Is mediation a good idea?

The Family Court resolves parenting and property disputes between parties by applying inflexible rules. This inevitably produces a perception of winning and losing. The Family Court process involves the parties confronting each other in Court, a judge considering the evidence and then, based on pre-determined rules, imposing a binding decision on them. The parties have…

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Duty of disclosure in property and financial cases

The parties to a property and financial case must give each other full and frank disclosure of their financial circumstances. This includes information recorded in a paper document or stored by some other means such as on a computer storage device.

Family lawyers are often asked what documents are covered by the duty to give disclosure. The answer to this question can be found in Chapter 13 of the Family Law Rules 2004.

Relevant documents include those which deal with each party’s:

1. earnings and income sources.
2. vested or contingent interest in property.
3. vested or contingent interest in property owned by a legal entity (such as a corporation, trust, partnership, joint venture business or other commercial activity) that is fully or partially owned or controlled by a party, and any income earned by such legal entity.
4. other financial resources.
5. interest in any trust.
6. disposal of property (whether by sale, transfer, assignment, or gift) that may affect, defeat or deplete a claim (unless made with the consent or knowledge of the other party or in the ordinary course of business):

  • in the 12 months immediately before the separation of the parties; or
  • since the final separation of the parties.

7. liabilities and contingent liabilities.

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How does the Family Court decide the outcome of parenting disputes?

Parents and any other persons concerned with the care of children are encouraged to try and agree matters concerning the children in their care, and to use the legal system as a last resort rather than a first resort. This often means that the parties to a parenting dispute will be required to attend Family Dispute Resolution, to try and agree a parenting plan, prior to making an application to the Family Court for a parenting order.

Before attending Family Dispute Resolution, the parties should consult with a Family Lawyer to help them understand how the Family Court would resolve their dispute in the absence of agreement. An understanding of the way in which the Family Court is required to approach parenting disputes and the types of parenting orders it can make, will often help the parties to put forward child and future focused proposals during Family Dispute Resolution, rather than proposals which are unreasonable, unworkable, and based on their own needs.

The Family Law Act 1975 requires the Family Court to regard “the best interests of the child as the paramount consideration” when deciding what parenting orders to make, including whether parents should have equal shared parental responsibility and equal time or substantial and significant time with a child.

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Parent Relocate With a Child

Can a Parent Relocate With a Child to Another Location?

It is not uncommon for people to consult a family lawyer about what happens following the breakdown of a relationship, where one parent wants to relocate with a child to another location.

Some reasons for relocation are that one parent:

  1. Wants to return to the place they are originally from to be closer to family and friends;
  2. Wants to progress their career and provide a better life for themselves and the child; or
  3. Has entered a new relationship with a person who plans to move to or already lives in the new location.

A parent wanting to relocate, cannot simply pack up and take the child with them. The first step should be to speak to the child’s other parent and see if there is any way they will consent to the relocation.

The non-relocating parent may be more likely to consent, if they are offered more flexible time or longer periods of time with the child, particularly during school holidays.

If the parents are having difficulty reaching an agreement, one option would be to attend ‘Family Dispute Resolution’. Family Dispute Resolution Practitioners have experience in dealing which such scenarios and may be able to offer solutions the parents have not considered.

If the parents cannot reach an agreement, the only option left for the proposed relocating parent, is to make an application to the Family Court. Factors which the Court will weigh up when reaching a decision include but are not limited to:

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Child on an Overseas Holiday

Can I Take my Child on an Overseas Holiday?

A common question a family lawyer is often asked by a parent, is what do they need to do to take their child away on an overseas holiday following separation.

To travel outside of Australia, a child needs a passport.

To obtain an Australian passport, the parent planning to travel overseas with the child can either make an application to the Department of Foreign Affairs and Trade (DFAT), or in the circumstances set out below, make an application to the Family Court.

