Navigating through the Court process

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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.

What is domestic and family violence? What is a DVO?

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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:

  1. 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;
  2. 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;
  3. 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;
  4. 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;
  5. 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:

  1. approaching you or coming within a certain distance from your home or workplace;
  2. approaching your relatives or friends;
  3. going to a child’s school or day care centre; and
  4. 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:

  1. in an intimate personal relationship; or
  2. in a family relationship; or
  3. 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:

  1. Temporary Protection Order; or
  2. 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 for a fixed fee initial consultation today.

How do I work out my family law property settlement entitlements?

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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:

  1. 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;
  2. The next step is to identify the property pool, as we described above;
  3. The third step is to consider the contributions made by each party (more on this step below);
  4. 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
  5. 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:

  1. the age and health status of the parties;
  2. the income of each party and whether there is any income earning disparity;
  3. any factors impacting the parties’ income-earning capacities;
  4. 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 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.

Family Dispute Resolution: Ways to resolve your disputes faster and more cost effectively than going through court

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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:

  1. You did not attend FDR due to the refusal or failure of the other party to attend;
  2. You did not attend FDR because the FDR practitioner did not consider it would be appropriate to conduct FDR in your circumstances;
  3. The parties attended FDR and made a genuine effort to resolve the issue(s) in dispute, but an agreement was not reached;
  4. 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
  5. 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.

Navigating through separation and divorce: What you need to know

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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.

 

Spousal Maintenance vs Child Support: the basics

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It may come as a surprise to some that when a relationship ends, one party might still be compelled to make a lump sum or ongoing payments to support their former spouse.  Even if you do not have children with your former partner, you may still be required to pay a certain amount if the necessary requirements of “Spousal Maintenance” have been met. 

Spousal Maintenance is completely separate to child support, but the two are often misconstrued and taken to be one and the same.

In this article, we will discuss the differences between child support payments and spousal maintenance payments and briefly explain obligations in respect of these.

 

What is Spousal Maintenance?

Spousal Maintenance is essentially financial support that is paid by one former partner to the other partner of a marriage or de facto relationship that has broken down in circumstances where the other party is unable to adequately support themselves.  It is money which is to be used by the recipient to assist in payment of their reasonable living expenses.

You might be asking yourself, why would does financial support need to be provided to a former partner if there is no longer a relationship?  In short, the law in Australia states that a person may have a responsibility to financially assist their former spouse or de facto partner if that person cannot meet their own living expenses.  The duty to support and maintain each other works both ways, and this obligation may continue even after separation.

To be successful in an application for Spousal Maintenance, there are essentially two limbs that must be satisfied.  Firstly, the applicant must have a need.  Secondly, the respondent must have capacity to pay spousal maintenance.  There are a range of factors which the Court consider when a party seeks such orders, such as the age of the parties, care of children and the parties’ income and financial resources, to name a few.
 

Child Support

Child Support, on the other hand, refers to the financial support by a parent specifically for their child/ren.  A private arrangement for the payment of child support can be negotiated between the parties and recorded in a Binding Child Support Agreement or a Limited Child Support Agreement.  For the former, both parties need independent legal advice.  Such agreements can cover the payment of periodic child support (a regular amount for example) or non-periodic amounts.  Non-periodic amounts can include payments towards costs such as education, medical and extra-curricular costs.  Lump sum payments are also possible.

Alternatively, or in conjunction with the above, Child Support may be assessed at a particular rate by the Department of Human Services (Child Support Agency).  Child Support matters are managed by Services Australia which is the entity that administers the Australian Child Support Scheme. The Family Court or Federal Circuit Court of Australia does not generally deal with Child Support matters, although it may be possible to apply to the Federal Circuit Court of Australia for a departure from a child support assessment carried out by the Child Support Agency in certain circumstances.
 

