Category

Family Law

Business Ownership and Divorce

By | Commercial, Family Law

When two people decide a relationship has reached its end and it’s time to separate or divorce, they’re both keen to achieve a clean break.

Unfortunately, unpicking the ties of a relationship can be a complicated and time-consuming process, particularly where a business owned and run by either one or both parties to the former relationship is involved.

It’s this scenario we’ll provide some more information on here. This is because a business – whether you operate it as a sole trader, in a partnership, or through a company or trust structure – is considered as property for the purposes of the Family Law Act 1975. This means its assets and value can be considered by the court if it is asked to make a division of property assets from the relationship in a final settlement.

For this reason it’s essential you seek legal advice from specialists in this part of the law. At Arbon Legal Group, determining how your business will be affected by a divorce is one of our areas of expertise.

The need for full and frank disclosure

It’s important to understand that should business assets become part of a property settlement after divorce, there is an obligation on each ex-partner to provide full and frank disclosure of all business records, financial statements, bank records, BAS and tax documentation to the other side. This is an ongoing obligation for however long the settlement process takes.

Such disclosure takes a lot of time, time you may not have, and so you may require the assistance of experts such as experienced legal representatives, a financial adviser or accountant, and a valuer of business assets.

Divorce and the type of business you own

The type of business you run affects how the asset will be treated in a property settlement after divorce. The value of a small business operated as a sole trader, or which both ex-spouses ran as a partnership, is different to a business that boasts a corporate and/or trust structure, with larger assets and values such as goodwill.

In most sole trader set-ups, such as a tradesperson without employees, a court will generally find that the spouse whose skills and expertise are the reason for the existence of the enterprise should retain it. In this situation where one ex-partner retains their interest in the business, it needs to be attributed a value, which may be a modest amount when there are no employees or extensive assets.

If the business does have a number of employees plus other value to be found in other assets and goodwill, a proper business valuation process should be undertaken involving examination of the business’ financial records and accounts so that it can be considered as part of a property settlement after divorce.

If a couple ran a business in partnership, the situation is similar to that of the sole trader in that a value will need to be determined for the business if one partner wishes to retain the business post-divorce. Again, formal valuation will be necessary if the business is more established in terms of employees, assets and goodwill.

Once a value is established, the partner who wishes to continue with the business may pay out the ex-spouse their share of the business as part of a property settlement.

The party to the divorce who retains the business maintains what the court describes as a ‘continuing financial resource’. This resource will be taken into account during a property settlement when the court considers the future needs of each party when dividing assets.

In some cases, ex-spouses continue working in the business despite their break-up. In this event it’s suggested they negotiate a financial agreement, sanctioned under the Family Law Act, to deal with the possibility that they later wish to go their separate ways and need to sell their share of the business, or the business entirely.

In situations where you are in partnership with third parties, or own a business under a company or trust structure, seek expert legal advice as the impact of divorce becomes more complicated.

The problem of valuation

One of the common sticking points when it comes to a property settlement as a result of divorce is reaching a mutually agreeable position on the value of the business.

Where each party cannot agree on the business value, or one of them expects a greater share based on their contribution to building the business, it will be left to the Family Court to help settle the matter. This could involve the Court ordering the sale of the business with the proceeds divided on a just and equitable basis.

The ex-partners, or the Court, may also appoint an independent valuer to provide a more accurate estimation of the value of the business, which they provide to the Court as an expert witness. This value can help the Court to decide on an equitable division of assets between the ex-spouses.

Generally speaking this estimated value is not the price of the business if it were to be sold but its monetary value to the owner as well as the profits and other benefits the owner would derive if they continued operating the business.

Factors considered in a business valuation include it earnings over time; whether the business has stopped operations, or continues, and; estimates of future cash flow and also profits if the business were to be sold.

Case example

One recent example which illustrates the division of business assets in Family Court proceedings is the 2016 case of King v Hamidou (‘King’).

In King, the parties operated a number of businesses before their marriage ended after 14 years. ‘D’ Business, as it was known during the proceedings, was the subject of the property settlement because both parties wished to solely retain their interest in this successful venture.

The Court considered the direct and indirect financial and non-financial contributions of each party to the enterprise. It also considered the competing valuations of the business, with Ms King providing a valuation of $3.8 million and Mr Hamidou claiming it was valued at $4.2 million.

The parties’ post-separation contributions to the business were also important, with the Court finding Ms King had continued to operate the business and that her work had returned it to profit due to her financial management.

Assessing all these factors, the Court adjusted the overall asset pool for settlement to 52.5 per cent in favour of Ms King and 47.5 per cent to Mr Hamidou, with Ms King to retain ownership of the business. As part of retaining the business she was ordered to pay her ex-spouse $1,299,740.50 within three months of the date of the orders.

Contact Arbon Legal Group for further advice

When a business becomes part of the asset pool that needs to be divided in the unfortunate event of a divorce, matters can become complicated and, in some cases, an ongoing source of conflict.

Disputes about the value of the business, the contributions of each party to the venture before, during and after the marriage, and the needs of each party post-separation, are all areas of contention which can end up in costly and time-consuming proceedings in the Family Court.

At Arbon Legal Group, advising clients experiencing divorce on how to approach division of a business is one of our specialties. We have many years of experience on how to navigate your way through a potential property settlement in order to get a result that works best for you. Call or email us today for an initial consultation on (07) 5562 0444 or admin@arbonlegal.com.au.

What You Need to Know About Binding Financial Agreements

By | Family Law

The final breakdown of a marriage or a de facto relationship is a sad, stressful and all-too-common event in modern Australia. The consequences of a relationship ending are traumatic for most people, impacting them emotionally, physically and financially.

One way to potentially mitigate the effects of a relationship break-up is to enter into a Binding Financial Agreement (‘BFA’) with your partner, so that both of you are clear what will happen to property, assets, superannuation and debts once the union is over.

Nicknamed ‘pre-nups’ (pre-nuptials), these agreements can actually be entered into before, during or even after the relationship, and generally come into existence to avoid the need for lengthy, costly and messy property settlement legal proceedings once the relationship is over. They also allow a couple to make contingency arrangements which are more flexible and tailored than those which might be handed down in a Family Court decision.

BFAs are sanctioned by the Family Law Act 1975, which recognises that married or de facto couples may make an agreement to cover:

  • financial settlement (including superannuation entitlements);
  • financial support (maintenance) of one spouse by the other, post-relationship;
  • any incidental issues.

The key to a BFA being legally binding is that both parties to the agreement receive independent legal and financial advice before signing, that both parties sign the agreement, that each party receives a statement signed by their lawyer confirming that advice was provided, and that the lawyers’ statements are exchanged between the parties.

While the creation of a BFA means the parties give up their right to have the Family Court determine a property and financial settlement between them once the relationship ends, a BFA can be set aside by a court in certain circumstances (see below). Problems with BFAs often arise because of poor drafting in the initial making of the agreement, which is why you should consult legal experts in family law matters such as Arbon Legal Group before proceeding.

When can BFAs be set aside?

An application can be made to the Family Court to set aside the terms of a BFA if a party to the agreement can show that:

  • The agreement was signed as a result of fraud or duress, such as where one party to the relationship made the other sign the agreement under threat of withholding agreement to something else, such as wedding plans or a financial commitment.
  • One party failed to disclose assets or information which should have been included in the agreement.
  • The BFA was created to defeat or defraud a creditor of one party, or with reckless disregard to the interest of a creditor.
  • When neither party has sought independent advice;
  • There has been significant change to either or both parties’ circumstances which make it impractical for the terms of the agreement to be honoured. This might include a change in circumstances in relation to a child from the relationship where the child or their carer would experience hardship if the BFA is not set aside.

If the Court agrees to set the BFA aside, each party is free of the agreement’s terms and may apply to the Court for a property settlement.

Case example: The 2017 High Court case of Thorne v Kennedy is an instructive example of the potential pitfalls of an improperly drafted and executed BFA.

In this case, 36-year-old Ms Thorne met 67-year-old Mr Kennedy through an online dating site. Ms Thorne had no substantial assets but Mr Kennedy had assets of between $18 and $24 million in value.

After Ms Thorne moved to Australia, Mr Kennedy took her to a solicitor to obtain advice about the terms of a BFA ahead of their wedding in 10 days’ time. The solicitor advised Ms Thorne not to sign the BFA because its terms were overwhelmingly favourable to Mr Kennedy.

On hearing this news, Mr Kennedy told Ms Thorne that if she did not sign the BFA he would not go ahead with the wedding. As a result of this conduct, Ms Thorne signed the agreement and the wedding took place.

When the couple later separated, Mr Kennedy gave Ms Thorne a lump sum payment under the BFA. Ms Thorne subsequently took legal action to have the BFA set aside and after lengthy proceedings, the matter ended up in the High Court where it was found Mr Kennedy had used undue influence, illegitimate pressure and unconscionable conduct in order to get Ms Thorne to sign the BFA. The court found the BFA was ‘entirely inappropriate and wholly inadequate’ and should be set aside. Ms Thorne subsequently brought a property settlement case against Ms Kennedy in the Federal Court.

Contact us for advice and guidance

The case of Thorne v Kennedy highlights the importance of both parties to a BFA being fully informed about the advantages and disadvantages of such an agreement before they proceed to signing it.

While a BFA can provide a clearer path to a fair and equitable disentangling of your lives after a relationship ends, it’s important to get the terms of the agreement right from the outset. BFAs, once made, can also be changed or amended to reflect changed circumstances in the relationship, if both parties agree.

If you have any questions about BFAs as a result of this article, please contact our friendly team at Arbon Legal Group today on 07 5562 0444 or email admin@arbonlegal.com.au.

