Family law serves as a foundation in safeguarding the interests and rights of families during times of significant transitions. This branch of law deals extensively with issues that affect the core of family life, including marital arrangements, parental responsibilities, and the division of assets.
Understanding Family Law In Australia
Family law is a critical branch of the legal system that addresses issues directly impacting individuals and families. Its primary aim is to resolve legal matters related to familial relationships, such as divorce, child custody (known as parenting arrangements), and property settlements, and more. This field of law ensures that all parties, especially children, are treated fairly and respectfully during these challenging times.
In Australia, family law governs the processes for legal separation, the dissolution of marriage, and the arrangements for parenting post-separation. It helps in defining the legal obligations and rights of family members towards each other. This framework is designed not just to settle disputes but to support the wellbeing of all family members through legally sound, equitable solutions.
Key Areas of Family Law
Family law encompasses a variety of areas each designed to address specific aspects of family dynamics and needs.
Marriage and Divorce
Regulations surrounding marriage and divorce form a significant part of family law. This includes understanding the legal requirements for entering into a marriage or relationship and the procedures for a lawful separation or divorce.
Parenting and “Custody”
At the heart of family law are the children’s interests. Parenting laws detail how decisions about a child’s upbringing are made, focusing on living arrangements and child custody for both parents. This is known as parenting arrangements in Australia.
Financial Arrangements
Family law also covers financial provisions relating to spousal maintenance and child support. These laws ensure that financial responsibilities towards family members are clearly defined and upheld, providing necessary support where needed.
Property Settlements
Upon the breakdown of a relationship, property settlement decides the fair distribution of property and assets. Family law provides a framework for equitably dividing property acquired during the relationship, considering the contributions of each party and future needs.
Domestic Violence
An integral part of family law can be its role in providing protections against domestic violence. The law offers mechanisms to protect individuals and their children from abusive situations through protection orders and other legal interventions.
The Role of Family Courts in Australia
Family courts play a pivotal role in the administration of family law, handling cases that range from marital disputes to issues concerning children’s welfare.
Family Court Structure
Australia’s family court system is known as the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2). This Court replaced the former Federal Circuit Court of Australia and Family Court of Australia, established in 2021 to streamline and improve the efficiency of the legal process in family law matters.
Court Processes
The process typically begins with the filing of applications, where individuals seek judicial resolution to their family law disputes. The courts consider various aspects like the welfare of children, the justice and equity of financial settlements, among other matters.
Decision-Making Criteria
In making parenting decisions, the court primarily focuses on what is in the best interests of the children involved.
Alternative Dispute Resolution in Family Law
In family law, not all disputes need to reach the courtroom. Alternative Dispute Resolution (ADR) methods offer families a less adversarial way to resolve conflicts.
Mediation
Mediation involves a neutral third party who helps disputing parties discuss their issues and find mutually agreeable solutions. It’s particularly effective in family law for resolving matters concerning parenting plans and property divisions without the emotional and financial cost of court proceedings. Mediation allows families to maintain control over the outcomes, often leading to more sustainable and personalised agreements.
Collaborative Law
Similar to mediation, collaborative law involves both parties working with their respective lawyers and, sometimes, other family professionals to settle disputes out of court. Each party commits to solving the issues respectfully and transparently, aiming to reach a settlement that respects the interests of all involved, especially the children.
Benefits of ADR
Reduced Costs: ADR methods are generally less expensive than going to court due to the lower legal fees and quicker resolutions.
Privacy: ADR provides a private setting where sensitive issues can be discussed confidentially.
Less Stress: By promoting cooperation, ADR tends to be less adversarial, reducing stress and emotional turmoil for both adults and children.
Control Over Outcomes: Parties have more s
How Family Lawyers Can Help
Expert Legal Advice
Family lawyers are specialists in their field, equipped with the knowledge to provide clear, accurate advice personalised to the specifics of your case. They can help interpret the law in the context of your unique circumstances, ensuring you understand all your legal options and the potential outcomes.
Representation in Court
If your case goes to court, having a skilled lawyer to represent you is invaluable. They can present your case effectively, advocate on your behalf, and navigate the court proceedings, which can be complex and intimidating.
