to sign any and all documents necessary to facilitate the production of an Australian passport and any renewal for such passports. If there is an Order for sole parental responsibility, then the other parent may not be required to sign any documents. Again, it is important that you review any parenting Orders or Parenting Plans and seek legal advice in relation to the meaning of these Orders if you are unsure.
Question: What happens if the parents are unable to reach an agreement about travel?
If the other parent is not agreeable to you travelling with the children, you can attempt family dispute resolution or mediation with respect to this issue. If you are still unable to agree, then the parent wishing to travel with the children may need to make an application to the Federal Circuit and Family Court of Australia (Division 1) or Federal Circuit and Family Court of Australia (Division 2) to determine this issue. If the Court deems that it is in the best interests of the children to travel overseas, then the Court can make an Order that the children can travel overseas without the consent of the other parent.
Question: I am concerned that my partner will remove the children from Australia without my consent. What can I do?
If you are concerned that your children may be taken overseas without your consent, you can apply to the Court to have the children placed on the Airport Watch List, otherwise known as the Family Law Watchlist. The Airport Watch List is maintained by the Australian Federal Police and is designed to prevent listed children from travelling overseas without your consent or an Order from the Court. The Airport Watchlist essentially alerts Police in the event that a person tries to remove the children from Australia. In this case, the children will be stopped at the airport and will not be allowed to leave the country. Generally, you may apply to place your children on the airport watch list in certain circumstances, including when:
- A court has issued an Order limiting or preventing the children’s travel;
- A Court has issued an Injunction limiting or preventing the children’s travel;
- There is an application before the Court seeking to limit or prevent overseas travel of the children;
- There is an application before the Court seeking an Order to place the children on the Family Law Watchlist; and/or
- An Order or Injunction is limiting or restricting the children’s travel overseas which is under an appeal.
If you are concerned that your children may be taken overseas, you should seek immediate legal advice. There are other measures that can also be taken.
Question: Can I travel with my children if their names are on the Airport Watch List but both parents agree for the children to travel?
If your children are on the Airport Watch List, then it is strongly recommended that you discuss any intended travel with a suitably quailed lawyer before you travel. This is to ensure that you are aware of any potential issues that may arise when you travel. If your children’s names are registered on the Airport Watchlist and both parents consent to the children being taken out of Australia, then you will need to remove your children’s names from the Airport Watchlist before you can travel outside of the country. This is an important step which can be overlooked and can be costly and disappointing when travel is already booked. If you wish to remove your children from the Airport Watchlist, and their names were placed on the list as a result of a court Order, you will generally require a further Order removing the children from the Airport Watchlist
Question: My former partner has taken our children overseas without my consent. What can I do?
In circumstances where the children have already been removed from the country without the other parent’s consent, urgent processes can be initiated for their return. This can include an urgent application under the Hague Convention when children have been taken to a country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention is an international treaty that provides a pathway to recover children who have been abducted so that they can be returned to Australia, or their home country. Not all countries are signatories to the Hague Convention. If your child has been taken overseas without your consent, you should seek urgent expert legal advice. Any delay may impact on your chances of success.
It is important that you understand your rights and obligations if you are planning on travelling with your children. Make an appointment with Shannon Daykin, an Accredited Family Law Specialist, to discuss your circumstances and needs.
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.
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.
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:
- 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
- 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.
Many separated couples can become stuck when negotiating arrangements for how to divide property, or what longer term arrangements will be in place for the children. It is always best to attempt to negotiate directly with your former spouse about potential options to resolve the dispute if your circumstances permit and it is safe to do so, rather than going straight to court. This is especially so when there are children involved and parents must continue to co-parent with each other. However, in some cases, the intervention of the courts becomes necessary to progress matters towards finality and to assist the parties in moving on with their lives.
The court process can seem intimidating to people who are not familiar with it, as there are a myriad of rules and regulations, as well as procedures, that must be followed by litigants and anyone else involved, including lawyers.
Read on to get a basic understanding of, how does the court process work in family law matters? This will cover how proceedings are initiated and we will address some of the more commonly encountered steps involved in litigation.
The Courts
Most states and territories, including Queensland, have a Family Court and a Federal Circuit Court, both of which may hear family law matters, but knowing which court is right for your case can be difficult.
