Relocating With a Child After Divorce: Your Questions Answered

There are several reasons why you may be thinking about relocating, temporarily or permanently. You may wish to move to another town, move interstate or travel to another country.  There is a common law presumption unless a Court makes another order that both parents of a child who is not 18 have parental responsibility for their child, and therefore there are legal implications that must be considered when relocating with a child, whether you are separated or divorced.  

Today’s blog talks through some of the common questions asked when considering relocating with a child within Australia.  The list is not exhaustive by any means, so we encourage you to speak to us to discuss the matter in detail and find out what’s right for your individual circumstances.

 

What is child relocation?

Child relocation can be described as the changing of a child’s living arrangements to another town, city, state or country. If parents have an order for equal shared parental responsibility, and a change to the child’s living arrangements makes it significantly more difficult for the child to spend time with a parent, then the non-relocating parent’s consent to the relocation or court order permitting the move is needed.

The relevant legislation is s65DAA of the Family Law Act, which explains in detail the process that the court must follow when considering if a child should be spending equal or substantial time with each parent.

 

How do I get permission to move?

If there is a need to relocate, first and foremost it is encouraged that you talk to the other parent and try to come to an amicable agreement.  You may be able to compromise on the other parent spending longer periods of time during school holidays or longer visits through the year, or your former partner may agree to move to where you are hoping to relocate to.  

Attending dispute resolution can often help in reaching an agreement about the relocation.  If you are able to resolve the issue, it is often best to enter into a written parenting plan or apply to the Family Court for a consent order to formalise the agreement.

 

How do I make plans for contact between my child and the other parent?

It is important to set out the parameters of contact or “time and communications” with the other parent on the type of contact (for example video calls, telephone calls and physical contact), how frequent communications or visits/time will be, how costs of travel will be split, if and how the child can travel, accompanied or otherwise.  Once you have agreed on the frequency and type of communications, this can be recorded in writing, preferably in the form of a parenting consent order.

 

What if I can’t reach an agreement with the other parent?  

If you have tried and failed to reach an agreement, you must demonstrate that you have attempted family dispute resolution (with the exception of family violence and other limited exceptions) before you can apply to the Federal Circuit Court for an order that permits relocation.

Obtaining a relocation order can be difficult, expensive and three may be delays.  The court will always consider the best interests of the child before any other factors, as this is the paramount consideration for the court.

 

How do I apply to the court for a relocation order?

If you are applying for relocation, you will need to include in your application a demonstration of an attempt at Family Dispute Resolution, as well as detailed information of your plans for relocation.  For example, you may need to include information on;

  • where you are going
  • your reasons for the relocation
  • the housing situation
  • plans for school and before/after school care
  • the support system in the new location
  • history of your relationship with your former partner
  • the relationship between the child and each parent
  • your proposals for the child’s time and communication with each parent after any relocation

 

What if the child is relocated without a court order?

If a parent moves without consent of the other parent or a court order, the other parent may be able to apply to the court for an order that the child or children be returned until an outcome has been determined by the court in certain circumstances.  If a court order is already in place, the other parent may be able to file a contravention application to seek that a party who breaches a court order be punished.

If the other parent takes your child without discussing it with you,  you can apply for a Recovery Order with the court, which enable police officers to take action to find, recover and return a child to you, as well as prohibiting that person from removing or taking possession of the child.

 

Final Thoughts…

As with any major decision to be made as separated parents, consideration should always be given to where family dispute resolution is appropriate.  This is a means to try and resolve parenting issues without litigation if possible, with the help of a trained and independent professional.

Daykin Family Law have extensive experience in mediating outcomes for clients which can avoid the court process and provide you with certainty.  Talk to us today about how we can assist you.

Shannon Daykin is an Accredited Family Law Specialist with extensive experience in helping with family law matters and dispute resolution. If you are struggling to agree on a relocation arrangement, contact Daykin Family Law today to let us devise a clear plan for you.

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.

 

Calculating Child Support

Child support in Australia is calculated using a complex formula that takes into consideration the combined income of both parents, the number of children they have and the ages of the children. Even couples going through the most amicable separation or divorce can hit a bottleneck when issues of calculating child support arise.

How is child support calculated in Australia?

The concept of child support is based on the principle that parents have the obligation to provide monetary assistance for their children. This obligation continues after the breakdown of a relationship. To administer child support, parents can agree to self manage, write a child support agreement or apply to the Department of Human Services (DHS) for a child support assessment.

The information required by DHS to calculate child support includes:

  1. The taxable income of each parent
  2. The percentage of nights that each parent has the child with them
  3. The number of children and ages
  4. Information about other dependents that each parent has

Self-management of child support

Parents who choose to self-manage their child support make decisions on how much child support to pay, when to pay and how they want to pay it. If you choose to self-manage your child support, you do not need to apply for an assessment. When you and your partner self manage, you are responsible for calculating your child support amount. It is important that you keep records of child support payments if you choose this option.