Negotiation and Mediation Support
Family lawyers can facilitate these discussions, ensuring that agreements are appropriate, just and equitable. They work to protect your interests while striving for amicable resolutions that serve the best interests of the entire family.
Drafting Legal Documents
From consent orders to parenting plans and financial agreements, family lawyers ensure that all legal documents are drafted accurately and comprehensively. This attention to detail helps prevent future disputes and ensures that agreements are enforceable.
Emotional Support and Guidance
Beyond just legal advice, family lawyers often provide emotional support. They understand the stress and emotional strain that family law matters can impose and strive to handle cases with empathy and respect, making the process less overwhelming.
Preventive Advice
Family lawyers can also offer preventive advice to help you avoid potential legal issues before they arise. This might include advice on pre-nuptial agreements or how to structure your finances during a marriage.
Connect with Daykin Family Law Today
Are you facing family law challenges or need expert advice on your rights and options? Reach out to Daykin Family Law for professional guidance and compassionate support. Our team of experienced family lawyers is here to help you, lead by QLS Accredited Family Law Specialist Shannon Daykin. Call us or book an appointment online and take the first step towards securing a positive resolution for you and your family.
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.
The breakdown of a marriage or de facto relationship can provoke intense disputes as to ownership, value and distribution of property. As such, finalising property settlement is often a major step in helping separated couples move on with their lives.
Do I have to go to Court to get a property settlement?
The first question that might come to mind is whether or not you actually have to go to Court to get a property settlement with your former spouse. The simple answer to that is no! In fact, most family law property matters can be resolved outside of court which can save you both money and time in avoiding potentially lengthy and emotionally taxing litigation. Whilst the court may be involved when seeking to formalise a settlement, actual attendance in court likely will not be required when an agreement is reached.
Read on below to get an understanding about property settlement matters and how your entitlements are calculated.
What is disclosure?
Disclosure in Family Law is an essential part of any property settlement, as it allows you to understand and identify the value of the property pool and whether the value of any assets are in dispute. Without knowing what the property pool is, it is very difficult to know what your entitlements to property settlement are and agreeing to any property settlement in such cases can be risky.
As such, both parties to the dispute have an obligation to provide full and frank disclosure to one another under the pre-action procedures set out in legislation. Ideally, this process should start as soon as possible and will allow you to smoothly transition to the next step of engaging in negotiations to settle property matters.
Considerations to determine a party’s property interests
Whether you were married or in a de facto relationship, there are 5 steps that a Court considers when determining how a property pool should be split. Those steps are:
- Whether it is just equitable to make an order in the first place. This step is generally satisfied if you and your former spouse have intermingled your finances, as an example;
- The next step is to identify the property pool, as we described above;
- The third step is to consider the contributions made by each party (more on this step below);
After that, it is necessary to consider the section 75(2) and 90SF(2) factors, which are also known as the “future needs” factors (see below for more details on this step); and - The final step is to consider whether the settlement is “just and equitable” given the circumstances of the case.
Undertaking disclosure will assist with the second step above, in ascertaining the property pool available for distribution.
Contributions
The third step in the property settlement process is to assess contributions. These are direct and indirect, financial and non-financial contributions made by each party or certain contributions made on their behalf.
Financial contributions may include the income earned by you as well as any gifts or inheritances received during the relationship. Non-financial contributions include any work such as renovations that increased the value of a property, as well as each parties’ share of homemaker and parenting duties. This includes things such as cleaning, cooking and raising children.
Future needs
Sections 75(2) and 90SF(2) of the Family Law Act relate to the future needs of the parties which are considered when determining property settlement entitlements. Future needs generally refer to factors such as:
- the age and health status of the parties;
- the income of each party and whether there is any income earning disparity;
- any factors impacting the parties’ income-earning capacities;
- the future parenting arrangements for the children.
Time limitation for property settlement
The Family Law Act provides that separated married couples have 12 months from the date that a divorce order takes effect to file an application for a property settlement and/or spousal maintenance. For de facto couples, the time limitation is 2 years from the date of separation. If you miss this time limitation, you will be required to obtain permission or “leave” from the court to proceed with any such application out of time which may or may not be granted, depending on the circumstances.