The Family Court is a superior court and has jurisdiction to hear and determine family law matters as well as appeals. The matters heard in the Family Court tend to be more complex matters, whereas the less complex matters are generally heard in the Federal Circuit Court. In any event, applications filed in the Federal Circuit Court may be transferred to the Family Court, and vice versa, if the court determines that it is necessary to do so. Changes are coming to the Court system later in 2021, but this is the state of the system for now, in a nutshell.
How to commence family law proceeding
An applicant may file an application in either the Family Court or the Federal Circuit Court to start their case. Regardless of which court you file in, the court will apply the relevant provisions of the Family Law Act and any other relevant legislation, however it is important to note that the court rules and procedures may vary.
Generally, proceedings in family law matters are initiated at the filing of an initiating application, however depending on the nature of your case, this may not be the appropriate application for you. Initiating applications set out the orders sought of the court on an interim and/or final basis. The nature of the orders sought will of course depend on whether the application relates to property settlement and/or parenting matters, and the requirements tend to vary depending on the case.
There may also be other documents that need to be filed with the initiating application, such as an affidavit, a financial statement in property matters and a notice of child abuse, family violence or risk in parenting matters.
Keep in mind that before an application for parenting matters is filed in the Court, parties are required to attempt family dispute resolution or seek an exemption from this requirement in certain circumstances.
Responding to an Application
If you happen to find yourself to be on the receiving end of an initiating application, you will be identified as the “respondent” in the case and you will often be required to file a Response to Initiating Application. Similar to the requirements for an initiating application, your Response may need to be accompanied by an affidavit, as well as the orders you wish to seek from the court, such as interim and/or final orders. The financial statement and notice of child abuse, family violence or risk may also need to be filed, depending on the circumstances.
First return date
The next step in family law proceedings is often a first mention hearing. This hearing enables parties to attend Court (usually electronically at the moment) and deal with interim matters sought in the application and/or response. At this hearing, the court may consider the material filed by both sides. The court may also make certain orders to assist parties in trying to resolve various issues in dispute in these early stages. For example, in property settlement matters, the court may order that parties exchange disclosure documents (if such documents haven’t been exchanged already) or attend a mediation or conciliation conference to try and negotiate a settlement outside of court.
In parenting matters, the court may make an order for a family report to be prepared. If this occurs, a family report writer will interview the parties, and sometimes the children, and provide a detailed report with recommendations based on their findings. The court may then consider these recommendations when making any interim and/or final parenting orders.
Final Hearing
The final hearing, also known as a trial, is a hearing before a judicial officer who will conduct the trial and make a decision about the outcome of your case. During the trial process, the parties and other witnesses and/or experts (if applicable) may be called to give oral evidence and be cross-examined by the other side. The Judge will generally also consider the other evidence filed in the court such as affidavits, family reports and subpoenaed material, to make a final determination and issue final orders.
The trial might run for no more than 1 day in some cases, but in other cases the trial might run for 2 or 3 days or, sometimes, much longer. The time required for the trial will largely depend on the specific circumstances of each case and the issues in dispute.
Court etiquette
It is important to remember that Courts are formal places and there is an expectation that anyone present before the court must behave in a respectful way and follow the necessary rules and procedures of the court. Failure to comply with court rules or inappropriate behaviour in court may result in a fine or even jail time.
Dress appropriately when you attend court and be sure to switch off your mobile phone and other electronic devices prior to entering the court room. You should wait in the public gallery seating area until your matter is called, and it is best to avoid speaking until you are spoken to by the judge.
See the following Family Court of Australia webpage for further tips on attending your court hearing: http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/about-going-to-court-and-court-processes/tips-for-your-court-hearing/
Seek legal advice
Overall, navigating through the court process can seem daunting and intimidating for those who are not familiar with the system. Often, the requirements for commencing proceedings and the steps involved may differ depending on the circumstances of each individual case, the needs of the parties and/or children and the orders sought. This is why it is best to seek legal advice about your case and tailored advice regarding the best options that suit your individual needs and the needs of your family when it comes to litigation or your family law matter generally.
Contact us today and make an appointment with Shannon Daykin, an Accredited Family Law Specialist, to discuss your circumstances and needs. 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, and named on the List in previous years. 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 a fixed fee initial consultation today.
This article addresses the topic of domestic and family violence. If you or a loved one is in danger or at any risk of domestic or family violence, or if you are concerned for your personal safety, we urge you to contact 000 and ask for the police immediately.