Time limitation for Spousal Maintenance

It is important to note that there is a time limitation for a party to make a claim for Spousal Maintenance against the other party.  This date is 12 months from the date that a divorce order takes effect if you were married, and 24 months from the breakdown of your relationship if you were a de facto spouse.

Interestingly, the Court still has power to grant permission (“leave”)  to a party who is making an application for spousal maintenance (married) or maintenance (de facto) even if that party is out of time.  For this, the party making the application will need to demonstrate hardship.

What this means in practical terms, is that in some circumstances, it could be possible to make an application for Spousal Maintenance even after the limitation period has elapsed and/or after property settlement has been finalised.
 

Seek legal advice

There is no one particular way to approach matters involving Spousal Maintenance and Child Support, as it will really depend on the individual circumstances of every case.  This is why it is always best to seek legal advice about your situation, obligations and entitlements, as well as tailoring the best options to your needs and the needs of your family.

Sometimes people do not realise that they may be entitled to receive payments from their former partner by way of spousal maintenance.  Likewise, some people might fail to recognise the risk of there being a potential Spousal Maintenance application made against them in the future even after they finalise a property settlement.  There are ways to limit potential future liability in this regard, such as entering into a Binding Financial Agreement which effectively extinguishes spousal maintenance rights for one or both parties.

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.

 

Is January Really ‘Divorce Month’?

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It’s often said that January is ‘Divorce Month’, a time where there is suddenly an influx of separations and ensuing divorce proceedings, however is this really the case?  Today’s blog looks at why January has this reputation and what to do if you find yourself in this situation.

It is true that many family lawyers find themselves busier at the start of the year, with a reported spike in breakups of about 30% in January. This could be due to a myriad of factors, but may be associated with more time spent together over the festive season and the stress that can sometimes cause, for example an extended period of time spent unoccupied with work and the regular mundane distractions.

There has been reported anecdotal evidence of three main factors that contribute to the increase in separations and the onset of divorce proceedings in January, these are:

  1. The increased time spent together during the holidays: it’s fair to say that holidays are known to be a period of switching off and spending time with loved ones. This increase in quality time can have an adverse effect when a couple is under a period of certain strain, and can often heighten the stresses and existing relationship difficulties. This time of year may exacerbate existing issues and doubts in couples and bring their problems to the surface, becoming more clear and suddenly difficult to ignore.
  2. New year resolutions: with a new year brings new resolutions. This is often a time for self-reflection and plans for self-improvement. When a person has been dealing with stagnancy or unhappiness in their relationship, the new year can be a time for renewal and growth. This is often a purposeful time where individuals feel they can make the difficult decision to end a relationship in search for a clean break and a more positive future.
  3. Christmas spent with the family: usually a period of time where family holds the most meaning, and usually the most amount of time. Couples with children may more likely to resist ending their relationship during this time as they do not wish to cause strain on the family dynamic and result in stress to the children. Additionally, this period results in a lack of time and resources available for couples seeking legal advice due to taking care of the children. It is because of this that parents may choose to separate in this time as they are now provided the space to make decisions without the pressure of Christmas.

This was further backed by a 2016 report by the University of Washington who conducted research from hard data on divorce filings over a 14 year period. The evidence showed a clear and consistent rise in divorce proceedings beginning in January more than any other month of the year! The researchers behind this study noted the significant impact that the above points had on this pattern.

What should I do if I’m considering getting a divorce?

When you come to the conclusion that separation is the best option for yourself and your partner, the flood of information available can be overwhelming. It can be difficult to seek out factual information, understand your legal responsibilities, grapple with the division of property and finances on top of parental arrangements. In this time of heightened stress, it is important to have someone reliable you can speak to, someone you can trust and someone who can help to support you emotionally and logistically and who can also assist you in getting the best outcome available for you and your family.