Seek legal advice
Knowing your entitlements to property settlement is an essential part of achieving the best possible outcome for you in your family law matters to enable you to make informed decisions. However, this may not be as easy as it seems, as there is no universal or specific formula to divide the property pool.
Working out what a party is entitled to is determined on a case-by-case basis and based on an assessment of the above as an overview. This is why it is best to seek legal advice about your case, your obligations and entitlements, as well as tailored advice regarding the best options to suit your individual needs and the needs of your family.
Contact us today and make an appointment with our property settlement lawyers to discuss your circumstances and needs. 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.
No relationship breakup is ever easy, especially when the financial burden of separation or divorce can be so heavy on the parties involved. On top of that, going to court to resolve your family law matters can be not only costly but also time consuming. Sometimes, the court process can take up precious financial and resources for years.
It is always best to consider litigation as a last resort, if you have exhausted other alternatives to resolving your dispute. It is for this reason that, in recent years, the courts have been placing greater emphasis on “Family Dispute Resolution” (FDR) processes which aim to assist parties to resolve disputes and settle matters outside of court.
Read on to get an understanding of two commonly used FDR processes for resolving disputes, namely, mediation and conciliation, and how they can assist you in your family law matter.
Mediation
Mediation is a well-regarded FDR process which aims to assist parties in family law matters to settle disputes by discussing differences and attempting to negotiate a potential outcome that would work for everyone involved.
Mediation is normally facilitated by a trained third-party known as a “mediator”. A mediator is a trained professional whose main role is to act as an impartial third-party to facilitate discussions and negotiations and keep matters focused on resolving issues in dispute.
Mediation is usually a voluntary process parties agree to, however the court has also developed mandatory dispute resolution procedures in some cases in order to assist parties in avoiding the high costs involved with litigation. For example, in parenting matters, the court requires compulsory mediation to be attempted by all parents seeking to obtain orders regarding children unless an exemption applies. We consider the reason for this is because courts have recognised that mediation is, in fact, a proven and successful way of resolving many disputes.
Mediation can take place with all parties and/or their legal representatives in the same room. Or, as an alternative, it can be conducted via “shuttle”. This means that the respective parties will remain in separate rooms during the mediation, with the mediator moving between the rooms and having separate meetings with any legal representatives.
Failing to reach an agreement and section 60I certificates
It is a requirement under the Family Law Act 1975 (Cth) that separating couples seeking parenting orders of the court need to first indicate that a genuine effort to resolve the dispute by FDR has been attempted. However, it may be the case that you find yourself dealing with another parent who is not willing to make a genuine effort in this regard, or simply the fact that an agreement cannot be reached despite a genuine effort being made. In such circumstances, a form known as the “section 60I certificate” is necessary to be filed with the court. Only registered FDR practitioners can issue such certificates and they allow parents to commence proceedings for parenting orders.
The following are five types of section 60I certificates that can be issued:
- You did not attend FDR due to the refusal or failure of the other party to attend;
- You did not attend FDR because the FDR practitioner did not consider it would be appropriate to conduct FDR in your circumstances;
- The parties attended FDR and made a genuine effort to resolve the issue(s) in dispute, but an agreement was not reached;
- The parties attended FDR but one or more of the parties did not make a genuine effort to resolve the issue(s) in dispute; and
- The FDR process commenced, but the mediator considered that it would not be appropriate to continue.
If you receive a section 60I certificate and decide to file an application in court, you will need to file it together with your initiating application.
Conciliation
Another common FDR process is conciliation. Conciliation is similar to mediation insofar as its main purpose is to assist the parties in reaching an agreement on the various issues in dispute and, in so doing, to avoid the incursion of further legal costs.
Legal representatives are permitted to represent parties in this process and, sometimes, are court ordered to do so.
Notably though, the main difference is that the conciliation conference is conducted by a court Registrar. A Registrar is a court lawyer that exercises certain judicial powers, such as the making of Orders. At the conciliation conference, the Registrar will look at the case from both sides and assist in exploring options for settling your case without the need for a final hearing. A Registrar cannot give legal advice, however they can talk with you about the legal principles that are applied when deciding cases.
As with mediation, the parties are expected to make a genuine effort to reach an agreement at conciliation. With that in mind, you should go to conciliation in a spirit of compromise and adopt a practical approach.