The Role of Mediation in Family Law Matters

By | Family Law

Mediation has become an increasingly popular way to resolve disputes in family matters for some very good reasons.

Going to court for decisions about parenting, custody, maintenance and the splitting of financial assets might at first appear an easy course, but usually involves lengthy delay, high financial costs, and stress.

By contrast, mediation provides a far more informal and less costly means by which two now estranged people (and sometimes extended family) can reach an agreement they can both live with, and thereby move forward with their lives. Better yet, the process empowers each side of the dispute to mutually reach a satisfactory resolution, with the assistance of a trained, expert mediator.

In most cases, you can also seek the advice and guidance of your trusted legal representative before, during and after the mediation process, but it should be stressed that mediation is not an opportunity for lawyers to negotiate in an adversarial way outside of the courtroom. In mediation, the role of your legal representative is far more about advice and support in the quest for a workable solution to the dispute.

How mediation works

Under Australia’s family law system, mediation or dispute resolution is now a compulsory requirement for separated parents before they can apply to the court for parenting and/or financial settlement orders.

The only exemptions to this requirement are where:

  • The parties are formalising an agreement between them through the court via ‘consent orders’;
  • where family domestic violence or child abuse is present;
  • when you are responding to an application to court by the other parent;
  • a party is unable to properly participate due to, for example, incapacity or geographical location; or
  • a person has contravened and shown a serious disregard for a court order made in the last 12 months.

Under the Family Dispute Resolution (FDR) process, a neutral and impartial accredited FDR practitioner assists the separated couple to create their own parenting plan setting out parenting arrangements going forward. Part of the mediator’s role is to assess whether the FDR process is suitable for a particular family, taking into account any issues relating to family violence, safety, risks to children, the psychological health of the parties and any other issues which may make dispute resolution unsuitable in this instance.

The mediation environment is designed to facilitate a calm, civil atmosphere where both parents can discuss the issues in dispute, raise individual concerns and consider a range of options, underpinned by the primary consideration of the best interests of the children.

This process can involve one or more sessions in which the ex-couple come together in an appropriate, neutral setting to discuss the issues in dispute. ‘Break-out’ rooms are usually also available in which each participant can consult with their legal representative, should they have them present, and/or utilise ‘shuttle’ negotiation, whereby the mediator can go back and forth between two separate rooms with proposals from each party with the aim of achieving a mutually agreed resolution.

Where there are safety or family violence concerns, the mediation process can even be conducted via videolink or telephone. In these COVID-19 times, with the demands of social distancing, these options are generally more favoured for the foreseeable future.

Where children from the relationship are older or demonstrate a certain maturity, it’s possible for them to be included in the FDR process. This may involve the presence of a child psychologist or consultant who discusses the issues with the children and supplies their views back to the parents during mediation.

What happens after mediation

In the best case scenario, both parents can reach an agreement they can each live with and which also preserves a civil and polite basis for their ongoing relationship in raising their children.

The agreement can be recorded as a parenting plan which must be in writing, then dated and signed by both parents. This document can also include details on how anything agreed to can be changed in the future, as well as how to resolve disagreements or non-compliance with the agreement’s terms. It’s possible to revisit and renegotiate a parenting plan some time in the future if required.

If the mediation process itself does not result in an agreement, the discussion process may still result in a later informal agreement, or at least clarify and refine the issues to be discussed if the matter proceeds to court.

Where mediation does not result in an agreement, the FDR mediator can issue a ‘Section 60I’ certificate which allows an application to be made to a family law court. This certificate will attest to the fact that:

  • One party did not take part in the FDR process;
  • the parties attended and made a genuine effort to resolve the dispute;
  • the parties attended but one or both of you did not make a genuine effort to resolve the dispute;
  • the mediator decided the case was not appropriate for FDR; or
  • the mediator decided it was not appropriate to continue part way through the FDR process.

How legal advice can help

Speaking with family law specialists like Twohill Lawyers is highly advisable if you have recently separated and need advice on next steps. We have years of experience helping clients going through family separation, including advising on the suitability of mediation for their circumstances. We will simply and relevantly explain your rights and responsibilities in terms of the law, and assist you in resolving family and financial issues with your ex-partner without the need to go through the stress of the court process.

If you have any questions about mediation and how it can work for your family law matter, call us and speak to a member of our friendly team today on (07) 5562 0444.

What Happens if a Party Dies Before the Finalisation of a Property Settlement Matter

By | Family Law

When a couple separates for good, it’s not uncommon for legal and financial professionals to encourage both parties to formalise the split sooner rather than later… and there are good reasons for this.

One of those reasons is the situation where one half of the ex-couple dies before a property settlement can be reached. If mediation or court proceedings leading to a property settlement have not been commenced before the death of one party, it may prove impossible for the surviving ex-spouse to be provided for from the deceased person’s estate. This can be particularly distressing if the deceased person was the major breadwinner during the relationship or retains most of the assets.

Other options such as a family provision application seeking a share of the deceased’s estate may still be available but again, time is of the essence as time limits to commence an action apply.

This situation can end up being quite complex, legally and financially, and so the counsel of an experienced legal professional is advised.

The case of Alagiah v Crouch

The 2015 Supreme Court of Queensland case of Alagiah v Crouch is a stark illustration of the situation where one party dies before a property settlement is reached.

Mrs Alagiah and her former husband were married for 22 years and had no children. They separated in 2006 and divorced in May 2012. The husband then suddenly died in early 2013.

After separating the parties had attempted to reach a property settlement, but no agreement had been reached at the time of the husband’s death and neither party had filed proceedings in the court. As a result, Mrs Alagiah had limited options to make a claim on a share of the assets from the marriage.

Mrs Alagiah then sought to make a family provision application for adequate provision for her proper maintenance and support from her former husband’s estate. The court found, however, that she was not a ‘dependent former wife’ who was receiving, or entitled to receive, maintenance from Dr Alagiah prior to his death. After their separation, Mrs Alagiah had no longer been supported by the deceased.

Her application was also well outside the statutory time limit for such applications – made 18 months later than the time limit of nine months after the death when a family provision application should be made.

The take-outs

Mrs Alagiah’s case demonstrates a number of important considerations for people who separate but have yet to negotiate a property settlement. Key among these is that once a couple separate, the parties should move quickly to finalise a property settlement or binding financial agreement. While property settlement applications must be made within 12 months of divorce, failure to lodge court proceedings before this time may place you in Mrs Alagiah’s position if your former spouse dies.

Had court proceedings been filed before his death, Mrs Alagiah would likely have been able to continue her property settlement matter against her former husband’s legal personal representative (i.e. the executor).

Having divorced, and not relied on her former husband for financial support, Mrs Alagiah could not then make a family provision application for provision from his estate.

If you are going through a separation and divorce, consulting with a legal firm that specialises in the issues around property settlements and wills and estates is vital. At Twohill Lawyers, we understand your situation and will provide the right advice in order to secure your rightful share from the former relationship. Contact us today on (07) 5571 1450 for an initial discussion.

My Ex Won’t Disclose Their Financial Position For Our Property Settlement – What Should I Do?

By | Family Law

It’s a sad fact that once a relationship ends, it’s quite common for one party to hide or misstate their true financial details so that certain assets don’t become part of a property settlement made to finalise the split.

But what the party who does this sometimes fails to realise, or chooses to ignore, is that as soon as a separating couple begins to discuss a property settlement, each party has an ongoing duty of disclosure. This means that they must provide each other with all the information and documents relevant to their case, and this duty continues until the settlement is reached.

Of course, if you become aware an ex-partner is hiding or misrepresenting details about their finances you should immediately seek legal advice to see what options are open to you to gather the information you need to negotiate a fair and equitable property settlement.

What can you do when a partner hides money and assets?

Once discussions about a property settlement commence, each party to the settlement may complete a  Financial Statement that details all of their assets, liabilities and financial resources, whether held solely, jointly with any other person, a third party (such as a new partner), a company or a trust.

This financial statement is a prescribed family court form and acts as an affidavit if filed in Court, meaning it must be sworn under oath or affirmed before a prescribed witness. If a party provides false information, even by mistake, the credibility of that party’s case may be affected and penalties for swearing false evidence may also apply.

Under the duty to disclose, you can request documents from your ex-partner provided they are relevant to the property settlement. These might include tax returns; bank statements; pay slips; superannuation statements; Centrelink documents; Child Support Assessments; Certificates of Title; mortgages; land appraisals or valuations; leases; loan applications or agreements; insurance policies; share certificates; trust deeds; and business, partnership or company documents.

It should be noted that the duty also includes details of any sale or gifting of any assets made in the year immediately prior to separation, or since separation.

What to do next if you believe your former partner is hiding financial details

If your ex-partner refuses to provide full disclosure, you have few options other than to commence proceedings. It’s highly advisable to seek legal advice to assist with identifying whether the disclosure you have obtained  (if any) has inaccuracies, inconsistencies or items that require further examination.. Your ex-partner’s financial statement may highlight discrepancies and it is important to remember that parties may be cross-examined on their financial statement during court proceedings.

If you remain suspicious or concerned that full disclosure has not been provided the following can be implemented:

  1. Seek orders from the Court that specific documents be provided; and/or
  2. Subpoena the party or a 3rd party, i.e. banks, employers, financial advisers and any other relevant organisation that may be in possession of financial records relating to the property settlement, to provide the document to the Court.

If certain documents have already been requested for disclosure but the other side has refused to provide the documents, the non-disclosing party may risk an order by the Court to pay the costs associated with obtaining the order for further disclosure.

