Ending a Relationship Archives | Page 4 of 4

Working in family separation

In the daily work we do as family lawyers, we are reminded what an immense honour it is for a client to place their trust in us. This trust is many fold. Trust that we will do what’s best by steering them in the right direction, not making mountains out of mole hills that can destroy relationships and benefit only the lawyers. Trust that we will resolve instead of create conflict. Trust that we won’t lose sight of the bigger picture, even if clients do.

For many of us lawyers, meeting all of these needs comes naturally, we are committed to avoiding the long term damage that messy separations can cause for clients and their children. Simply, because we stake our reputation on our ability to problem solve effectively, some of us have families of our own, and we many of us truly care.

How we help

We care about how your separation impacts on you and your children, and what the future holds for you all. Unearthing what you need is the first step towards achieving a settlement that will ensure you can move forward with certainty, whether it be a need for enough capital to re-establish yourself in a new home, or retain your business. Sometimes when people come to us, they don’t know what they want or how they will move forward at all and that’s ok. Separation is a process and we know the steps needed to reach finality as efficiently as possible.

It is a privilege working with those clients who genuinely want to remain amicable with their children’s other parent, and the person they created a life with. Relationships can be, at best, fragile after separation. At worst, relationships can be decimated beyond repair and often in this case lead to long term damage to children. We see all too often the damaging impact of litigation on families, and it has been highlighted in the news recently about the issues with the system. How lawyers go about their work in a family separation can have a lasting impact on many people in one matter. We are mindful of this responsibility and this guides how we practise.

Steering clear of family law courts

For many, litigation is not a sensible or practical option, particularly when there are so many alternatives. The traditional forms of positional bargaining back and forth through lawyers can be very costly. We work with a number of other family lawyers who think like us and have the skills to short shrift the expensive traditional model, and reach a resolution sooner for both people.

Collaborative law is a process that can assist separating couples to place their goals and interests at the forefront of negotiations. There is also a co-operative process we adopt informally with other colleagues which has excellent outcomes for our clients. Mediation services are also another alternative as the assistance of an independent third party can be enormously advantageous.

Separating property after separation, agreeing on spousal maintenance and negotiating child custody can be painful, but it doesn’t have to be. With so many alternatives available, there is often a path to be chosen away from the court which will save time and money.

Stepping towards your family law settlement

Divorce lawyers, family lawyers, child custody lawyers… whatever you want to call us. We all have responsibilities to our clients and one of those responsibilities is to explore these alternative dispute resolution processes with you. In essence, we are problem solvers. We obtain your instructions in a comprehensive way, advise and guide you and strive to get you from A to B with your dignity in tact and, hopefully, an amicable co-parenting relationship you can be proud of when your children are older.

Talk to Daykin Family Law today about how we can guide you towards a peaceful and amicable separation and divorce. You will be supported by an Accredited Family Law Specialist and a team that are focussed on achieving your goals. Appointments in Fortitude Valley near Brisbane CBD, or by phone or Skype for regional or overseas clients.

In other parts of the world, they call it “alimony”. In Australia, we call it “spousal maintenance” for married couples or “maintenance” for de facto couples.

Spousal maintenance is money paid from one spouse to another to support them financially. It can be obtained by married couples either before or after a separation, or de facto couples who have separated on a final basis.

For a clearer understanding of the concept and purpose of spousal maintenance, visit our article on What is Spousal Maintenance?

Eligibility for spousal maintenance

Under the Family Law Act 1975 (Cth) (FLA), the court can make any order for maintenance that it considers appropriate.

To be eligible to receive spousal maintenance, the following must apply:

Need (established by the spouse who is to receive payment)

To obtain maintenance, the party must be unable to support themselves adequately due to obligations to care for a child of the relationship who is under 18 years of age, their age, incapacity to obtain employment or some other relevant factor. There are other circumstances that a court might consider as an adequate reason for a party to claim they are unable to support themselves.

Capacity to pay (demonstrated by the spouse who is to make payment)

A party is only required to maintain the other party where they are “reasonably able to do so”. This will be assessed by considering the income, property and financial resources of the party.