Application to DFAT

The travelling parent must ordinarily obtain the consent of the other parent for the issue of an Australian passport. An application to DFAT may however succeed without the other parent’s consent in circumstances where:

  1. Special circumstances exist;
  2. The physical or psychological welfare of the child would be adversely affected if the child cannot travel internationally;
  3. The child is required to travel due to a family crisis;
  4. The other parent cannot be contacted within a reasonable period prior to travel; and
  5. The child departed Australia less than 12 months prior to the application and DFAT considers the child requires a passport or travel document to return to Australia.
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Sole And Shared Parental Responsibility

Differences Between Sole And Shared Parental Responsibility

When a couple who have children separate, one of the most important things that will need to be decided, following discussion with their family lawyer, is who will have parental responsibility for the children.

Parental responsibility means all of the duties, powers, responsibilities and authority which by law, parents have in relation to their children.

Both parents are legally responsible for their children until a parenting order or plan provides otherwise.

Parenting plans are not recommended, mainly because they are not legally enforceable unlike an order.

In Australia, unlike some other countries, sole parental responsibility is not often ordered in favour of one parent. Australian courts apply a presumption that it is in the best interests of children for their parents to have equal shared parental responsibility.

This presumption is not about the amount of time that children are to spend with each parent.

The Family Law Act 1975 provides that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent (or person who lives with a parent) has engaged in:

  • Abuse of a child.
  • Family violence.

A parenting order for equal shared parental responsibility requires each parent to consult with each other about any major long-term issues and make a genuine effort to reach a joint decision about it. Major long-term issues include:

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Who the Children Will Live With

How Does the Court Decide Who the Children Will Live With?

Although it’s not a pleasant subject to talk about, divorces and separations happen across Australia every single day. Unfortunately, many separating partners have children together, which often gives rise to child custody disputes.

In many family law cases, child custody disputes end up in court, where a decision will be made regarding who the children will live with. There are numerous factors that are taken into consideration during this process. In the rest of this article, we’ve outlined some of the main things that the court will look at when deciding who gets custody of the children.

The Children’s Best Interests Will Be Considered

For starters, the court will carefully consider what sort of living arrangements will be in the children’s best interest. This includes things like which parents they are most comfortable with, who can provide a safe living environment, and where they want to live. If one parent has been the primary caretaker or the child or children, the chances are that they will get custody.

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Can I Take My Children Away on Holiday

Can I Take My Children Away on Holiday?

Child custody arrangements can be complicated, which means you need to be careful doing things like taking your children on holiday or going travelling. Even seemingly innocent actions can have significant consequences if you’re found to be breaching a parenting order set in place by the courts.

All family lawyers will tell you that it’s even more important to understand your rights and obligations if you’re considering international travel with your children. In most cases, you will have to seek the other parent’s permission, so it’s best to start discussions early to ensure the outcome you want.

In the rest of this article, we’re going to look at two different scenarios to help you understand whether or not you can take your children away on holiday. As always, speak to our team if you would like more specific information about your exact situation.

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Virus

Corona Virus Update

In the wake of the current COVID-19 outbreak, we take this opportunity to provide an update about what we are doing as a company to safeguard our staff and clients. As of Wednesday, 25 March 2020, we have moved to a fully remote operational model, which means that all of our staff are working from…

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Mother Lose Custody of Her Child

Can a Mother Lose Custody of Her Child?

Child custody disputes can be long and drawn out. However, resolutions are inevitably reached with the assistance of a court if necessary, and in complicated cases, mothers are often awarded full custody.

What many people don’t realise is that it’s easy to lose custody of a child. Even single mothers can lose custody if they do the wrong thing, and there are numerous circumstances that can lead to this. In the rest of this article, we’ve looked at some of the common mistakes that can lead to a mother losing custody of her child. These include:

  1. Neglecting Your Children

Unfortunately, many single mothers become so overwhelmed with life that they end up neglecting their children. This neglect can come in various forms, including not providing adequate food, clothing, and other necessities.

Under some circumstances, this neglect can be caused by drug or alcohol abuse. And, unfortunately, these are major red flags that can quickly lead to a mother losing custody of her child.

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Family Dispute Accreditation

Family Dispute Accreditation

We are pleased to announce that our principal, Mark Davies, has recently been accredited as a Family Dispute Resolution Practitioner and a Nationally Accredited Mediator.