You can use an online calculator to get an estimate of your child support amount here.

Child support agreement

Australian law allows parents to make a child support agreement where both parents decide on the amount of child support to be paid. There are two types of child support agreement: binding child support agreement and limited child support agreement.

To receive child support under a binding child support agreement, parents do not need to have a child support assessment in place and the child support amount agreed upon does not have to be the same as the amount that will be payable under a child support assessment. Parents who choose to make a binding child support agreement are required to seek independent legal advice for the agreement to be valid.

On the other hand, parents who make a limited child support agreement must have a child support assessment in place and the payments set out in the agreement must be equal to or more than the annual rate in the assessment. Independent legal advice is not required but is advisable for the most appropriate outcomes for your circumstance.

If you and your partner choose to make a child support agreement, it must meet the requirements of the law. For more details on the legal requirements of each type of child support agreement, read our previous article on child support here.

Child support assessment

While it is sometimes easier for parents to decide how much child support is to be paid by having a child support agreement in place, it does not always work out that way. Parents have the option of applying to the Department of Human Services for a child support assessment.

To be eligible for a child support assessment, you are required to be the legal parent or non-parent carer of the child and to meet residency rules. To determine the child support amount, parents are required to provide detailed financial information and care details along with the application for assessment.  The amount of child support that you pay or receive may affect your Family Tax Benefit.

You can apply for child support assessment online. To manage your online application, you have the option of setting up an online child support self service account.

How is child support calculated?

To determine the child support amount, the DHS uses a child support assessment formula which examines the situation of both parents. There are six different formulas used for the child support assessment.  These six formulas are a variation of one basic formula.

In most cases, the annual rate of child support will be assessed using formula one, the basic formula used for single child support assessments where only the parents provide care for the children and neither parent has another child support assessment case.

To determine the annual rate of child support that will be paid under formula one, these 8 steps are followed:

  • Step 1: The child support income of each parent is identified
  • Step 2: The combined child support income of each parent is calculated
  • Step 3: Each parent’s income percentage is calculated
  • Step 4: Each parent’s percentage of care is determined
  • Step 5: Cost percentage is determined
  • Step 6: Each parent’s child support percentage is calculated
  • Step 7: The costs of the child are determined by the parent’s income, number of children and their ages
  • Step 8: The annual rate of child support for the child is determined

There are other types of formulas used to determine the annual rate of child support, including in circumstances where a non-parent carer is involved.

Who pays child support?

To determine the parent who pays child support, each parent’s percentage of care of the child is weighed in relation to the share of the parent’s combined income.

Other forms of support

Child support payment is different from other forms of financial support such as spousal maintenance or property settlement. Spousal maintenance is a payment given from one spouse to another as financial support and property settlement is the division of assets and liabilities between a separated couple, whether married or de facto.

Daykin Family Law can guide you through the process of calculating your child support. 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) 3338 5645 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.

Proving separation whilst living together

In Australia, couples need to be separated for 12 months before registering for an official divorce, meaning to apply for a divorce in the Court. Whilst separation usually comes in the form of living apart, this is not always a financially realistic option. We’ve delved into the process of proving separation whilst living together and discussed some of the reasons separated couples may find it beneficial to remain under one roof.

Reasons for remaining within the same household following separation

Separation is a challenging experience at the best of times. When you then consider the uncertain economic climate and a family’s individual financial situation, the prospect of one or both parties moving out of the family home might be a less-than-ideal, or even impossible, option.

In this instance, you and your ex-partner may both decide it beneficial to separate whilst remaining under the same roof. Especially when you consider the additional costs associated with moving home; hiring removalists, paying the new home deposit or required bond amount, and purchasing new home furniture and electronics.

Another reason to remain in your shared home may be the wellbeing and happiness of your children. Whilst there are many tools and resources available to help both parents and children adapt to life after separation, it can be beneficial, in individual cases, that a child’s routine receives minimal disruption in the initial stages of separation. Living across two households can be of particular disruption and, as such, you may decide it best to remain in the same household as your ex-partner whilst you understand the next best step forward for all parties involved, provided of course it is safe to do so.

It is important that both you and your ex-partner are on the same page about the reasons for remaining within the same household, as this reasoning will be considered by the Courts in deciding whether you have adequately satisfied the requirements of the mandatory separation period.