Further, a Court may not allow for a document to be relied on or used if the document has not been previously disclosed. If a Court finds the non-disclosing party has assets that have not been disclosed, the Court has the discretion to be more generous to the other party in the property settlement.

Finally, it’s possible to serve an ex-partner with a Notice to Admit Facts. This notice would ask direct questions on issues directly relevant to the property settlement. The responses to these questions can be subject to cross examination in court, and any inconsistency between the answers in writing and those given in court can result in an adverse outcome for the non-disclosing party.

Failure by one party to comply with any of the steps set out above can result in a court order that prevents the person from relying on the document/s at a later date; or contempt of court charges and court costs; or dismissal of the case.

Forensic accounting

One course of action often employed by people whose property settlement involves assets of substantial value is to employ the services of a forensic accountant. Forensic Accountants are specialists in examining financial records for evidence of assets hidden or sold to avoid then becoming part of a property settlement. This is generally a costly option in order to discover whether a former partner has been hiding assets and one that should only be undertaken after seeking legal advice as to whether you have reasonable grounds for your belief that your ex has concealed or understated assets.

The value of expert legal advice

One of the first casualties of a relationship break-down is trust between the former partners. This situation is exacerbated where one party conceals their true worth so as to prevent their ex accessing an equitable share of the assets in a property settlement.

Unfortunately these situations can be fraught with conflict, deceit, and a ‘he-said, she-said’ battle. Availing yourself of expert legal advice to help guide you through some of the options outlined in this article is a wise thing to do.

Family law professionals Twohill Lawyers have proven experience and expertise in matters such as this. We’ll provide relevant, effective and confidential advice to assist you towards the best property settlement for you, thereby helping you move on with your life. Contact us today for a no-obligation initial consultation on (07) 5571 1450.

What Can I do if My Ex Does Not Comply with Parenting Orders

By | Family Law

Unlike parenting plans where two people whose relationship has ended decide between themselves the best way to raise their children, parenting orders are handed down by a court and have an altogether difference consequence if they are not complied with.

For a start, parenting orders create legal obligations and are legally binding. If either parent contravenes a parenting order, there are penalties within the Family Law Act that apply. Depending on the severity, frequency and intent with which a parenting order is disobeyed, sanctions can vary from being made to attend a parenting program through to a prison term for repeatedly breaching the orders.

There are also ‘reasonable excuses’ a parent in contravention of a parenting order can cite. Parenting orders can also be changed or varied with the agreement of both parents if an order/s from the original decision later proves impractical due to the living situation of either party changing.

In any of the circumstances discussed above, legal advice should be sought to ensure you are taking the right course of action. When an ex-partner fails to comply with parenting orders, it can frequently become a flashpoint that revives old enmities and domestic battles at a time when you’re trying to move on with your life.

What are parents’ obligations under parenting orders?

Parenting orders made under the Family Law Act relate to:

  • parental responsibility for a child;
  • living arrangements for a child;
  • time spent and communication with a child; and
  • any other aspect of the care, welfare or development of a child.

Once orders are handed down by the court, both parents must take all reasonable steps to ensure that the order is put into effect. This means, for example, that where the order sets out the times and dates that the children must spend with the other parent, you must not only make sure the children are available to do so but also positively encourage the children to comply with the orders.

When one or both parents’ circumstances change – they may move, or gain a new partner, or a new child – and the current parenting orders become impossible or impractical to comply with, then parents can seek a variation to the orders. But a parenting order remains in force until a new parenting order changes it and so any ‘one off’ agreements to depart from the orders should be recorded in writing. Otherwise, the failure to comply with the orders will be construed as a contravention when one parent subsequently seeks to enforce the orders.

What you should do if a former partner contravenes parenting orders

There are three basic options where the other party fails to comply with parenting orders, depending on the seriousness of their breach.

If their contravention is minor, such as missing a time set for return of a child by 30 minutes or so, it may be best to just record the breach in case it is required as evidence at a later date should the breach become a habit. If there is a more substantial or repeated breach of disagreement about the parenting orders, the services of a family dispute mediator may be required. They can help both of you find a solution that avoids the need to go to court, though you do both need to pay for the mediation. If neither of the first two actions is sufficient, you may need to seek the Family Court to enforce the orders by filing a Contravention Application  and an Affidavit detailing your grievances. The other party will also be able to respond before the court hearing.

Section 70NAC of the Family Law Act sets out the circumstances in which a party contravenes a parenting order, where they:

  • intentionally fail to comply with the order; or
  • make no reasonable attempt to comply with the order.

If you are alleging your ex has breached the parenting orders you must have kept detailed evidence of the instances of breach and you must meet the standard of proof set out in Section 70NAF of the Act.

Most contraventions will be assessed on the ‘balance of probabilities’ where your evidence must show the other parent more likely than not contravened the orders.

For serious and repeated breaches, such as the indefinite removal of a child to another location or overseas, the higher standard of ‘beyond reasonable doubt’ is required. The court must be satisfied that a reasonable person would not have cause to doubt that the contravention occurred.

Under Section 70NAE of the Act, the parent alleged to have breached the parenting orders can cite the following reasonable excuses for the court to consider in their defence:

  • They did not understand the obligations imposed by the order;
  • They believed on reasonable grounds that the actions were necessary to protect the health and safety of the person (including the other parent and the child);
  • They believed on reasonable grounds that not allowing the child and the person to spend time together or communicate together was necessary to protect the health and safety of a person (including the other parent and child).

A court’s decisions and penalties

The court has wide powers to ensure parenting orders are enforced where they find one party has not complied with them. The court may find that the alleged contravention was not established; that it was established but there was a reasonable excuse; that there was a less serious contravention without reasonable excuse, or that there was a more serious contravention without reasonable excuse.

If a court finds that you have failed to comply with a parenting order without reasonable excuse, it may impose a penalty. Where a parent disobeys an order multiple times, or the court thinks that parent is ignoring the parenting order, more severe penalties may apply.

The penalties are listed in Division 13A of the Family Law Act and can include:

  • Varying the primary order;
  • ordering you to attend a post-separation parenting program;
  • compensating for time lost with a child as a result of the contravention;
  • require you to enter into a bond;
  • order you to pay all or some of the legal costs of the other party or parties;
  • order you to pay compensation for reasonable expenses lost as a result of the contravention;
  • require you to participate in community service;
  • order you to pay a fine;
  • order you to a sentence of imprisonment.

A court may also adjourn the case to allow you or the other party to apply for a further parenting order.

The importance of good legal advice

As mentioned at the outset, parenting orders are legally enforceable obligations. If you believe the other parent is in contravention of the orders, you should seek expert legal advice to inform you of your legal rights and responsibilities before taking any other action.

Experienced family legal professionals such as Twohill Lawyers can provide confidential, understanding and relevant advice which can help save you time and money in ensuring that the other parent meets his or her obligations under the parenting orders. Contact us today for a no-obligation initial consultation on (07) 5571 1450.

What Rights do Grandparents Excluded from Seeing their Grandchildren have?

By | Family Law

Perhaps one of the saddest consequences of family breakdown is when relations between parents become so strained that grandparents on either side are excluded from seeing their grandchildren. Either or both parents may ‘forbid’ their parents-in-law from interacting with the children for any of a multitude of reasons.

Under the Family Law Act 1975, grandparents lack any express or automatic right to maintain a relationship with their grandchildren when a family splits up, but under the Act’s guiding principle of “the best interests of the child”, a child maintains a right to see their grandparents. This means that when the family court makes an order in a parenting dispute, it takes into account whether it’s in the best interests of the child to include or exclude a grandparent in the child’s life.

The Act also allows grandparents to apply for access to their grandchildren, as well as be included in parenting plans, parenting orders by consent, and a parenting order made by the court, which we’ll explain further below.

Where a parent or parents demonstrate they are unwilling, unable or lack the capacity to care for their children, grandparents may also apply to the family court for custody of their grandchildren. If there is clear evidence of abuse or neglect, the court is more likely to grant the grandparents full custody of the grandchildren, otherwise the court needs to be satisfied that the parents are unable to meet the needs of their children.

More detail on avenues of access for grandparents

Where separating parents wish to avoid going to court – often the case where relations between the ex-couple remain polite and civil – they may create a parenting plan dealing with issues around where the children live and when, as well as visitation arrangements with grandparents. These plans are voluntary agreements, usually achieved through a mediation or dispute resolution process.

The flexibility of parenting plans mean there is nothing stopping a grandparent from asking for their needs in terms of seeing their grandchildren to be considered when a separating couple makes such a plan. But the fact these plans create no legal obligations and can’t be enforced means grandparents can be left in a vulnerable position if there is a later disagreement between the parents.

For this reason, some people may choose to apply to the court to have their parenting plan formalised by the court and turned into enforceable ‘consent orders’. Parents are legally obliged to comply with these orders, including any provisions about the visitation rights of grandparents. Should they not comply, as an aggrieved party a grandparent can apply to the court for it to make a ruling on the parent’s non-compliance, including any penalties.

In situations where parents need the court to decide on parenting arrangements, the court will take into account the terms of any previous parenting plan, including the inclusion of time for grandparents to see grandchildren. But a grandparent is also entitled to apply to the court for visitation rights. In deciding on this application, which will result in an order that is enforceable, the family court will consider:

  • The views of the child, including whether they really want to spend time with the grandparent/s;
  • whether the child considers the grandparent a significant part of their life;
  • whether there is any risk of neglect or violence;
  • an objective assessment of the relationship with the grandparents;
  • what amount and sort of interaction the child has had with the grandparent/s up until now;
  • whether the grandparent/s have the capacity to care for the child;
  • whether the child’s parents have been unable to adequately parent the child due to family violence or neglect;
  • the practical difficulty and expense, and any other factor the court considers relevant.