When planning the next steps of separation towards divorce, a helpful list of practical steps supported by useful information is the perfect place to start. We recently wrote a blog on the basics of divorce to assist in this exact situation, this resource can be found here: https://daykinfamilylaw.com.au/the-basics-of-divorce-applications-2/

The main things to consider when beginning the first stages of the divorce process are:

  1. Financial and Property Settlements: one of the most important and stressful elements when it comes to divorce and the negotiation of assets among divorcees or separating couples. The levels of complexity of each of these settlements lies with each individual couple, sometimes agreements can be straightforward and made easy, other times no agreements can be reached and court action may be required. In the latter instance, it is advisable to work with a specialist family lawyer who is able to assist in the resolution of these differences.  It is also important to consider other advice needed, such as financial advice and taxation advice.  This is to ensure any agreement reached or orders sought are appropriate for your situation.
  2. Parenting Arrangements: another complexity when couples begin the separation process is the responsibilities around children and how to navigate the arrangements in the best interests of the children. The principal consideration in any parenting arrangement by law is that the best interests of the child are paramount. Negotiations and agreements often focus on many factors including where the children will live and how much time each parent will spend with the children considering holidays, birthday commitments and special days.  Other agreements can be reached around communications, travel and addressing specific issues.

It is important to seek independent legal advice to help you understand your rights and responsibilities, and where possible, avoid going to Court. If you are seeking legal advice about your separation, or just need to understand your options further, Daykin Family Law can help.

Contact us today to make an appointment with Shannon Daykin, an Accredited Family Law Specialist.  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.

 

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.

Co-parenting at Christmas – a Quick Guide for Separated Families

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Christmas is considered a very special time of the year for many people around the world, but for some it can be a time of sadness and frustration.  Following a relationship breakdown, Christmas may seem like a daunting time, particularly when parenting children across separate households.

Where both parents are willing and able and there are no safety concerns to consider, the best outcome of a separation is co-parenting. This is where both parents agree to put their children’s interests first and to communicate in a respectful, child-focused way, setting boundaries and compromising to lead the way to effective co-operation.

Here are some ways in which you can ensure the best chances of ensuring a happy and healthy Christmas this year for your children:

 

  1. The kids come first

When making decisions, always consider what is in the best interests of the children. Younger children may worry about whether Santa will reach them, whilst older children might have a preference for where they spend Christmas. Bringing them into the decision-making process can be beneficial for the whole family and make children feel heard.

 

  1. Communication is key

Each parent should communicate their expectations in advance with each other as it is important that both parents understand the other’s needs. Being prepared, realistic and willing to listen and compromise may make a stressful situation more manageable.

 

  1. Sharing of Christmas presents

In regards to Christmas presents, consider agreeing on a budgetary limit so as to avoid one parent being perceived as giving more than the other. To try and preserve some form of normalcy, both parents can agree to buy one main present for each child signed from both parents. This approach will demonstrate a united front.

 

  1. Sharing of time with the children

You may decide that your children should spend Christmas Eve at one home and Christmas Day at another.  Whatever you decide when co-parenting at Christmas, you can find ways to make it special for the children, and extended family too.

 

  1. Travel arrangements

Where traveling will be involved with one of the parents over Christmas, it is advisable to make sure the other parent has agreed to the plans, or that a compromise can be made for time spent together before or after the travel period if a Parenting Plan has not yet been agreed upon.

 

  1. Avoid any fighting

When discussing Christmas plans, ensure the discussion does not end up in a fight, especially in front of the children. Research tells us that this may perpetuate any guilty feelings the children may have over the separation.  Try to communicate in a clear and respectful way and ensure the children are not exposed to a dispute.

 

  1. Send updates

Agreeing on an ‘update’ style of communication can be beneficial.  You can report on activities, send photos of particular events and help the other parent to feel involved.  Give and ask for information that you expect to get as a parent in a timely manner.