Proving separation despite remaining under one roof

There are a number of ways that ex-partners can prove separation, despite still living together:

  1. Separate financials – this can extend to, for example, parties having separate bank accounts. It could also include efforts to remove each other as beneficiaries of any superannuation or life insurance. If you receive government payments (eg. Centrelink), the Court may need to be informed about any Government departments you have advised about the separation and any correspondence received from such departments about the separation
  2. Separate sleeping arrangements – this can be evidenced through a change in sleeping arrangements, such as a party moving into a separate room
  3. Social proof of separation – there can be evidence that your friends, family and other third parties (such as your child’s school) are aware of the separation. This may include having informed your family and friends, verbally or via written communication, of your separation, or requesting from the school that both parents receive notifications individually
  4. Decline in performing household duties for each other – this could include a party no longer cooking meals or washing clothes for the other spouse, or other household duties being performed during the marriage are no longer performed (or performed less) after separation

A party should also inform the Court why the parties continued to live in the same home and any intent of changing the situation, including living arrangements for any child of the marriage under the same roof. 

If you are unable to satisfactorily prove separation to the Court, your divorce application may proceed to a hearing, which can be a substantial additional expense.

Utilising a legal professional

Whether you are considering separation, are currently living separate but under the same roof as your ex-partner, or have undergone the 12 month separation period and are ready to file for divorce, we can assist you in understanding what evidence you will need to collate and how best to approach any application.

Equipped with this understanding, you can potentially eliminate the financial burden of one or both parties removing themselves from the family home without jeopardising a smooth and timely divorce process, if this is what both parties wish to achieve.

Keep in mind though that divorce proceedings do not finalise any parenting or property/financial matters arising from the breakdown of a marriage. Also, upon a divorce order taking effect, the parties then have 12 months to file in the Court for property settlement and/or spousal maintenance unless the Court grants leave to proceed out of time.  Independent legal advice should be sought regarding these matters to ensure your interests are protected before applying for a divorce.

For specific, personalised advice, contact Shannon Daykin of Daykin Family Law for a consultation.

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) 3338 5645 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.

Calculating spousal maintenance

Understanding your obligation to pay or right to receive spousal support

It is not uncommon for couples to mutually support each other financially over the course of a de facto relationship or marriage. What you may not realise is that ex-partners may also be entitled to ongoing spousal support, with others obligated to give such support. Read on to discover the basics of spousal maintenance, how you calculate payments and how it differs from other family law financial agreements.

Spousal maintenance, spousal support and alimony payments (as they call it in the USA)

Spousal maintenance is a payment given from one spouse to another as a means of providing financial support. It may be a periodic or a lump sum payment, as some examples. Spousal maintenance (for married parties) or maintenance (for former de facto couples) is usually paid due to a range of factors, such as care of children of the relationship under 18 years, an illness or other health condition or other relevant factors.

This support can be ordered by the Court if it is not agreed, with varying lengths of time for such payments to be made in the case of periodic spousal maintenance/maintenance.

Spousal maintenance can often be confused with alimony, an American term not used within the Australian legal jurisdiction. However, this is essentially equivalent to spousal maintenance, maintenance or spousal support, as some call it.

Calculating spousal maintenance

While there are many services online that will claim to calculate how much you may be entitled to, in truth, there are a number of factors involved making it difficult for any online service to be able to come to an accurate conclusion.

However, the starting point is looking at a party’s need. This can be done in reference to a party’s income less their reasonable living expenses. The second step then is to assess the other party’s capacity to pay spousal maintenance, taking into account their income and reasonable living expenses among other things, and ascertaining whether there is a surplus.

Applying for spousal maintenance

A party seeking to receive an order for spousal maintenance must apply within 12 months of a divorce order taking effect, or within 24 months of the end of a de facto relationship.  Applications can be made to the Court outside of these time limits, but it can be a costly process seeking the Court’s permission to proceed out of time, and success is not guaranteed.

Spousal maintenance is not an automatic part of the separation or divorce process. If an agreement cannot be reached, the party that is requesting assistance must submit an application and then establish that they have a need for spousal maintenance.

Some of the factors that are considered by the courts, briefly referred to earlier, are:

  • The care of children under the age of 18 years – the parent/caregiver may be entitled to additional support for the spouse themselves
  • Any existing financial support agreement between parties which extends beyond the relationship’s termination
  • Age and health – if one party is significantly older than the other or has a medical condition
  • A party’s inability to obtain employment and/or access to reasonable living standards
  • A party’s access to other financial support, such as the pension or other government benefits
  • The income, additional property, and financial resources of the two parties – is one party significantly advantaged over the other?
  • The factors relevant to the relationship

 While there is no limit to what the courts may consider in terms of a spousal maintenance application, Australia is a ‘no-fault’ jurisdiction. As such, the Courts will not factor in who ended the relationship and why.