Grandparents applying for custody of grandchildren

In situations of family violence or neglect, as mentioned above grandparents may feel they also need to apply for custody of their grandchildren.

The court will again take a “best interests of the child” approach before making an order in favour of a grandparent for custody. This approach considers:

  • Protecting the child’s psychological or physical safety;
  • the likely benefit of a meaningful relationship with the grandparent/s;
  • effects of the change in living arrangements on the child;
  • what type of relationship the child has with both the parents and grandparents;
  • how the child is, and will be, financially maintained;
  • the evidence of any family violence; and
  • the views of the child, depending on their age and maturity.

The benefit of legal advice

These are complex and sensitive matters. No grandparent really wants to interfere in the life and parenting ability of their child, but nor do they wish to be excluded from the lives of their grandchildren. In more serious situations of domestic violence or parental incapacity, grandparents may have to take on the role of the parent.

Seeking the advice and guidance of a legal representative with wide experience in this area is a wise course of action. They can help identify your rights as a grandparent and advise you on the best way forward in protecting those rights. At Twohill Lawyers we deal every day with family law matters such as parenting agreements, custody, children and domestic violence. Call us today on (07) 5571 1450 for a confidential and understanding appraisal of your situation.

Domestic Violence

What to Do If You’re Frightened to Leave a Situation of Domestic Violence

By | Family Law

The horrendous murder of Hannah Clarke and her three children by her former partner in Brisbane in February 2020 has focused attention yet again on the terrible toll domestic violence takes in Australia.

While men are also the victims of domestic violence, Australian women are nearly three times more likely than men to experience violence from an intimate partner. Since they turned 15 years of age, one in three Australian women has experienced physical violence and one in five has experienced sexual violence. One in four women has experienced emotional abuse by a current or former partner. On average, one woman a week is murdered by her current or former partner.

These are horrific statistics and highlight the fear and intimidation many people experience when they realise they should leave an abusive relationship but feel they are unable to. Below we try and provide some useful advice on how to deal with domestic violence if, for whatever reason, you feel you can’t just immediately leave.

What constitutes domestic violence and why don’t people just leave?

Domestic and family violence can comprise physical, psychological and emotional abuse. Pushing, slapping, hitting, punching, biting, pinching or the aggressor putting their hands around your throat is pretty obviously physical abuse. An abusive partner may also threaten harm to you, your relatives, friends, pets or colleagues. They may also threaten self-harm as a way to control you.

Other abusive behaviours include controlling who you see and talk to, damaging domestic property to intimidate or cause fear, controlling household money, constantly criticising, humiliating or insulting you, following you outside of the home, and monitoring your phone and social media usage.

The circumstances around an abusive domestic relationship can be complex, particularly where children are involved. A person experiencing abuse at the hands of their partner will have many and varied reasons for remaining where they are, even if they feel they should leave. A few of these include:

  • Fear for their life and those of their children should they leave.
  • Having no where else to go, or believing the abuser will find them should they leave.
  • Fearing they will end up homeless, with no money for food or accommodation.
  • Remaining because friends and family have advised them it’s their best option.
  • Believing their partner’s remorse for their actions and promises not to do it again.
  • Religious and/or cultural beliefs about marriage.
  • Shame and embarrassment about the domestic situation.
  • Fear they will lose their children in a parenting dispute should they leave.

Create a safety plan

Domestic violence experts advise victims of abuse to make a safety plan in situations where they fear for their safety and that of their children. This plan can help you think clearly in the midst of a dangerous domestic situation, and assist you to be more confident and independent if you need to leave. There are a number of domestic violence organisations, such as DVConnect in Queensland, who can help a person experiencing abuse to create such a plan.

A safety plan should address a number of key priorities in case you need to leave due to an escalation of domestic violence.

Firstly, the plan should identify the home of a family member/s or friend/s that will provide a safe place. This may involve creating a code word to use with friends, family, or neighbours that will alert them to the fact you are in danger and include a secret location where you can meet them in order to escape the abuser.

If possible, have an alternate mobile or another means of communication with family and friends that is not known to the abuser. Try and memorise important numbers or other contact information in case your abusive partner cuts off all means of communication.

Your plan should also include a list of things to take if you need to leave suddenly, including your main ID documents and those of your children, any cash and any small items of significant sentimental value such as pictures. If possible, consider also taking any evidence you have of your partner’s abuse or violence, such as threatening notes or old copies of police and medical reports about previous domestic violence.

Domestic Violence Orders

Where domestic violence poses a real threat to the safety of you and your children, a domestic violence order (DVO) may be necessary. Obviously if the danger is immediate you need to call the emergency services on 000. A DVO is an official document issued by a court designed to stop further threats or acts of domestic violence by the abuser. It makes illegal certain behaviour by your abuser and it is a criminal offence for them to disobey the order.

If the danger to you is immediate, you or the police can apply to a magistrate for a temporary protection order to protect you and your children until the time a magistrate can decide whether a full protection order is required.

Protection orders to protect those in domestic and family violence situations can be in effect for up to five years, or for shorter or longer periods depending on what the court deems appropriate.

A DVO sets out specific rules the abusive person must follow, such as not approaching you at home or work, not approaching friends or relatives, or preventing them going near your children’s school or daycare. You can nominate extra conditions for the court to consider including in the order when you make the application for a DVO.

Both you and the abuser will get a copy of the DVO once it is made. It’s crucial to keep this document safe so you can produce it to show police should the abuser breach any of its conditions.

How we can help

At Arbon Legal Group, we are specialists in the area of family law, including helping people through the terrible experience of domestic violence.

Whether you are concerned about ongoing physical and emotional harm, how you should go about leaving an abusive relationship, or your financial and legal position should you choose to do so, we can help you make those first steps to a safe and secure future.

Call us to today on (07) 5562 0444 and we will discuss your case with compassion and understanding.

Other important contacts

  • DVConnect Womensline 1800 811 811
  • Mensline 1800 800 636
  • Child Safety After Hours Service Centre (07) 3235 9999, or freecall 1800 177 135, 24 hours a day (Queensland only)
  • 1800RESPECT 1800 737 732
property settlement

What is a Property Settlement?

By | Family Law

Working out how to divide property and assets when a relationship ends can be a very difficult time. Emotions are high and yet a sober, clear-minded approach is required in order to formalise an agreement between yourself and your ex to ensure each of you achieves the best outcome for your situation.

A property settlement can be made between ex partners with or without the help of the court to formalise the division of assets, liabilities and other financial resources after separation.

There is often some confusion over what is considered ‘property’ in making a settlement. Some of the things generally considered to be included are:

  • the family home;
  • jointly owned assets;
  • savings and investment accounts;
  • investment properties;
  • cars;
  • superannuation and shares;
  • business interests;
  • family trusts and other trust interests;
  • debts and any other liabilities.

While the above items are usually considered as ‘common’ assets from the relationship, other assets can also be considered as part of a settlement. These may include one partner’s interest in a company; property owned in only one person’s name; funds or interest over which a partner has influence or control; inheritances; and assets owned before the relationship, during the relationship and acquired after separation.

Making a property settlement without going to court

Property settlements can be complex to negotiate and ideally require the guidance and advice of an experienced legal professional, particularly if you and your ex-partner want to avoid going to court by coming to an agreement between yourselves.

Methods outside of the court process such as mediation and conciliation are often helpful in reaching a property settlement between estranged partners, facilitating a fair and equitable outcome for each of you and maintaining a civil basis to your future relationship with your ex.

If both parties can agree on the terms of a property settlement, your legal representative will advise you to have the agreement finalised either by applying to the court for a consent order or by making a financial agreement.

Financial agreements can be made before, during or after a relationship. They resemble a contract and provide the terms for how property is to be divided if and when you decide to go your separate ways.

Before signing any such agreement, each party must receive independent legal and financial advice. If formal requirements have not been met the agreement will be invalid and the court may set it aside.

Consent orders recognise an agreement has been reached and that each of you abide by its terms. The court approves the order to give it legal effect. It’s possible to apply for a consent order without having to attend court.

Court-ordered property settlements

As mentioned at the outset, it’s an emotional time when a couple separates and often the rawness of the split means the parties cannot reach an agreement on the complicated issue of dividing assets and debt.

In this situation they may need to apply to a court to make an order on their behalf to resolve the issue. At this point people often make the mistake of thinking property will be divided equally between the ex-partners, but in fact each case is different and the court will assess the total assets, liabilities and financial resources of the couple, the financial and non-financial contributions made by each person during the relationship, and each person’s future financial needs, before making a decision on the equitable division of property.

A court will also only make an order if it is “fair and reasonable” to alter the parties’ property interests. A number of steps are then taken to work out how to split the property assets between the parties, including:

  • Identifying and valuing the property pool to be divided, including assets, liabilities and financial resources.
  • Determining the direct and indirect, financial, and non-financial contributions (such as salary, care of children and homemaking) made by or on behalf of each of the parties, on a percentage basis, during the relationship.
  • Considering the future needs of each party (including care of children, health, financial resources, ability to earn).
  • Considering whether the division will provide a just and equitable result in all the circumstances.

Where one party is worried their ex-partner will sell property before a settlement is reach, they can lodge a caveat to prevent this happening. The caveat is then lifted and the value of the property split once a settlement is reached. Seek professional legal advice promptly if you believe your former partner is attempting to dispose of property you believe you have an entitlement to.

Time limits

A married couple must make a property settlement within 12 months of their divorce being finalised, while a de facto couple has two years from the date of separation to make such a settlement. The court may grant an extension of time in exceptional circumstances.

Because some assets increase in value over time, it may be advisable for estranged partners to make a property settlement as early as possible after they separate.