 

  1. Accommodate the feelings of the children

Where the children may start to miss the other parent, consider allowing the children to contact the parent so as to alleviate their anxiety, especially where the children are still young. It is important that the children are not made to feel guilty for experiencing such feelings or feeling ‘stuck in the middle’ of a separation.

 

  1. Involve the children in the Christmas planning

When the Christmas arrangements have been planned and agreed between both parents, it can be important to communicate these plans to the children so that they feel involved and that there are no surprises for them.

 

  1. Be flexible and listen to the needs of the children

Where the children feel uncomfortable with any Christmas plans, it is important to take their feelings into consideration and consider whether any plans could or should be amended so that they feel safe and assured. Like the first tip, the children come first, so keep their best interests at heart.

 

Holidays like Christmas may be a difficult time for children especially young children therefore it is vital that each parent put aside their feelings and ensure there is a smooth transition for the children during this time. Despite all of your efforts, it is possible that difficulties may still arise. You can take responsibility for what you do as a parent, however you cannot be responsible for how the other parent behaves. If you find yourself in this situation where the other parent will not cooperate, remember that help is available.

If you’ve tried all the above tips but have difficulties communicating with the other parent after separation, you may need to consider other options.  This may include engaging a lawyer to help negotiate plans on your behalf, or engage the assistance of a mediator to assist in facilitating an agreement.

We can assist you through the process of separation and to come to an amicable agreement regarding parenting arrangements.

Contact us today to make an appointment with Shannon Daykin, an Accredited Family Law Specialist.  Shannon was recently named as one of Brisbane’s Leading parenting lawyers 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.

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.

Protecting your mental health through separation or divorce

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Separation or divorce can be an emotional journey that can have both physical and mental health effects on people.  The separation and divorce process, coupled in some situations with the family court process, can become incredibly stressful, taking a toll on the wellbeing of parties, sometimes impairing their judgment and decision-making abilities.

Literature tells us that separated couples going through the process might experience a range of overwhelming psychological symptoms that includes loneliness, sadness, shock, anger, uncertainty, guilt, betrayal, frustration, hopelessness, or a mixture of all.  These feelings can last a short-time or have a lasting impact and so it is important to deal with those feelings in a healthy way.

Mental health is a vital aspect of our wellbeing. Many people see mental health issues as only serious disorders or health conditions, however things like stress can have a big impact on mental health.  It’s easy to shrug off your own feelings, particularly when juggling work and parental responsibilities, however it’s important to prioritise self-care.

Here are a few ways parties going through a separation or divorce might consider when prioritising their mental health.

 

Ways to Protect Your Mental Health During Separation or Divorce

 

  1. Talk

It can be important to talk things out. Even when your feelings are particularly strong, you should try to communicate them to a trusted confidant.

Endeavour to build healthy relationships and surround yourself with a support team of people with similar values as you, who understand and who can listen to you.

Your support team can include a family member, friend, colleague or a third party counsellor.

 

  1. Acknowledge the pain

Acknowledging the feeling of loss caused by separation can be crucial.

When couples separate due to the death of a partner, there is a defined grieving process of denial, questioning, depression or anger, evaluation, and acceptance.

On the other hand, when a partner is lost due to separation or divorce, many partners find themselves without clear guidance on how to process the loss.

Our review of literature in this area tells us that some couples have found it helpful to follow the ‘five stages of grief’ model:

 

  • Denial

This occurs at the beginning of the separation or divorce process. At this stage, couples find it difficult to accept that the relationship is coming to an end.

It can be normal to have a feeling of denial when you go through such a major life-changing event as separation or divorce. It is a form of coping mechanism people use.

 

  • Questioning

At this stage, you question whether there is a way you could have handled things differently besides going through separation or divorce. At this point, you may wish you could change the past and the events that led to the relationship breakdown.

 

  • Depression or Anger

You may experience anger, anxiety, depression as different negative feelings begin to emerge. At this stage, you may benefit from the added support of loved ones or professionals.