The Court’s involvement

A Court can make orders that a party must pay spousal maintenance to the other party, with the Court most frequently ordering periodic or lump sum payments. Spousal maintenance orders can also include the transfer of property.

On a successful application, the Court will also stipulate any relevant terms and conditions, including how long the payments will last, particularly when made as part of final orders.

Other forms of support/payments

Spousal maintenance is different and separate to other forms of financial support or agreements, such as child support or property settlement. Child support payments are made in support of the child/children. Property settlement payments can be made as part of dividing assets as part of an overall property settlement following the breakdown of a marriage or de facto relationship.

Daykin Family Law can guide you through the process of applying for or contesting an application for spousal maintenance. 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) 3338 5645 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.

De Facto Couple Moving House

What does a de facto relationship mean in legal terms?

Common misconceptions about de facto relationships and the things you should be aware of before entering a committed relationship

There are many misconceptions surrounding de facto relationships and a large portion of individuals and couples are not aware of the relevant legal implications and obligations. After handling countless de facto cases in which parties were simply unaware of the legal realities, we’ve summarised what a de facto relationship means in legal terms, and how that legal status will come into play during a relationship breakdown.

Common misconceptions

Most people believe that family law applies only to legally married partnerships when in reality de facto couples face almost identical legal rights and responsibilities as their married counterparts.  In the case of property settlement, agreements regarding property matters arising from the breakdown of a de facto relationship can be negotiated and recorded.  Separated de facto parties can also make an application to the Family Law Courts for property adjustment orders after a de facto relationship has ended.

The legal definition

Legally, a de facto relationship exists when 1) you are not legally married, 2) you are not related and 3) there is a relationship where you are living together on what is considered a ‘genuine domestic basis’. The genuineness of your domestic relationship is determined by reference to numerous factors, including:

  the relationship duration

  whether you lived together

  whether the relationship was sexual in nature

  the degree in which finances were shared

  ownership of any shared property

  the existence of a mutual commitment

  the shared care and support of children.

A court will consider the individual and unique circumstances of a relationship in coming to a finding, and your relationship may be found to be de facto even if you don’t meet all of the above-listed criteria. For example, while living arrangements are a major factor in determining a relationship status, there have been instances in which couples who lived apart, perhaps due to work commitments, were still found to be in a de facto relationship.  There have also been other cases where a de facto relationship was found by the court to exist whilst a person was married to another person.

Maintenance

Separated de facto parties can also seek, and be liable for, maintenance orders if a party is in need of maintenance and the other party has the capacity to meet such obligations.  With married couples, this is referred to as ‘spousal maintenance’.  The concept of spousal maintenance will be covered in-depth within our June blog post (keep an eye out!).

When children are involved

All children are protected under the Family Law Act, regardless of the nature of their parent’s relationship. The Act outlines parental responsibilities and applies to children of a marital or de facto relationship.

Other things to note

The de facto status of a same-sex relationship is defined using the same legal criteria as that of heterosexual couples. Same-sex couples defined by the court as de facto are provided with the same legal rights and have the same legal rights and obligations as same-sex de facto couples.

As mentioned above, an individual can be in several de facto relationships simultaneously and a married individual can be found to also be within a de facto relationship with someone other than their marital spouse.

Protecting yourself before or during a de facto relationship

Many know about ‘prenup’ agreements and how they can protect people entering a marriage. 

Those entering a de facto relationship can also enter into similar agreements regarding how property will be dealt with, among other things, after the breakdown of a de facto relationship.  Other such agreements can be made during a de facto relationship, and can be used after a de facto relationship has ended to record a property settlement and deal with maintenance.  These agreements are known as Binding Financial Agreements.

Need help navigating the breakdown of a de facto relationship? Shannon Daykin, director of Daykin Family Law, can assist in achieving a positive and quick solution. Contact Shannon today.


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) 3338 5645 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.

Parenting Arrangements during COVID-19

Parenting Arrangements during COVID-19

Navigating government restrictions, school shutdowns, and illness during the coronavirus pandemic

Amidst the many drastic changes COVID-19 is forcing upon our everyday lives, the Family Law Courts have recognised the difficulties some families now face in adhering to their existing parenting arrangements or Orders. This has left many parents unsure of their rights and obligations throughout this pandemic.

As always, the primary concern of parents should be that of a child’s health and wellbeing. We’ve outlined the recommendations made by the Family Court’s Chief Justice and summarised our own guidance in navigating changing family circumstances.

Where restrictions contradict specifications in your parenting arrangement

In some instances, an established agreement or Order of the Court may include obligations on a parent which directly contradict the COVID-19 restrictions set out by the state and federal governments.

An example could include an arrangement in which the drop off/pick up location is specified as the child’s school, many of which are currently closed across the country.