At Arbon Legal Group we are experts in family law matters such as property settlements, either by avoiding the need to go to court, or by effectively advocating for you through the court process. Contact us today!

Can Your Ex-De Facto Partner Inherit Under Your Will?

By | Family Law

As qualified family lawyers, we often help clients facing challenging, if not devastating life events. These include the death of a loved one, and the end of a marriage or de facto relationship. In some cases, our clients are dealing with the effects of both. One question we sometimes get in this context is whether someone has the right to any inheritance made in his or her former de facto partner’s will. Here are a few things to keep in mind.

The legal definition of a de facto relationship

To begin with, it is essential to understand how the law classifies de facto relationships. As per the Family Law Act of 1975, this type of relationship:

  • Is one in which two people;
  • of the same or opposite gender;
  • have been co-habitating as a couple;
  • for valid reasons; and
  • for a specified period.

A relationship can be legally classified as de facto after two years together, or if the people involved have a child together. The legal classification of a de facto relationship may occur sooner if: 1) one of the people involved has made significant contributions to the relationship; and 2) if failure to recognise a de facto relationship would create significant injustice.

The Succession Act 1981 (Qld) (“the Act”) also stipulates that:

  • The  people involved;
  • lived together as a couple;
  • on a “genuine domestic basis”;
  • for an uninterrupted period of no less than two years;
  • at the time when one of them passed away.

Relevant legal changes

So what happens if you and your de facto partner broke up before you passed away, but you never changed your will and now he (or she) is trying to claim his or her share of the inheritance? The answer may surprise you, because Queensland law has viewed de facto relationships the same way as marriages since June 5, 2017. Consequently, dissolution of the relationship results in automatic revocation of a de facto spouse’s appointment as executor of the will. The same applies to any gift made to them through the will.

However, it should be noted that even though they are now treated equally, there is still a key difference between how traditional marriages and de facto relationships are lawfully terminated. Accordingly, there is a key difference in how lawful termination of a traditional marriage and a de facto relationship affects an ex-spouse or ex-partner’s standing in a will. Contrary to popular belief, revocation of applicable provisions to a former husband or wife does not kick in when legal separation begins. Instead, it can only occur after a formal divorce order is issued by the Family Court.

But no formal order/decree is needed for the lawful termination of a de facto relationship.  Therefore, revocation of applicable provisions to a former partner in a will takes effect upon termination of cohabitation.

Challenging your will

Of course, all of this begs a question. Can your former de facto partner challenge your will? In Queensland, the answer is most likely, “no”. This is because Queensland law does not recognise a de facto partner as an “eligible person”.

But again, there is a catch. Section 40 of the Act stipulates that some of your “dependants” may be classified as eligible persons. In this context, a dependant is legally defined as someone that you were supporting in some degree up until the time of your death. Of importance here is that this definition also includes “the parent of a surviving child who is less than 18 years of age and who is also a child of the deceased.” This means that your former de facto partner could be allowed to challenge your will if the two of you had a child together who was a minor when you died.

Establishing the existence of a de facto relationship

If your former de facto partner is allowed to challenge your will and decides to do so, he or she may have to provide proof of the relationship. Specifically, he or she must be able to show that you were not legally married or related by family. Furthermore, he or she must be able to show that you lived together in a “genuine domestic relationship”.

To reach a determination about the latter, a court usually takes the following into account:

  • How long the two of you were in the relationship;
  • whether you had any children together;
  • the circumstances in which you lived together;
  • whether you engaged in intimate relations;
  • the extent to which you relied on one another financially;
  • property acquisition and ownership.

What if you want the provisions in your will to stand?

Not all relationships end on a bad note. In fact, a lot of former spouses or partners stay friends for years after their marriage or de facto relationship ends. If you and your former de facto partner have remained on good terms, you may want any provisions made for him or her in your will to remain in effect even though you are no longer together.

There is only one way to guarantee this will happen. You must make a stipulation in your will indicating that you want your former spouse’s appointment as executor to stand, and any gifts made to him or her to be allocated as per your wishes. Failure to do so will result in automatic revocation of any provisions/gifts made to your former spouse in your will when you split up.

If you have questions or concerns about this, or any related issues, don’t hesitate to contact the experienced family law team at Arbon Legal Group.

Moving House With The Kids?

By | Family Law

Packing up and moving is seldom easy. For parents, packing up and moving with the kids following separation or divorce can be especially challenging. One of the most serious considerations is whether you have to get the other parent’s permission to do so. Here’s what you need to know about this important issue.

Reaching consensus on the move

In accordance with Australian law, you must get your former spouse’s (or former partner’s) permission to move with a child you had together. Ideally, the two of you will still be on good terms at this point. If so, you might be able to reach an agreement on your own about your relocation with the kids. Once you’ve done so, you should consider taking appropriate steps to formalise the agreement.

If you can no longer communicate with the other parent effectively by the time you are considering a move, there is always Family Dispute Resolution (FDR). In this forum, a neutral third party facilitates the conversation while allowing each of you to have a say about specific aspects of the agreement.

In a best-case scenario, FDR will work. If it does, you must then decide how to formalise the agreement. This is usually done through either a written parenting plan or a consent order. The key difference is that a parenting plan is not legally binding, but a consent order is. Although you may not think you need a legally binding agreement, it is always best to consult a qualified lawyer before signing any legal document.

When court intervention is warranted

But what if you’re not on good terms with the other parent, you’ve tried FDR and it didn’t work? In this situation, court intervention is warranted, and you must submit an application requesting Relocation Orders. Once you have filed it, the court will determine whether or not you can move with your child.

To reach its decision the court must consider whether relocation with you is in the best interests of your child or children. There is no guarantee that the court will allow it. Specific factors the court will usually take into account include:

  • Whether the proposed arrangements would allow your child/children to have or develop a meaningful relationship with both of you (and in particular, the parent who is not relocating).
  • The child’s/children’s opinion(s) (if they are capable of expressing them).
  • The child’s/children’s bond with each of you (and any other significant people in their lives) and how separation is likely to affect them.
  • The logistics (including cost) of the child/children spending time with each of you (again, in particular, spending time with the parent who is not relocating).
  • Your ability to communicate and foster a meaningful relationship for the child/children with each parent.
  • Any other relevant factors.

You should be prepared to explain the reasons for your relocation (such as a new job, to be closer to family, or the need to escape an abusive relationship). You should be prepared to provide documentation, keeping in mind that the other parent can also seek court intervention to prevent your move.

Relocating to another country

One of the most common concerns parents have about this topic is distance. As it stands, there are no legal restrictions on how far a parent can move with the children following separation or divorce. Theoretically, this means you could move to another country with them. However you could only do with permission from the other parent or the court.

With that being stated, remember that the court could deny your request. Specifically, it could do so if it determined that the distance would greatly inhibit the other parent’s  ability to have a meaningful relationship with the children.

On a similar note, you will also need the other parent’s permission to take your children abroad for even a short holiday. Additionally, both parents must provide written consent for a child to get an Australian passport.

Without written consent, you can still apply for a passport for a child but you must request that special circumstances be considered. Any such application should be made to the Approved Senior Officer of the Department of Foreign Affairs and Trade.

If this application is also denied, you can seek a court order allowing your child to travel internationally. However, absent the other parent’s consent, the court will only issue such an order if it deems that permitting the child to travel is in their best interest.

The consequences of moving without permission

If you and your children move to another part of Australia without a court order or the other parent’s consent, the court will likely intervene. Specifically, it may order that you return to your previous residence until the case is decided. If there is a current court order that you have violated by moving, the other parent can ask the court to have it enforced.

In this context, you should also be aware that if you move overseas without proper authorization, you may be subject to a Hague Convention Application for the return of the children. However, this will only happen if you relocate to a country where the Convention is applicable.

When to seek legal assistance

We recommend seeking competent specialised legal advice about relocation well before you move. This is because it can sometimes take the court months or even years to reach a decision and you need to know the consequences of your actions before you make them.

There are also times when urgent advice is needed. Please contact us immediately if:

  • you anticipate that the other parent is considering relocating with your children and wish to prevent the move; or
  • the other parent has already relocated without proper authorization or consent.

Call us on (07) 5562 0444 or contact us by email admin@arbonlegal.com.au to schedule an initial consultation with an experienced member of our family law team.

Recovery of Children

What are the Issues Around Recovery of Children?

By | Family Law

The worst nightmare of any parent going through separation or divorce is that your ex-partner might ‘take off’ with your kids, within Australia or overseas. Perhaps it has already happened. In either case, you have legal rights. Here’s what you need to know about the recovery of children in family law.

Common reasons for moving without consent

Australian law mandates that a parent must have the other parent’s consent to move with a child following separation or divorce. Alternatively, they must have a court’s permission to do so.

In a child recovery case, the first task is to ascertain why your former partner and the kids relocated without the consent of yourself or the court. Common reasons include but are not limited to:

  • The need to be closer to family (especially for mums with young children);
  • involvement in a new relationship with someone who lives elsewhere;
  • the need to escape violence and/or abuse.

Based on your circumstances, we can provide legal advice about your ability to make an urgent family court application for a recovery order.

What is a recovery order?

When your former partner moves with your child/children without your consent, the Family Law Act 1975 (Cth) allows the court to issue a recovery order. This type of order requires that your child/children are returned to the care of:

  • A parent; or
  • anyone with a current order for the child to live with, spend time with or communicate with; or
  • a person who has parental responsibility for the child.

In this context, you should be aware that this type of order is applicable regardless of whether or not you have current court orders for the child’s care arrangements.