 

  • Evaluation

At this stage, you might begin to weigh the reasons that your relationship didn’t work and this may include taking responsibility for your part in the breakdown.

The factors that led to the breakdown of your relationship may be difficult to process, but evaluating what went wrong and taking ownership where required can help in moving on.

While evaluating, no matter what caused the breakdown of the relationship, it is important to allow yourself to acknowledge the emotions that come with this stage.

 

  • Acceptance

This is the stage where you accept what has happened and take steps to move on or look towards the future.

It is important to remember that every individual is unique and process grief differently. It may be totally normal if you don’t fit into a particular grieving model.

 

  1. Maintain physical health

We all know that physical health is closely connected with mental health. Stress that persists for a long time can cause health problems which can have a tremendous impact on mental health.

It therefore becomes paramount that you maintain or improve your physical health when going through the process of separation or divorce.

It might be of help to partake in stress-reducing physical activities that fit into to your lifestyle such as swimming, walking, jogging, bike riding, or having a good night’s sleep.

 

  1. Stay positive

It can be daunting to have a positive outlook when dealing with an intense life transition such as separation or divorce.

It is crucial however to try to swap the negative feelings and emotions that come along with positive thoughts. Positive emotions have a way of translating to healthy mental wellbeing.

Think of the things that are within your control and then make a plan to improve them, if needed.

Optimistic thinking has been shown to enhance mental and overall health.

 

  1. Take time to review what matters to you

The mental stress of divorce or separation can make you lose yourself. This might be a good time to review what matters to you and a time for reconstructing who you are again.

Find what matters to you – this could be spiritual or religious beliefs, music, art, or other activities or hobbies that bring you joy. Rediscovering purpose and remembering the positives in life promotes good mental health. It can also be a means of coping through separation or divorce.

At a stressful time, it is vital to have a trusted advisor on side to help you through the maze of separation. At Daykin Family Law, we strive to make the separation and divorce process as collaborative and conflict-free as is possible.

 

Daykin Family Law’s Director, Shannon Daykin, is a Brisbane based family lawyer and an Accredited Family Law Specialist with a wealth of experience and expertise in family law.  If you’re considering your options for divorce resolution and would like to keep the matter as stress-free as possible, contact us today for a no obligation consultation to find out if it’s right for you.

If you are concerned about your mental health or wellbeing, we recommend that you contact Beyond Blue on 1300 22 4636.

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.

An Ex-Partner’s Claim To Your Inheritance

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It is quite common that one of the party’s to a marriage or de facto relationship receives an inheritance during the course of the relationship. But conflicts can often arise when the relationship comes to an end and the process of property settlement begins. This conflict is exacerbated when the recipient of the inheritance becomes concerned with the prospect of the ex-partner claiming or retaining the inheritance.

 

An inheritance can be classified as property under the Family Law Act 1975 and for the purpose of asset division, it is dealt with under property settlement.

Property settlement with an inheritance in the mix can be confusing to separating or divorcing couples. The recipient party might believe that the inheritance is intended solely for their benefit and should not be treated as part of the divisible asset pool to be shared with the ex-partner.

The other party on the other hand, might be of the opinion that the inheritance was given for the benefit of both partners or for family use, or due to other reasons, and therefore should form a part of the divisible asset pool at the end of the relationship.

 

Can my ex-partner claim part of my inheritance?

An ex-partner might be able to claim part of an inheritance at the breakdown of the relationship, whether it arises from a marriage or de facto relationship.

The easiest and most practical way to protect an inheritance after separation is by reaching an agreement on how assets including the inheritance would be divided.

The agreement reached can be formalised by applying to the court for a consent order or by entering into a binding financial agreement with lawyers.

Where a separated couple has made attempts to negotiate an agreement and could not finalize on one, they can approach the court to decide if the inheritance would form part of the property pool available for distribution, or would be left solely for the benefit of the beneficiary.