The closure of schools and parents working from home

With many schools and after-hours care centres closed, families are experiencing a drastic change in routine and family dynamic. If one or both parents are able/forced to work from home, we suggest sitting down with both your former partner and your child/ren (separately if needed) in order to create a new family routine which allows for the continuance of both work commitments and schooling commitments, as well as valuable downtime between parent and child/ren.

If one or both parents have been deemed ‘essential workers’ and are required to leave the home for work, alternative arrangements may need to be made, perhaps with the assistance of friends and family.  This is to ensure both you and your former partner are able to fulfil work obligations whilst children are unable to physically attend school.

Independent legal advice should be sought about the best way to record and document any agreement reached to deal with the changes arising from the pandemic relevant to your parenting arrangements.

When a parent falls ill

At some point, members of either household may find themselves having contracted the virus, or fearful of having contracted the virus due to close proximity with someone who has tested positive or recently been overseas.  This will present challenges when children are moving between homes.

Furthermore, a parent may be concerned about their child/ren living within a household in which social distancing and biosafety recommendations are not being adhered to.

If you are concerned about your child’s health or safety, you should consider first raising any concerns you have with the other parent and seek to agree on a resolution that meets the child/ren’s needs and best promotes their wellbeing.  If this is not practical or agreement cannot be reached between the parents, you should consider seeking independent legal advice regarding your specific situation as there are a range of options to assist in resolves issues like this.

Potential solutions

We have some guidance from the Courts, with the Statement from the Honourable Will Alstergren regarding Parenting Orders and COVID-19 released recently.  This provides useful information for families during this difficult period.

If the arrangements you have in place with the other parent are simply unworkable in light of the pandemic then, as a first step, consider reaching an agreement with the other parent to modify any arrangements where necessary. In doing so, it’s important to remember that whilst the specifics of existing arrangements and Orders may not be logistically possible, the purpose and spirit of the order should remain unchanged and the primary priority should always be the health and safety of the child/ren involved.

If you are able to come to a mutually agreed solution, be sure to make the agreement in writing, whether over a formal letter, email or text. With the assistance of a Family Law specialist, any variations to parenting arrangements can be recorded in a way that will least likely cause issues later.  If seeking to vary any orders of the Court, we recommend that you obtain advice about your specific situation.

If you are unable to come to a mutually agreeable solution, or contact with your former partner is not possible, you should consider seeking the assistance of a Family Law specialist or Family Mediation specialist.

Finding a new norm

Amidst the broader changes caused by the pandemic, it can be difficult for many families to maintain routine and normalcy.  This can be particularly difficult for children of separated parents to keep to the routine they had in place with a parent previously when the restrictions make it impossible for them to continue.

The use of video calling and social media, facilitated by a parent as appropriate, are excellent tools for allowing a child to keep in contact with a parent whom they can no longer spend time with in person. Such activities can be built into a larger daily routine or schedule which gives back some of the structure lost without the routine of school and other activities (such as after-school sport).

By using these other methods of communication more frequently, this may assist in ensuring the bond and connection between a child and parent continues during any period where face-to-face contact cannot occur.

Reach out

If you are still unsure about your parental rights and responsibilities, or the effect that COVID-19 may have on your existing parenting arrangement or orders, contact us to discuss your situation and how best to promote your child’s best interests whilst ensuring that you continue to meet your obligations.

 

Shannon Daykin is an Accredited Family Law Specialist and Director of Daykin Family Law, offering telephone and video conferencing consultations throughout the COVID-19 pandemic, and in-person appointments where necessary.

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) 3338 5645 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.

Isolation during COVID-19

Isolation during COVID-19

Being stuck under one roof for an extended period of time can bring great stress to couples and families. This can be particularly intense for separated couples living under the same roof with their family.

Earlier this week, the UK Prime Minister announced that the country would enter a mandatory lock-down period, in the hope of slowing the spread of COVID-19 (Coronavirus). When we observe the trends across Italy, the UK and Australia, it’s easy to see that Australia could be headed down a delayed, but nonetheless identical, path.

Being stuck at home can make it seem like the walls are closing in. And this environment, not to mention the uncertain and scary times facing the world, can add stress on a household which may already be stressed due to family breakdown. Whether you’re a couple working from home or a family unable to attend school, there will naturally be extra tension within the home environment for the foreseeable future.

Daykin Family Law wants to help guide you through this turbulent time with some tangible ideas and methods for resolving disputes and maintaining a safe and healthy household.

Keep communicating

Assumptions and subtext are the perfect recipe for miscommunication and arguments to occur. Speak honestly with your partner and family about how you’re feeling and encourage them to do the same. Remember that fear can easily be expressed as anger or abruptness. Recognise this within yourself and others, and treat others with patience and understanding.