Something else to keep in mind is that a recovery order actually serves two purposes. First, it allows law enforcement to intervene. This is important because the police are best equipped to find the child/children and ensure they are placed in appropriate care. Secondly, it prevents any recurrences of unauthorised relocation.

Who can apply?

If someone other than a parent has concerns about the unauthorised relocation of a child, the question then becomes, who can apply for a recovery order?

A parent is not the only person who can legally do so. A grandparent or anyone else who is involved in the child’s care, welfare and development can also apply for the order.

Applying for a recovery order

The way in which you can apply for a recovery order depends on your situation. If you have pending or existing parenting orders, you can request a recovery order by lodging an application with the appropriate court. If you don’t have current parenting orders or a pending application for them with the court, you should file an application for both.

In either circumstance, you must file an affidavit in support of your request for a recovery order. This is because these orders are only granted at the court’s discretion and they will need to understand your situation.

Based on the information provided, the court decides what is best for the child. As part of this process, it considers whether the child should be sent back to their original place of residence and what living arrangements should be made.

Child recovery from other countries

To this point, we have detailed the child recovery process when relocation occurs in Australia. But what happens if your ex moves to another country and takes the kids without permission?

In such cases the Australian Central Authority within the Federal Attorney-General’s department is the legal forum for seeking the return of abducted children. However, the Central Authority can only process an application for the return of a child who has been taken overseas if:

  • He or she is less than 16 years of age;
  • you have “rights of custody”;
  • you were exercising such rights when your child was illegally removed from Australia or kept in another country;
  • your child was living here continuously immediately before he or she was illicitly taken out of Australia or kept overseas;
  • he or she was taken to, or retained in, a country where the Hague Convention applies; and
  • your child was removed from Australia or kept in another convention country without your consent, or without a court order.

You can find the application to be completed with the Australian Central Authority here.

Keep in mind that you may need to attach certain documents to your application. These may include:

  • A certified copy of the child’s birth certificate;
  • photographs of the child and the person who took him or her out of Australia;
  • a certified copy of existing parenting orders;
  • copies of your Certificate of Marriage and Divorce Order (if applicable).

In most cases, time is of the essence if your child has been taken overseas to a Hague Convention Country without your permission. This means you should submit your application to the Central Authority as soon as possible.

A last resort

Most of the time – in about 80 percent of cases – the failure to return a child to you as scheduled stems from miscommunication or misunderstanding. Accordingly, a simple text message or phone call from you should hopefully resolve the matter. Alternatively, if you and your ex aren’t on speaking terms, a phone call or text from a mutual friend may prompt a quick return of your child.

This means that seeking a court order for the return of your child or filing an application with the Central Authority should be considered a last resort.

If you are going through separation or divorce and have questions about this or any other related issues, we are here to help. Simply phone us on (07) 5562 0444 or contact us by email admin@arbonlegal.com.au to schedule an initial consultation with an experienced member of our family law team.

Spousal Maintenance

What is Spousal Maintenance and How Do I Get It?

By | Family Law

As family lawyers, we often get questions about spousal maintenance. Clients who have heard about it from family or friends sometimes have misconceptions about what it is. Sometimes they are unsure whether they are eligible for maintenance, or they aren’t sure how to go about getting it. In this post, we’ll address some of those questions and concerns.

What is spousal maintenance?

Spousal maintenance is an entitlement afforded to a legal or de facto spouse under the Family Law Act in certain circumstances. The law allows someone to claim spousal maintenance after separation if:

  • There was a significant disparity in income between the parties at the time of separation; and
  • the person who makes more is capable of providing financial support for his or her former partner; and
  • the person who is seeking financial maintenance can’t support himself or herself for any ‘adequate reason’, or one of the reasons detailed below.

Legally, someone can claim spousal maintenance if they need financial support due to their age, health, or mental illness (if any). Someone who has primary care of a child/children from the marriage can also claim spousal maintenance if they can’t support themselves and the child/children without help.

Spousal maintenance is payable in regular instalments or in one single payment based on the specific circumstances of each case.

Methods for obtaining spousal maintenance

Hopefully, you and your former spouse can reach consensus on spousal maintenance on your own. If that isn’t possible, the only way to get spousal maintenance is to file an application for it in the Federal Circuit Court. Along with the application, you’ll have to provide supporting documents detailing your finances, including your income and expenses. The person you’re seeking spousal maintenance from is also required to provide similar information in response to your request.

In this context, one of the most common questions we get is whether the Court uses a specific formula to determine how much the applicant should get. The answer to this question is, “no”. Instead, it assesses the applicant’s ‘financial need’, and the ability or financial capacity of the person with the greater income to meet it. Based on that, the Court then uses its discretion as to what constitutes a reasonable payment.

Relevant criteria

Specific factors taken into consideration include the following:

  • The age and health of both spouses;
  • each of your incomes, property, financial resources and ability to work;
  • who, if anyone has the care of a child;
  • whether one or both of you are responsible for supporting any other person;
  • whether one or both of you qualify for any social security or superannuation benefit;
  • what constitutes a ‘reasonable standard of living’;
  • how much you, as the applicant, have contributed to the other party’s financial resources;
  • the length of your relationship and the extent to which it has affected your earning capacity as the applicant;
  • any current or future liability for either of you in terms of child support payments;
  • any financial agreements between the two of you;
  • any other circumstances the Court deems worthy of consideration in accordance with Section 76 of the Family Law Act.

The purpose of spousal maintenance

There are also a few more things you should keep in mind. The first is that spousal maintenance is not meant to keep you in a lifestyle that you’ve become accustomed to. In other words, you can’t seek spousal maintenance just because you’re used to living in a luxurious home and driving an expensive car, and you won’t be able to afford it on your own.

Secondly, you, as the applicant for spousal maintenance, must take steps to secure work and become financially self-sufficient. The only exception to this requirement is if you have primary care of young children. This is because you are allowed to assume that role as long as your children aren’t yet in school. In other words, you don’t have to deplete all of your marital assets prior to making an application for spousal maintenance. However, you will probably be required to take the same steps towards financial self-sufficiency as any other applicant once the children are old enough to go to school, unless you can provide a viable reason for being unable to do so.

Deadlines for applying for spousal maintenance

The deadlines for applications for spousal maintenance depend on the nature of your relationship. If you were married, you must file your application within 12 months of the date of your divorce. But if you were in a de facto relationship, you must make the application within two years from the date of final separation.

Failing to meet these deadlines does not necessarily preclude you from making an application. This is because you can request special permission from the Court to file an application after the deadline. However, the Court probably won’t accommodate your request unless you can provide a good reason for failing to file within the original time limit.

Summing up

To conclude, spousal maintenance is a basic entitlement legally afforded to a spouse in a marriage or de facto relationship after separation. Eligibility is based on certain criteria. If you and your former spouse are unable to reach an agreement about spousal maintenance payments, you can apply for it through the Court. In either situation, it is always best to get proper legal advice from a qualified family lawyer before proceeding. Contact us to learn more about how our family law team can help you get the spousal maintenance you deserve on (07) 5562 0444 or admin@arbonlegal.com.au

international divorce

What You Need to Know About International Divorce

By | Family Law

From both an emotional and a practical standpoint, getting divorced is seldom easy. It can be especially challenging if you and your spouse are from different countries, however, or if one of you lives abroad. Here’s what all Australians should know about international divorce.

First things first: is your marriage recognised here?

If you got married in another country but you want to get divorced in Australia, the first legal issue that must be addressed is whether your marriage is recognised here. Although a marriage that occurred overseas can’t be registered here, you should still have a foreign marriage certificate. That can be used as proof that the marriage occurred.

In the context of Australian divorce proceedings, any overseas marriage certificate written in another language must be translated into English. Furthermore, this must be done by a registered translator. Finally, both the marriage certificate and translation should be attached to an Affidavit.

In general, a marriage that occurred abroad will be recognised here if you can provide the proof detailed above and:

  • It is deemed legal in the country where it took place;
  • it would have been considered valid under Australian law had you been married here.

However, any of the following conditions bar recognition of a foreign marriage in Australia:

  • if either of you were still in another, legally recognised marriage when you married each other;
  • if either or both of you are domiciled outside of Australia and younger than 16 years of age;
  • if the two of you are closely related (to an extent that marriage is legally prohibited) or there is no mutual consent (one of you has been forced into the marriage).

Eligibility for a divorce in Australia if you or your spouse are living abroad

Assuming you got married abroad and your marriage is recognised here, filing for divorce in Australia is relatively straightforward – as long as both of you are currently living here. But what if one of you now lives in Australia and the other lives overseas? You can still apply for a divorce in Australia if either one of you:

  • Considers Australia as your home and intends to live here indefinitely;
  • is an Australian citizen by birth, descent or by grant of Australian citizenship;
  • usually lives here and has done so for 12 months prior to filing for divorce.

Keep in mind, however, that you must still provide proof that you and your spouse have  lived separately and apart for at least 12 months. Furthermore there must be no reasonable possibility of reconciliation and resumption of married life. Remember, it is possible to live together in the same home and still be separated.

Deciding where to get divorced

Now that we’ve established when you can file for divorce in Australia, the next question is whether this is the best option for you. The answer is, it depends on your unique circumstances. Generally speaking, however, there are serious legal and financial issues to consider when making this decision.

Let’s say, for example, that you’re trying to decide whether to file for divorce here or in a European country. What are the legal pros and cons?

Well, to begin with, Australian law recognises de facto and same-sex couples. It also allows for the division of property when a relationship fails. By comparison, European countries tend to have fewer rights for de facto partners regarding the division of property when a relationship is no longer viable.

Secondly, Australian courts make binding property orders pertaining to any property held by the parties. This means any such orders would apply to property in Australia and abroad. While some European countries also do this, others don’t. In fact, many European courts limit property orders to property located in their country.