If a recipient party of an inheritance took steps to protect what they received, such as by keeping it separate from the pool of family assets, the court may be in some cases treat the inheritance as separate from the property pool available for distribution.

There is no formula for how the court treats the division of assets including inheritance during property settlement. The court will consider what is just and equitable and evaluate the facts and merits of each individual situation. However, the court may consider the following factors to make the decision:

 

The time the inheritance was received

The court may consider whether the inheritance was received before the relationship began, during the de facto relationship/marriage, or after separation.

Where the inheritance was received before the relationship began, early in the relationship or before commencement of cohabitation, the court may more likely consider it as an initial contribution of the recipient party to the relationship and the inheritance may not be separated from the property pool available for distribution.

The treatment of an inheritance received during the relationship will depend on how the inheritance was used and sometimes the intentions of the benefactor can be relevant.

Where the inheritance is monetary, for example, if the money is spent on paying family expenses or used for the benefit of both parties generally, it may be treated as a financial contribution by the recipient party and more likely to be added to the ”property pool”.

This means that the longer the period between when the inheritance was received and the time of separation, the more likely the courts may be to treat it as part of the pool of assets to be divided.

Usually when an inheritance is received after separation, there is a diminished opportunity for intermingling it with the divisible asset pool. The court can either adopt a “two pools” approach, effectively separating the inheritance from the rest of the property pool, or treat the inheritance as part of the property pool.  In the latter case, when an inheritance is received after separation, a higher percentage contribution may be awarded to the recipient party.

 

Contributions made by the ex-partner to the inheritance

The court may consider if the ex-partner made contributions to the inheritance. Contributions from a former partner can effectively leave the inheritance unsheltered and open to be treated as part of the divisible asset pool. For example, if the inheritance is an old cottage that needs a new roof, if the ex-partner fixes the roof, the cottage may no longer be considered an inheritance solely for the benefit of the recipient party and may be added to the divisible asset pool, and certain findings may be made about contributions of both parties to the inheritance instead of just one party.

The court may also consider the intention of the benefactor on how the inheritance should be used.

If the intention of the benefactor shows clearly that the inheritance is meant for the whole family, the inheritance may be added to the property pool to be divided as part of property settlement.

 

The size of the inheritance

The size or value of an inheritance can affect whether the inheritance is included in the asset pool or not.

The court may consider the size of the inheritance and compare it to the value of the joint asset pool. Where the joint asset pool is substantially smaller than the inheritance, the courts may include the inheritance to ensure a just and equitable property settlement for both parties.

The court may also consider the contribution of the ex-partner and weigh it against the size of the divisible asset pool. If the divisible asset pool shrinks significantly when the inheritance is excluded and the court believes the exclusion will not allow for a just and equitable division, the inheritance may in that case be treated as a part of the property pool for division.

 

Relationship of the ex-partner with the Benefactor/Testator

There are situations where the court will consider the relationship between the benefactor and the ex-partner.

The former partner might have had a good relationship with the benefactor. For example, the benefactor might have lived with the partners, and the ex-partner might have assisted in taking care of the benefactor when ill for example.

While taking note of the intentions of the benefactor in the will, the court may also put the ex-partner’s relationship with the benefactor into consideration and add the inheritance to the pool of assets to be divided.

 

Summary

To sum it all up, in a separation or divorce, an ex-partner might be able to claim that the inheritance of the other party forms part of the property pool available for distribution as part of property settlement.  This depends on a number of factors as mentioned above.

To avoid a costly legal battle after separation, couples in an in-tact relationship can consider entering into a binding agreement detailing how their property (including an inheritance) will be treated in the event that the relationship ends.  Learn more about these agreements here.

Every case is different.  We recommend that you contact us to discuss your specific situation and how best to approach inheritances and your property settlement.

 

Daykin Family Law can guide you through the process of property settlement. Contact us today for an overview of your options and how we can help you reach a positive solution.

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.