Remember the circumstances

Keep in mind that there could be a large collection of factors contributing to household tension. Along with being stuck at home, families may be facing financial problems, caused by loss of employment or reduced shifts. There is also the emotional impact of being isolated from our extended family, particularly if they are higher risk for contracting coronavirus.

During these particularly troublesome times, consider hitting the pause button on existing conflicts and focus on what matters here and now, remembering that when things get heated, you may not have the option to walk out the door.  This is highly relevant for those that remain separated under the same roof.

Establish a routine

Households of all compositions may benefit from writing up an agreed upon routine. Whether it’s just you and your partner both working from home, a family with children or a share house set up, routine and predictability can help people to feel safe and in control.

If your children are home from school, consider establishing a routine in which both structured learning and switch off times are observed. If you’re also still working, consider alternating with your partner (or former partner if you live in the same house) between work and activities with the children, as well as time for the children to be alone in their room or play space.

Just because you’re now working from home, that doesn’t mean you should feel obliged to be consistently ‘logged on’.  Make it clear to your team when you intend to start and finish each day, and then give your family your full attention outside work hours.

Ask for help

Remember the show ‘are you smarter than a 5th grader?’.

Helping your kids with their study might find you feeling overwhelmed and uncertain.  You aren’t alone!  Remember that curriculums are intended to be taught by education professionals, and this may be all new to you having to facilitate your child’s learning to this extent.

If you’re feeling truly stuck with a particular concept or assignment, don’t be afraid to reach out for help, either to your child’s usual teacher or another professional educator you know, or another parent.

Alone zones

Kids and adults alike need time with loved ones, but they also need quiet time in their own space.

Consider creating specific areas in which both you, your partner (or former partner if you are still living together) and your kids can enjoy time on their own, perhaps doing a quiet activity or focusing on a particular task.

Remain calm

Kids can be highly receptive to the moods and attitudes of adults.  If you’re panicking, your kids may pick up on this.  There are many online resources about handling the current coronavirus pandemic, which can help you answer any questions that your kids may have about it honestly and calmly. Feeling empowered by information and reassured by your calm demeanour will likely be of benefit to your children and your household.

Most importantly, find pockets of enjoyable times when you can.  Find activities outside of work and school hours which you can do together with your children.  While going to a cafe or the local playground may be off limits, don’t underestimate the fun of the kitchen or backyard area.

Even coming together with your children to tackle a project can provide a feeling of togetherness.

Shannon Daykin is an Accredited Family Law Specialist with extensive experience in helping many successfully navigate their separation. If you are struggling to deal with separation amidst the uncertainty created by the coronavirus, contact Daykin Family Law today to let us devise for you a clear plan to assist you during this difficult time.


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) 3338 5645 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.

 

How long is the divorce process?

The procedures and requirements set out by the family law courts in Australia

As with most legal processes, divorce in Australia requires you to follow strict procedures and timelines. Whilst you may separate from your partner at any time, divorce is a lengthier process which will require the court’s involvement.

Fortunately, Australian divorce law is a fairly simplified process when compared to the legalities of other countries. However, there are still procedures which must be adhered to. In this blog, we discuss the timeline affiliated with divorce in Australia and provide tips for the most streamlined and time-efficient divorce experience.

The timeline

Australia has a ‘no-fault’ jurisdiction, meaning that a court does not consider which partner was at fault in the marriage breakdown. The only ground for divorce is the irretrievable breakdown of the relationship, which is demonstrated by 12 months of separation. Even so, you should expect the divorce process to take a minimum of four months from when you file for divorce and when the divorce order is issued by the court.

A divorce order will arrive one month and one day after a successful divorce hearing. For example, if your divorce hearing was on June 1st, your divorce order would issue on July 2nd.

You should not make plans to remarry until after you have received the divorce order from the court. Remarrying prior to receiving this order is an offence in Queensland known as bigamy, punishable by imprisonment, and your new marriage can be declared void.

Before filing for divorce

It’s important to note that you must be separated for 12 months prior to filing for divorce. Australian Family Law recognises ‘separation under the one roof’, in which you and your partner separate but remain living together. In this instance, you will need to prove that you were separated during this time. A Family Law Specialist can assist in this process.

If you separate and come back together for a period of fewer than three months, you must simply prove that you were separated for a total of 12 months. For example, if you separated on 1 January 2020, reconciled on 1 June 2020, but then separated again on August 1st 2020, then you would be eligible to file for divorce on 2 March 2021; a total of 12 months separated. If you separate and come back together for a period longer than three months, the time resets.