Finally, premarital agreements in some European countries may be considered binding. As such, courts may not have jurisdiction or authority to change the terms of the agreement. This may be true even if:

  • The terms are grossly unfair;
  • one party did not seek independent legal advice prior to entering the agreement;
  • a sudden change in one or both of your personal circumstances rendered the agreement unfair or unjust.

Other issues of concern in this context are how courts in European countries handle financial disclosures and spousal maintenance.

Giving you the information you need to make an informed decision

One of the most important things we do as family lawyers is giving our clients the information and tools they need to make informed decisions. If you have questions or concerns about international divorce, our family law team will provide comprehensive legal advice tailored to your situation. Depending on your unique circumstances, we can address:

  • Tax implications associated with international divorce;
  • how long it will likely take to get divorced in another country;
  • whether or not the courts in another country can grant protective orders;
  • the extent to which foreign divorce laws could adversely affect someone of a specific gender or someone in a de facto relationship;
  • the extent to which the laws in some European countries may influence where divorce proceedings are filed.

If you need advice or guidance about how we can help facilitate your international divorce, contact trusted divorce and family law specialists Twohill Laywers today on (07) 5562 0444 or admin@arbonlegal.com.au.

Separation

10 Things You Must Do Following Separation

By | Family Law

There are few experiences more traumatic in life than a relationship break-up with a long-term, much loved partner. For some people, the emotional stress of such an event can have considerable and lasting effects on their finances, on their health, and on their lifestyle.

Naturally enough, the bust up of a relationship can also seriously impair your thinking in the weeks and days after it happens. Arguments and continuing conflict have the potential to overwhelm your ability to make the essential decisions that you need to make in order to move on with your life.

That’s why we’ve come up with this list of 10 things you should keep front of mind if and when a separation happens. Paying attention to some of the things on the list will make ‘life admin’ – made necessary as a consequence of changing living circumstances – a lot easier to deal with.

1. Consider Counselling or Mediation

Either for yourself or, if they agree, with your ex-partner, visiting an objective third party to discuss your relationship breakdown and its implications can be an effective way of externalising the pain and trauma involved. It is also a way to avoid the destructive arguments that can envelop ex-couples post-break-up, which sometimes prevent them from effectively sorting out important issues such as children, finances and living arrangements.

2. Seek Legal Advice

While a separation does not require you to see a lawyer, if you were married and plan eventually to divorce, you’ll need to be properly separated for 12 months. Even if you don’t have an immediate plan to divorce, a chat with a lawyer who has family law experience can help clarify what needs to be done in the days and weeks after separation. They will help you prioritise the documentation you will need in order to later finalise arrangements such as divorce, custody arrangements, property settlements, etc.

3. Talk to Your Children

Children are clever and will always know when things are not right between parents. Be honest and upfront with them about the separation. Invite and do your best to answer their questions on living arrangements and other implications of the separation. Ensure they have what they need to feel safe and secure. Avoid criticising the other parent in their presence – this will not stand you in good stead in any latter family law proceedings. Again, consider a counsellor or family dispute resolution service to help the children understand what’s happening.

4. Assess Your Financial Position

Chances are that being in a relationship meant your finances were enmeshed with those of your now ex-partner. Now that you’ve split, you will need to consider opening a new bank account, applying for a separate credit card, or withdrawing funds from an existing redraw facility or jointly held account, particularly if you’re the one who has to move out of the family home and find new accommodation. Separation can be an expensive event. If the split was particularly acrimonious, there is also the need to guard against the chance your ex will withdraw all funds from any joint account.

5. Stay Off Social Media

This is sage advice in an age when people feel the need to share everything about their lives on social media platforms. But talking about your ex, or showing evidence of your post-relationship lifestyle, can all have negative consequences when it eventually comes time to divorce, conduct a property settlement, apply for child custody and all the other unfortunate consequences of relationship break-ups.

6. Update Your Will and Enduring Power of Attorney

First up, if you don’t have a will, you probably should make one ASAP after separation as if you die without a will but remain married, your ex-spouse could inherit your whole estate against your wishes. If you have an existing will and enduring power of attorney which nominates your ex-spouse as your executor, beneficiary and/or attorney, you should update these documents to reflect your new status. Failure to do so leaves a lot of power in the hands of your estranged spouse in the event you die or become incapacitated.

7. Collect Important Documents

Following on from points 2 and 6, it’s wise to gather up all important legal and financial documents, including your marriage certificate, bank statements, tax returns, superannuation policies and loan documents, and keep them in your possession as you will need to provide detail on your assets and liabilities from the relationship when it comes time to proceed to a property settlement.

8. Review Other Important Policies, such as Superannuation

As with your will, if your ex-spouse is nominated as a beneficiary within your superannuation policy, life insurance or other death benefits, you may wish to update these details after separation. If there is no nomination in place, if you were to die the trustees of your super fund would likely pay any superannuation and death benefits to your former spouse. If money in the fund is for the benefit of your minor children, consider paying these benefits to your estate upon trust and nominating a trustee in your will to manage these funds until your children have reached adulthood, otherwise the surviving parent (your ex-spouse) – as the children’s guardian – will be in control of this money.

9. Update Other Information

Like finances, a relationship means lots of other ‘life admin’ matters are joined together. On separation, it’s time to contact various government agencies (Centrelink, etc.) to update your situation. Consider opening a new post office box and redirecting important mail from the former family home. Set up a new email account and change passwords to any personal media, internet banking and other accounts in case your ex-partner knows your former passwords.

10. Stay Calm

All of the above requires some clear thinking and a rational process, yet you’re being asked to do it during a highly emotional time. As best as possible try and keep high emotion out of the things you need to do to separate your life from your ex. Speaking regularly with a counsellor and engaging a family lawyer with a clear view of your priorities at this trying time will greatly help you navigate your way forward.

If you need advice or guidance on any of the issues raised in this article, contact trusted divorce and family law specialists Arbon Legal Group Laywers today on (07) 5562 0444 or admin@arbonlegal.com.au

Family Report

What is a Family Report and How Do We Prepare For One?

By | Family Law

In the sad event that a family breaks up, family reports have become important documents in court proceedings about the living arrangements of the children.

A family report can be ordered by a judge, or agreed to between the parents, and is conducted by an experienced psychologist or social worker with specialist training in assessing future parenting arrangements for families who’ve separated.

The report makes recommendations to the court advising on the parenting arrangements the report writer believes will be in the best interests of the children. While these recommendations are in no way binding on the court, they are likely to be persuasive on the decision of the judge about the future living arrangements for the children. The family report recommendations can also be used to assist and encourage the parents to reach an agreement and form a parenting plan to avoid court action.

What does the process entail?

A family report is based on interviews conducted by the expert, independent consultant with each parent, the children and anyone else who has a direct and significant connection with the children’s lives, such as grandparents or new partners of either of the parents. The report will include the findings gleaned from age-appropriate interviews with the children, as well as observations of each parent with the children and – if the case has gone to court – a review of any court documents, including any subpoenaed documents.

The interviews will generally be conducted at the offices of the consultant psychologist or social worker and parents should be aware they will need to set aside most of a day to partake in the process. Arrangements will likely need to be made for the children in terms of their absence from school in order to be interviewed, or their care during the time either or both parents are being interviewed. If younger, pre-school children are involved, the consultant’s office will generally have toys and books to keep them occupied.

How should you prepare for a family report?

  • Stay calm and remember that this process is designed to work out what is in the best interests of the children. Emotional outbursts or score settling are not going to help your cause.
  • Be truthful as an experienced report writer will easily spot inconsistencies in any account of the family situation, particularly as they also interview the other parent.
  • State clearly what you personally wish to happen in terms of the parenting arrangements, including how your wishes impact on the children both positively and negatively.
  • Show understanding of the other parent’s proposal for parenting arrangements and have a view on how it would work should their proposal be the one ultimately accepted.
  • Avoid relying too heavily on written information as personal recollections and accounts of family life – your actual thoughts and feelings – will be far more genuine. Having said that, if affidavit material has already been filed in court proceedings, you should be familiar with it ahead of the report. If there are any concerns about the affidavit, take a note of them during the family report Interviews.
  • Answer questions directly; avoid tangents and unnecessary detail. The report writer will ask for further details if required.
  • Nothing you say to the report writer is confidential. Anything could end up in the report.

How should you prepare your children for a family report?

This is especially difficult, given the children may not have experienced an interview setting before and most likely do not know the consultant. The process can be scary and daunting for them, particularly at a time they already feel insecure. Obviously any preparation needs to take account of the children’s ages. Specific advice on preparing children of different ages for interviews with a family consultant can be found here on the Family Court of Australia website.

The simplest advice is:

  • Keep the process simple and straightforward for children. Be clear about what is going to happen on the day and what is expected of them, without either exaggerating or minimising their role in the process.
  • Under no circumstance should you coach them about what to say or not say. If this is detected by the report writer or, later, the judge, it can adversely affect your chances of securing the parenting arrangement you desire, opening yourself to challenge from the other parent.
  • Ask them to be honest and answers questions directly.

In some cases an Independent Children’s Lawyer is appointed to help represent the interests of the children. In these cases, the lawyer should speak with the children ahead of the family report interviews. In some cases the lawyer may also help answer the questions for the children during the interview.

Other issues to note

If there is a Protection Order in place between the parties, this should be made known to the independent consultant so that the parties are kept separate in terms of appointments for conducting the family report.