Each spouse will be required to list their total income and reasonable expenses to determine what deficit or surplus exists, as well as other information about their financial circumstances. This will help the court to determine how much spousal maintenance may be payable.

How much spousal maintenance am I entitled to?

There is no set formula or calculator to find out how much spousal maintenance you are entitled to. The amount that your ex-partner is liable to pay as maintenance will be a question for the Court to determine, once they have determined your eligibility. It will based on the facts that are presented to the court in relation to the need of one party for maintenance and the capacity of the other to pay maintenance.

In making a determination of eligibility and quantum/type of payment, the court can consider the factors set out in the FLA. A non-exhaustive list of those factors is:

Age and state of health of the parties;
Income, property and financial resources of the parties;
Ability for each of the parties to obtain appropriate employment;
Any duty of each of the parties to support a child or other person;
Eligibility for allowances or benefits from the State or Commonwealth or their superannuation fund; and
The length of the marriage and the extent to which that has affected one person’s earning capacity.

Spousal maintenance payments can be made in many different forms, such as periodic payments (for example weekly or monthly payments), lump sum payments or a transfer of specific property.

How do I go about seeking spousal maintenance?

Parties to a marriage or de facto relationship which has broken down can agree to one party paying the other maintenance payments. If no agreement can be reached, one party can apply to the court for an order for spousal maintenance. The application can seek spousal maintenance payments only or at the same time make an application for property orders with the Court for a property settlement. Urgent applications for maintenance are also possible.

How long do I pay spousal support?

If you are the payor of maintenance, you may be questioning how long you might have to pay it for. Spousal maintenance orders can be made when there is income earning disparity between the parties and required to be paid for a certain period, for example to allow one party to re-establish themselves in the workforce so that they can support themselves into the future. Therefore, the length of time that you may be required to pay will be dependent upon your spouse’s individual circumstances and their future needs.

Time limits

It is important to note that there are time limits which apply to applications to the court for spousal maintenance and maintenance orders.

For a married couple, parties have 12 months from the date of a divorce order coming into effect to make an application for spousal maintenance. For a de facto couple, parties have 2 years from the date of separation to make an application to the Court for maintenance orders.

In limited circumstances, a Court may grant leave to proceed outside of these time limits in certain circumstances but this is not guaranteed and court proceedings would be required.

Finding out more about spousal maintenance

At Daykin Family Law, we can advise you on all aspects of spousal maintenance and maintenance. Contact our office today for a fixed fee initial consultation with our Director and Accredited Family Law Specialist, Shannon Daykin, to discuss your specific circumstances and potential entitlements or liabilities.

Have an enquiry?

Please fill out the form and one of our team will be in touch with you as soon as possible.

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

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

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

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

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

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

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

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

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

What about the fur babies?

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

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

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

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

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

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

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

First published 17 November 2017

Obtaining final parenting orders can be a lengthy and often emotionally taxing process for many parents. After all the effort and energy invested in securing an order, it can be deeply frustrating when the other parent breaches these orders.

If you’re currently dealing with breaches of parenting orders, understanding your options and the legal avenues available to you can make a significant difference in resolving the situation.

What Constitutes a Breach of Parenting Orders?

In Australia, a breach of parenting orders occurs generally when a party:

Intentionally fails to comply with the orders.
Makes no reasonable attempt to comply with the orders.
Prevents or aids another person in contravening the orders.

Common examples of breaching parenting orders include:

Failing to return the child at the agreed time.
Using corporal punishment (such as smacking) when expressly prohibited.
Discussing prohibited topics (e.g., adult issues) with the children again when expressly prohibited.

What Is a Reasonable Excuse for Breaching Parenting Orders?

In some cases, there may be a reasonable excuse for breaching parenting orders, which can act as a defence during court proceedings. Common reasonable excuses include:

Believing on reasonable grounds that the contravention was necessary to protect one’s own health and safety or the health and safety of the child.
The court accepted that the breach ought to be excused under specific circumstances.

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

However, proving a reasonable excuse requires careful consideration of all circumstances. It’s recommended to seek professional advice before presenting such a defence.