The application process

Following the 12-month separation period, you can file for divorce yourself or jointly with your spouse. If you apply yourself, not jointly, then your spouse will need to be served with the divorce court documents. This can take time, particularly if you are unaware of your spouse’s location.

A joint application is easier as neither party have to be served with the court documents. If you and your partner are in agreement regarding the divorce and are still in contact, filing a joint application can assist in streamlining the divorce process as you will not have to wait for your spouse to be served

In setting a date for the court hearing, the court will consider whether it was an individual or joint application and therefore whether they need to allow time for one party to be served with court documents.

Divorce documents can be served via the post, through a legal service or in person. You yourself cannot serve your spouse in person, but any other person over the age of 18 can do so. This may be a friend or family member, if not a professional process server.

Employing a professional process server may reduce the time required to fulfil this step and they will usually complete an Affidavit of Service for filing, however, do consider that there will be fees involved in this process.

Married less than two years?

Keep in mind, if you have been married for less than two years, there are additional steps that precede filing for a divorce order. You will need to obtain a Counselling Certificate, which proves to the court that you have received professional counselling and considered reconciliation, or only one party attended such counselling and the was invited to attend but did not.

Engaging an Accredited Family Law Specialist will ensure that all the necessary procedures are followed correctly and accurately in the lead up to your divorce hearing, lowering the possibilities of the court adjourning the hearing to a later date which can delay the divorce order being made.

Ensure your divorce is as streamlined as possible – enlist the professionals. Shannon Daykin, Daykin Family Law’s Director, is an Accredited Family Law Specialist, with a wealth of experience and expertise in property settlement, parenting agreements and all other aspects of family law.


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) 3338 5645 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 and dispute resolutions.

Parenting arrangements: what if we don’t agree?

Successful co-parenting with your former partner can be tricky to achieve and may involve a period of negotiation and compromise before finding an agreeable solution. In some cases, you may not achieve a mutually agreeable solution on your own and in this instance, there are several options available to protect what matters most; the wellbeing of your shared child or children.

It is common during separation and divorce for the separating parties to harbour negative emotions towards each other. These feelings can make agreeing on terms of the separation, particularly the care of your shared child/ren, difficult or sometimes impossible.

What is a parenting plan?

A parenting plan is a written agreement which outlines how you and your former partner will co-parent your shared child/ren. It can detail a range of things, such as where the child/ren will live, where they will go to school, which parent will provide care and when, what will happen on special holidays and birthdays and how a child will communicate with their parents. The plan can also detail agreed-upon parenting styles, a particular faith/religion that will be taught at home and any required healthcare plan specific to the child/ren.

A mutually agreed-upon plan can provide structure and routine to a child/ren’s life during what can be a volatile, emotional and distressing time.

Remember, circumstances change and so to can the plan. As children age, their needs and preferences change, so keep communication with your former partner open so that the plan can be revised in future. If needed, set a date to review the plan with your partner so that you can both feel assured that it is always the best solution for your child/ren.

The Family Courts

The Family Law Courts can hand down an order which dictates what parenting arrangements will be in place for a child until they turn 18. While for some, enlisting the Court’s help is the only option for achieving a resolution, it should only be considered a final resort. Receiving a decision from the Court is not only a costly exercise which can be drawn out over a long period of time, but the final order can also feel impersonal for your family, as it is a legal directive, rather than an arrangement that your family have devised together.  You give over control to the Court, which is unsuitable for many families.

Before turning to the Courts, there are several support resources available to families.

Before going to court

A family report, prepared by an unbiased third-party professional, assesses the family dynamics, a child/ren’s wishes and their needs to create a recommended parenting arrangement. This report can also be submitted as evidence to a Court if the situation demands a Court decision.

A family dispute resolution mediator can also act as an unbiased voice of reason between yourself and your former partner. Unlike the Court, a mediator will work with all affected parties to determine the best solution, rather than handing down a legal directive.

Utilising a mediation professional is also an opportunity for both parents to discuss their wishes and concerns regarding their child/ren’s relationship with their other parent and the future, without needing to converse directly with their former partner, which could potentially start an emotionally-fuelled argument.

The most important thing

No matter which solution you turn to, it is important to remember that your main concern should always be the health and happiness of your child/ren. During a separation or divorce, when emotions are running high, parents can often fall into the trap of letting their negative emotions towards their former partner restrict the possibility of reaching a solution which is best suited for the child/ren.

It is important that children feel loved, supported and safe as the family transitions after separation.  Never argue with or speak negatively of your former partner in front of the child/ren. While you should keep communication with your child/ren open and encourage them to discuss their feelings openly with you, never ask them to pick sides or make a final decision regarding their living arrangements.