Unfortunately, family violence can be prevalent in many matters that come before the Family Law Courts. The Family Court of Australia and the Federal Circuit Court of Australia take family violence very seriously. Domestic and family violence is an issue that has an impact on all members of a family, including of course on children, and can impact on the wider community. Many find it difficult however to know for sure exactly what behaviour constitutes family violence, or just knowing what steps to take to protect yourself and your loved ones can be difficult.
Read on to find out more about domestic and family violence and what types of orders you can obtain from the Magistrates Court to protect yourself moving forward.
What is domestic and family violence?
Domestic and family violence (DFV) does not always involve physical violence. DFV is often recognised as an ongoing pattern of behaviour by a person in a relationship which is aimed at controlling another person, and this control can come in various forms.
Some examples of DFV are:
- Stalking and surveillance – this may include following you, frequently dropping by your home or workplace to “check-up” on you, and lingering outside your home or workplace;
- Physical abuse – physical violence is actual physical contact or threat of physical contact, such as hitting, punching and pushing. This may also include behaviour such as destroying property or punching walls even if there is no injury inflicted on your body as a result;
- Psychological & emotional abuse – this includes behaviour aimed at undermining your feelings of self-worth, such as constant criticism and belittling. It may also include manipulative techniques to control you, such as the use of blackmail;
- Sexual abuse – this relates to any unwanted or forced sexual activity, such as forcing or coercing you to engage in sexual behaviour or deliberately causing pain during sexual intercourse;
- Financial abuse – this may include be behaviour such as controlling your spending, withholding your pay, restricting access to joint bank accounts, and preventing you from working or furthering your education.
The above is, of course, just some examples of DFV and is not intended on being an exhaustive list. An assessment of your individual circumstances and your family dynamics would be necessary to ascertain whether particular behaviour might constitute DFV.
What is a Domestic Violence Order?
If you or any of your family members are experiencing DFV, you might consider reporting the incident(s) to the police as soon as practicable. Also, an application to the Magistrates Court of Queensland for a Domestic Violence Order (DVO) can be made.
A DVO is a Protection Order made by the court to stop threats or acts of domestic violence.
The DVO names the aggrieved person(s), that is, those who are experiencing the domestic violence. It also names the person who is perpetrating the violence as the respondent.
The purpose of a DVO is to keep the aggrieved safe by restraining the respondent from committing further acts of family violence. The DVO may also include a wide range of other conditions imposed on the respondent, such as prohibiting them from:
- approaching you or coming within a certain distance from your home or workplace;
- approaching your relatives or friends;
- going to a child’s school or day care centre; and
- contacting you in any way (including by phone or on social media).
Who can apply for a DVO?
In Queensland, to be eligible to apply for a DVO, the alleged violence must have occurred when the parties were:
- in an intimate personal relationship; or
- in a family relationship; or
- in an informal unpaid care relationship.
Importantly, you do not need to apply for the DVO by yourself. The police can apply to the court for a DVO on your behalf. In addition, a lawyer, friend, family member or any other trusted person can also apply for you. Regardless of who applies, the Court will make an order with the conditions it considers appropriate, and the police will enforce the order accordingly.
Types of Domestic Violence Orders
The court may make the following DVOs in your matter:
- Temporary Protection Order; or
- Protection Order.
If you are in need of urgent protection, you can request a Temporary Protection Order (TPO) to be considered by the court when you file your application. TPOs are made by the court to protect those in immediate danger until the court is able to consider whether to make a final protection order at the final hearing.
During a final hearing, the court will assess all of the evidence based on the circumstances of the alleged offending, hear any cross-examination of parties and then make a final determination of the application. If the court considers that the circumstances warrant there being a DVO, the court may impose a Protection Order. A Protection Order is generally made for the minimum period of 5 years, although the period may be shorter if the court is satisfied that it is appropriate to do so. In any event, the period of the order may be extended if the circumstances of the case permit.
Seek legal advice
Domestic and family violence is a serious matter and taking steps to apply for a Domestic Violence Order may seem daunting but in some cases is necessary to protect safety. Being on the other side of an application for a Protection Order can also be difficult to navigate without the benefit of legal advice. Keep in mind that the application itself and any subsequent orders are legal documents and there may be consequences for making false statements or for any non-compliance with orders.
If you have concerns for your safety and/or are considering applying for a domestic violence order, contact us today to arrange an urgent appointment with Shannon Daykin, an Accredited Family Law Specialist, to discuss your circumstances and needs. 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, and named on the List in previous years. 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 with a domestic violence lawyer for a fixed fee initial consultation today.