Seek legal advice
Overall, it has to be said that both mediation and conciliation is more cost-effective and speedier than litigation which can often go on for years. However, we understand that every single case in Family Law is different depending on your individual circumstances and the needs of your family.
For this reason, knowing what type of FDR process is most suitable for your case, if any, and when to consider engaging in such events, can be confusing and even daunting for many people. This is why it is best to seek legal advice about your case, your obligations and entitlements, as well as tailored advice regarding the best options to suit your individual needs and the needs of your family.
Contact us today and make an appointment with Shannon Daykin, an Accredited Family Law Specialist, to discuss your circumstances and needs. Shannon was recently 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 a fixed fee initial consultation today.
Going through any relationship breakup can be stressful and emotionally draining, especially if you have been married for a long time. In Australia, there is an important distinction that must be made between “divorce” and “separation” that not many people may be aware of. There are also different types of separation that effect the process of obtaining a divorce.
Read on to get an understanding of how and when you may have “legally” or “officially” separated with your former spouse and when you can file for divorce.
Divorce
Divorce is the legal term that refers to the severance of a marriage between two people. As such, divorce does not apply to couples in de facto relationships. Under Australian law, there is no requirement to prove the reason for the breakdown of the marriage. However, the parties do need to demonstrate to the court that the marriage has broken down irretrievably. This ground is established only if the parties have separated and thereafter lived separately and apart for a continuous period of not less than 12 months. The court will not make a divorce order if it considers that there is a reasonable likelihood of cohabitation being resumed between you and your former spouse. It is for this reason that an application for divorce can only be filed with the court once at least 12 months and 1 day have elapsed from the official date of separation.
Separation
In Australia, the legal definition of separation is when one party forms the intention to sever a marriage or de facto relationship and then communicates that intention to the other party. It seems like a simple definition, but many people may get confused about whether they are, in fact, separated for the purposes of Family Law in Australia.
Often, people may find themselves living entirely separate lives but within the same house, especially if there are children involved. Notably, the law does not require physical separation as evidence of a breakdown of a marriage or a de facto relationship. Couples may well be considered separated despite living in the same residence. This is known as “separation under one roof.”
If you continue to reside together with your former spouse, for example, for the sake of your children, this can potentially create some difficulties when it comes to filing for divorce. In these circumstances, a clear distinction needs to exist between you and your former partner living together for the sake of the children as parents, in contrast to living together as spouses. For this, an Affidavit is usually required in support of an application for divorce.
Marriages of less than 2 years’ duration
If you were married to your former spouse for less than two years, you will have an additional requirement of considering reconciliation with the assistance of a specified person when applying for a divorce. This is usually done in the form of marriage counselling. However, if your individual circumstances prevent any form of reconciliation counselling being a viable option, the parties would normally be required to obtain special permission of the court before being allowed to file an application for divorce. An Affidavit in this regard may also be required.
Process for filing for divorce
If you believe you are ready to file an application for divorce, you can commence the process yourself using the court’s online portal. You will first need to select whether you are filing a sole application (that is, by yourself) or if you are filing a joint application with your former spouse.
The requirements differ depending on whether it is a sole or joint application, whether there has been any period of separation under one roof and depending on the duration of the marriage, as outlined above.
Seeking legal advice
We understand that, sometimes, the whole process can be daunting and confusing, as no one marriage or relationship is ever the same. If you find it difficult to navigate through the process, feel free to reach out to one of our friendly lawyers who will be able to guide you in the right direction.
It is important to seek independent legal advice to help you understand your rights and responsibilities, and where possible, avoid going to court. There are also time limits which apply to filing in the Family Law Court for property settlement/and or spousal maintenance once a Divorce Order takes effect. If you are seeking legal advice about your separation, or just need to understand your divorce application options further, Daykin Family Law can help.
Shannon Daykin is an experienced Family and Divorce Lawyer, named as a Leading Family & Divorce Lawyer (Recommended, Brisbane) and 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).
Contact us today to make an appointment with Shannon Daykin, an Accredited Family Law Specialist. 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 a fixed fee initial consultation today.
The blog published by Daykin Family Law is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog publisher. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Daykin Family Law on any legal queries concerning a specific situation.