Struggling to navigate co-parenting? Check out our article on effective co-parenting strategies.

Legal Remedies for Breaching Parenting Orders

If the other parent breaches parenting orders without reasonable excuse, you have several legal options available to seek compliance or punishment for the contravention. These include:

Application – Contravention Filing this application with the Federal Circuit and Family Court of Australia may lead to various remedies, including:
- Compensating the other parent for lost time with the child.
- Varying the existing parenting orders.
- Ordering a parenting into a relevant program.
- Imposing fines or, in serious cases, imprisonment.

Note: Filing a contravention application can sometimes result in the court varying existing orders. This is why we recommend seeking legal advice before pursuing this option.

Initiating Application to aid compliance with the Orders If your primary goal is to ensure compliance rather than punishment, an Initiating Application may be appropriate. This legal action aims to ensure that the contravening party complies with the existing orders or seeks new orders to address non-compliance. However, keep in mind that costs orders can be made if an application is unsuccessful. Daykin Family Law regularly advises clients on these issues, including whether the Court is likely to vary certain parenting orders, or not. There are now specific provisions under the Family Law Act 1975 (Cth) to do with varying existing parenting orders and expert legal advice should be should for these matters.

Non-Court Solutions for Breaching Parenting Orders

In some cases, resolving the breach outside of court may be the best approach, as litigation can be both costly and time-consuming. Alternative options include:

Family Dispute Resolution (FDR): This process involves mediation between the parties to discuss the breaches and seek mutual resolutions without court intervention.
Negotiation: Some breaches can be resolved through open and constructive communication, ensuring that both parties understand the terms of the parenting orders.

It’s important to explore these options before turning to the courts, as resolving disputes amicably can be less stressful for all parties involved, especially the children.

Seeking Legal Advice

If you believe that the other parent is consistently breaching the parenting orders, seeking legal advice is essential. An experienced family lawyer can help you assess your options and ensure you take the right steps to resolve the issue efficiently and effectively. At Daykin Family Law, we specialise in navigating complex family law issues and finding solutions that are in the best interest of you and your children.

Contact Daykin Family Law for a fixed-fee consultation to discuss your options.

Here in south-east Queensland, actor Johnny Depp and his wife Amber Heard have been in the news for a number of reasons. Firstly, for the couple’s reported failure to declare their two dogs Pistol and Boo to Australian immigration authorities when they arrived at the Gold Coast and, more recently, following the breakdown of their marriage.1 Johnny Depp is a successful Actor who earns a large income, and reportedly after filing for divorce, his wife Amber made a considerable claim for spousal maintenance. This claim was later withdrawn, reportedly for a variety of reasons,2 however this high profile example draws attention to the important concept of spousal maintenance.

In Australia, spousal maintenance refers to financial support given by a party to a marriage or de facto relationship to the other party of that marriage or de facto relationship who is unable to adequately meet their reasonable financial needs.

During a marriage or a de facto relationship, one person may take time off work for a variety of reasons, such as for maternity leave, to become the primary carer for the children or to attend to the running of the household. In the event of separation, this time off work often leads to that person being economically disadvantaged, due to the loss of income or promotions that would have been achieved if they were to have remained in the workforce. The purpose of spousal maintenance is therefore to adjust for any disparity between the incomes or earning capacities of spouses based on their respective needs.

In determining spousal maintenance orders, the Court considers factors such as age, state of health, income, property and financial resources of both of the people in the relationship and primary care of children of the relationship. Spousal maintenance orders can be made by consent or after a contested hearing, and be made by the Court urgently if necessary. Spousal maintenance can be in the form of periodic or ongoing payments for a period of time.

If you have recently separated from your spouse or de facto partner or are thinking of separating and need more information about spousal maintenance, such as your entitlements or obligations, contact us today for a reduced fixed fee initial consultation to discuss your options. We are experienced in spousal maintenance matters and can help you obtain the support you need to move into the next phase of your life.

By Daphne Chiwaya, Lawyer, Daykin Family Law – first published on 26 July 2016