If you need emotional support on the day of the interview, it’s generally acceptable to bring a close friend or relative along but it’s highly unlikely and also inadvisable that they will be allowed to sit on the interview. Avoid bringing anyone who has an acrimonious or contentious relationship with the other parent involved as this is inviting unnecessary conflict should their paths cross.

Once the interviews are conducted, the family report can be delivered any time from seven days to 21 days. If it was ordered by the court, the completed report will go to the judge first, who will then release it to each party via their lawyer (should you have one). If the report was agreed to privately between the parents, the consultant will release it to your legal representative or, if you don’t have a family lawyer, to you and the other parent directly. Remember that the report’s contents are confidential and not to be shared or distributed with family or friends.

The advice and guidance of a legal professional experienced in matters of family law, including the family report process, can be vital in these difficult circumstances. If you have questions about any of the issues raised in this article, contact trusted family law specialists Twohill Laywers today on (07) 5562 0444 or admin@arbonlegal.com.au

De facto

What Are My Legal Rights in a Breakdown of a De Facto Relationship?

By | Family Law
Intimate relationships can take many forms these days. It’s very common for people to live together and share nearly everything in life without ever feeling the need to get married… but what is the definition of a de facto relationship, and what are your rights and entitlements should such a relationship breakdown?

In Australia, de facto couples can call on most of the same rights as a married couple in the event of a break up, including:

  1. LGBTQ couples;
  2. Married couples who start up a de facto relationship with another person;
  3. Blended families.

Depending on the circumstances of the relationship, de facto couples often reach similar settlements as married couples. With sound legal advice, people who suffer from the breakdown of a de facto relationships may seek to obtain a:

  1. suitable property split,
  2. spousal maintenance arrangement,
  3. parenting plan,
  4. regular child support payment; and/or
  5. superannuation split.

How is ‘de facto’ defined?

People who live together and are in sexual relationship are – believe it or not – not necessarily in a de facto relationship.

A de facto relationship is defined as a domestic relationship of not less than two years, but a court will make a more careful judgement of this based on an assessment of ‘genuine domestic basis’. This assessment will consider, among a number of factors:

  1. The length of the relationship and whether it is of a sexual nature;
  2. the financial dependence or independence of each party;
  3. whether the relationship include joint assets;
  4. whether there is a child or children from the relationship;
  5. the extent to which both parties are committed to a shared life.

Couples who do not live together all the time may still be considered to be in a de facto relationship, particularly if their finances are enmeshed. The Family Law Act even recognises the fact that a person can be in more than one de facto relationship at a time, even if they’re also married.

What am I likely to get?

Firstly, be aware there is a time limit of within two years of the break-up to apply for financial orders regarding your former de facto relationship.

Before the court can determine any financial dispute, you must satisfy the court you were in a genuine de facto relationship (as above) and that at least one of the criteria below is met:

  • The period for the de facto relationship was at least two years;
  • there is a child from the relationship;
  • the relationship is or was registered under a prescribed law of a State or Territory;
  • that significant contributions were being made by one party and the failure to issue an order would result in a serious injustice.

Do I have a right to some of their superannuation?

Yes, de facto couples may make a claim against the other partners superannuation either by agreement or Court Order. This can be a complicated exercise that involves ticking the boxes of strict policy requirements for each superannuation fund.

What if I can’t afford to be by myself?

If you are experiencing financial hardship as a result of your breakup, your ex may be obliged to help you make ends meet (if only for a temporary period). The success of such an application will depend on the ex-partner’s capacity to pay, as well as the applicant’s age, other income, ability to work, standard of living and whether the former relationship impaired their ability to earn an income.

What will I need to provide?

In order to get an accurate picture of your circumstances, a legal professional will likely ask you to: provide proof of:

  1. the value of all assets, liabilities and superannuation in your individual and your joint names;
  2. the value of any property held by businesses, companies or trusts in which you have an interest; and
  3. what your ex-partner earns, including all benefits and employment entitlements.

Important

If you’re unsure about whether you’re in a de facto relationship, or what you might be entitled to, we recommend you call for free legal advice before going any further.

It is very easy to run up legal fees before you even know where you stand. You will find yourself in a worse position than when you started.

Our firm will give you an indication of your legal position in one phone call, and we won’t charge you a cent.

For over 30 years, Arbon Legal Group have been providing comprehensive legal help to the people of the Gold Coast community. If you require further information or legal assistance, please contact us today for a 15-minute, no obligation advice over the phone on 07 5562 0444 or email admin@arbonlegal.com.au.

Family Court

Private Family Court

By | Family Law
Talk to anybody who’s been to Family Court for a family matter and you’ll quickly realise it’s not the answer. It’s draining, unpredictable and very expensive.

Time

If you haven’t done so already – check out our article on The Court Process.

The Federal Circuit and Family Court are so overcrowded today that you’re unlikely to get a decision on your case for up to 2 or 3 years from the time you file your first application.

No thank you!

Expensive

I spoke to a Barrister the other day who said she had been back to Court a record number of six times. SIX. TIMES. Before the client was actually able to have their case heard by the presiding Judge.

Each and every one of those attempts cost her client over $30,000 in solicitor’s fees, “barrister’s fee”, travel fees and accommodation.

What’s $30,000 x 6?

= $180,000 down the gurgler before you even get a decision.

So not only are you delayed an answer but you’re also paying for it.

Arbitration

Arbitration is Private Court.

I like this phrase because it’s akin to the medical industry – like private vs public health care. If you had the choice, would you skip the queue?

If you need an answer quickly and a resolution FAST – opt for Arbitration.

Arbitration is:

  1. Booking a date that’s convenient;
  2. Selecting the Judge (barrister or ex-Judge experienced in Family Law);
  3. Getting a decision within 14 days of the Hearing.

What’s the catch?

POSITIVES of Arbitration:

Arbitration is quick, reliable and results in a Court Order.

So why do people still opt for the public Court system?

NEGATIVES of Arbitration:

  1. The parties bear the cost of appointing a judge for the day (arbitrator).
  2. It’s only for Property matters. They can’t make decisions about parenting matters.
  3. You need a solicitor willing to engage in the Arbitration process.
Mediation

Mediation or Going to Court: Which is the Best Option in Family Law Matters?

By | Family Law
As the old saying goes, love hurts. And that’s what makes certain decisions in family law matters so difficult. One of the toughest decisions a couple has to make as their partnership or marriage breaks down irrevocably is how to end things in a legally appropriate manner. Should you try do so through mediation or just go to court? Here’s what you should know in order to make an informed decision.

An adversarial process

If you’re bitter or angry, taking your partner or spouse to court may seem like the best option. This may also seem like the best choice if you are convinced that you’re entirely right and the other person is entirely wrong. In this case, you may mistakenly believe that the judge will simply take your side and you will get everything you want.

However, you should be aware that decisions made in haste or anger may have unintended consequences. In court there is no guarantee that either one of you will get everything you want, so you may very well end up disappointed if you pursue this option. Furthermore, appealing the court’s ruling is difficult, time-consuming and expensive.

Another point to consider is that going to court is a largely adversarial process, pitting one of you against the other (or your lawyers against each other) and leaving little room for negotiation and constructive dialogue. So even if you don’t resent the other person to begin with, you may end up feeling resentful and hostile towards them in the end.

Having said all of that, there are some situations in which going to court is the only option. This is the case when:

  • you are requesting parenting orders from a family law court;
  • you are using ‘consent orders’ to formalise the arrangement;
  • there is a history of family violence or child abuse;
  • you are responding to an application to court;
  • one of you is unable to engage in meaningful participation for various reasons;
  • one of you has acted against or ignored a court order issued within the past year.

Why opt for mediation?

Flexibility is one of the biggest benefits of mediation. Even the term itself has several definitions. Mediation within the context of family law can be defined as informal discussions facilitated by friends or relatives; or a more structured process facilitated by someone with special training called a mediator.

In either case, mediation has the following goals and characteristics:

  • It is focused on constructive dialogue, healthy conversation and reaching consensus on key issues rather than finger-pointing and casting blame.
  • It is designed to help couples going through separation or divorce avoid costly and unpleasant court battles.
  • It allows you to have significant say in the outcome.
  • It allows and encourages creative solutions to reach consensus.

Mediation can be used to help  you reach consensus on key issues including:

  • The division of property (assets and liabilities);
  • parenting matters;
  • child custody and visitation;
  • spousal support and child support.

What is family dispute resolution?

Family dispute resolution or FDR is a form of mediation used only in certain circumstances. Specifically, it is used to help separating couples who are otherwise unable to agree on parenting matters reach consensus on future parenting plans. In this process, a specially trained FDR practitioner leads the discussions and ensures that the parents remain focused on the children’s needs.

Australian law mandates that separated parents try to reach consensus through FDR   before applying to a family law court for parenting orders. The only exceptions to these rules are those detailed above.

Families in need of FDR services can find them through Family Relationship Centres, Legal Aid Commissions and similar community-based organisations or government agencies. You can learn about the government-funded FDR providers in your area by calling 1800 050 321 or use the Find Local Help search to find one nearby.

Some FDR practitioners also make their service available privately. To find one, simply consult the Family Dispute Resolution Register. You’ll be able to to find information about private provider’s costs there as well.

Options for families in isolated areas include telephone or internet based FDR through the Family Relationship Advice Line or a private FDR practitioner.

You can learn more about FDR here.

The bottom line is that traditional family mediation and FDR are both worthwhile alternatives to court in family law matters. Although FDR is only used when separating families are unable to come to an agreement on parenting plans, it has a lot of the same benefits as traditional family mediation. Both offer flexibility, allow for creative thinking and focus on constructive conversation. Both are facilitated by specially trained professionals and tend to be less expensive than protracted court battles.

To learn more about the use of different types of mediation in family law matters, contact us today.