Whilst family and friends may give you advice and mean well, it should not replace the sound and pragmatic advice of a family law specialist.   The danger with this is that the legal system is complex and how you conduct yourself is important.  A wrong turn with how to handle certain important situations can be disastrous, not only for the objectives you want to achieve but could also have a negative impact on your children.  We guide clients through post-separation issues by being upfront about the things that might cause unnecessary dispute.  Similarly, we provide clear advice when needed on when a firm approach is needed to protect what matters most.

Shannon Daykin, Daykin Family Law’s Director, is an Accredited Family Law Specialist, with a wealth of experience and expertise in family law and parenting agreements. Contact us today to discuss all your options in order to achieve a positive solution as efficiently as possible.


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) 3338 5645 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.

Daykin Family Law business valuation

Getting a business valuation in property settlement

Property settlement can be a substantial part of separation and divorce. Whilst valuing tangible property such as homes and cars is relatively straightforward, valuing a business is usually more complex. One of the first questions we are asked by self-employed clients is what impact a separation may have on their business.  This is a valid worry – you’ve spent years building a business, only to find suddenly your livelihood may be at risk or operations may be impacted by a separation. We’ll take a look at business valuations in a property settlement in this article, outlining some of the key considerations and next steps.

 

Reaching an agreement

Whether the business in question is your former partner’s, yours or jointly operated by you both, it’s important that you and your former partner seek to agree on a value together and ascertain any issues in dispute that are a roadblock to an agreement. The party who wants to keep the business could undervalue the business or claim that they alone create the value of the business; particularly relevant when an individual’s specific expertise or skill set is the main offering to customers, for example, an interior designer. 

We often recommend calling upon a trusted accountant, who is aware of the business position and its history, potential tax consequences of any proposed settlement and issues to be considered for asset protection.  A familiar third party can often play a positive role in achieving a settlement sooner and potentially avoid the cost of an independent valuation in some cases.

You can engage an expert, third-party forensic account with experience in business valuation within family law cases including those in court proceedings. Any professional involved in the valuation process must be willing and able to present their professional findings in court. How you engage this expert is important.  If not engaged properly, the evidence from the expert may be subject to challenge later on if an agreement can’t be reached.

Generally speaking, one valuer will provide a final ruling on the business’ value. You may request to use a separate valuer to that of your partner, but you must present a strong argument as to why the court should accept this evidence.

Engaging a secondary valuer can be costly and time-consuming, so the best outcome would be an agreed approach between both parties. Ordinarily, the valuation cost is shared equally between parties unless one party requests additional information from the valuer which increases the cost significantly. In this instance, the two parties should negotiate the allocation of cost.

Methods of valuation

The valuer’s report will include the final valuation and how they arrived at that valuation. Businesses can be valued using a range of different methods and each method examines the business from a slightly varying perspective. A particular approach may be the most appropriate to an individual case, depending on the business set up or the industry 

A fair market valuation assumes a scenario in which there is a willing buyer, a willing seller and neither party is under compulsion to buy or sell. If we imagine a family business in which you have a 20% stake and your parents hold the remaining 80%, your parents have the majority vote in decisions regarding the business. A fair market valuation assumes a willing buyer but in reality, finding an investor for a business in which your parents have full control in that scenario is unlikely.  It may be that your share value is discounted. This is just one example of issues that business valuations traverse.

Any form of valuation will consider the business profits, assets and any other relevant information required to provide an accurate and unbiased final valuation. Providing any and all the relevant documentation quickly and in an organised fashion allows for a smooth and therefore cost-effective process in which an accurate result can be obtained.

Providing relevant information

In providing information, do not disregard loan accounts in which you or your former partner may owe money to the business, or the business may owe money to you or your former partner.  A full analysis of realisation and other taxation costs may be crucial to the valuation and should not be overlooked. Mistakes can be made when overlooking such issues, which can have a marked impact on any settlement to a party’s detriment if not fully identified ahead of time. 

Business valuations are an important part of the property settlement process, but just one part of a larger picture.  When you’re dealing with the stress of a relationship breakdown, you need reassurance that you’ve got an experienced legal professional in your corner.  We take a no-nonsense and pragmatic approach to advising our clients, guiding them on the path that will best achieve their goals, protect their interests and allow them to get on with the important job of running their business or home or whatever else should be taking priority.

We work with a range of top-level forensic accountants to assist our clients in identifying issues and helping them reach an early resolution to property settlement wherever possible.

Contact us today for an initial consultation with Shannon Daykin, Daykin Family Law’s Director, an Accredited Family Law Specialist with a wealth of experience and expertise in family law and complex property settlement.  We’ll discuss your business, how to protect your interests and how we can assist in resolving your property settlement as efficiently as possible.


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) 3338 5645 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.