He has also become a member of the Australian Institute of Family Law Arbitrators and Mediators.

With over 25 years of experience as a lawyer, working in the area of Family Law, Court proceedings and Disputes, Mark felt that the time was right to expand the service he could offer to his clients – by acting as an independent Mediator, to help them to try and resolve their disputes in an informal manner and avoid the need for court proceedings.

Mark’s accreditation comes at a time when the Australian Law Reform Commission has recently published a report titled Family Law and the Future – An Inquiry into the Family Law System which makes the following recommendations (amongst others) in terms of proposed amendments to the Family Law Act 1975 (Cth) (Act):

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Father Getting Full Custody

What Are the Chances of a Father Getting Full Custody?

It’s a major family law misconception that it’s impossible for fathers to get full custody of their children after a separation. In fact, it’s entirely possible, especially if the father in question can show that the other parent is unable to provide adequate care.

Although you may not believe it, Australian law doesn’t inherently favour the mother in child custody disputes. This means that, as long as you present your case to the court properly, there’s every chance that you may be able to get full custody as a father.

In What Situations Will Full Custody Be Awarded?

When talking about child custody disputes, it’s important to realise that every case is different. In general, co-parenting is seen as the best way to move forward after a separation. But, there are certain situations where this isn’t the best option for a child’s health. In these cases, the father may be awarded full custody over the mother.

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Parenting Orders

Parenting Orders

On 6 September 2019 the Full Court of the Family Court of Australia delivered its judgment in the matter of Ellwood & Ravenhill [2019] FamCAFC 153.

The relevant factual background was as follows:

  • Mr Ravenhill (the father) commenced co-habitation with Ms Ellwood (the mother) on 1 June 1999 and they married on 2 February 2001.
  • Their daughter was born in 2002 and their son was born in 2003.
  • The parents separated on 16 January 2008 and entered into parenting orders regarding parenting arrangements on 26 November 2008.
  • The initial arrangement was that the children were to live with the mother from Saturday until Wednesday and with the father from Wednesday until Saturday until 2009 when the children would then commence to live with each parent on a week about basis.
  • Over time, the parenting arrangements changed informally, but immediately prior to the father filing an Initiating Application on 19 October 2018, the son was spending no time with the mother.
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Do Not Comply With Parenting Orders

What Happens if I Do Not Comply With Parenting Orders?

In complicated child custody disputes, the Australian family court may impose detailed parenting orders that outline the responsibilities and rights of each parent. In general, these are designed to be easy to follow, and most parents don’t have any problems with them.

However, people don’t always agree with parenting orders, and it’s not uncommon for a parent to put their interests ahead of the child’s. But, what can happen if you don’t comply with a court-imposed parenting order?

Well, in the rest of this article, we’re going to have a closer look at just that. We’ve outlined some of the consequences of not following a parenting order, along with other relevant information.

Is a Parenting Order Legally Binding?

If your parenting order has been imposed by a court, then it will absolutely be legally binding. This means that there can be significant ramifications if you break it. Ultimately, family courts are responsible for making sure their orders are followed, and there are consequences for breaking them.

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De Facto Maintenance

De Facto Maintenance

1. What is a De Facto relationship?
Section 13A(1) of the Interpretation Act (WA) (1984) (Interpretation Act) defines a De Facto relationship as a relationship (other than a legal marriage) between 2 people who live together in a marriage-like relationship.

2. Does a De Facto relationship exist?
Section 13A(2) of the Interpretation Act provides that the following factors are indicators but are not essential when making a determination:

  • The length of the relationship;
  • Whether the 2 persons have resided together;
  • The nature and extent of common residence;
  • Whether there is, or has been, a sexual relationship;
  • The degree of financial dependence or interdependence, and any arrangement for financial support;
  • The ownership, use and acquisition of property (including any property owned individually);
  • The degree of mutual commitment to a shared life;
  • Whether the 2 persons care for and support children;
  • The reputation, and public aspects, of the relationship.
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Child Support Scheme Assessment

Child Support Scheme Assessment

Departure from Administrative Assessment under the Child Support Scheme Western Australia

An application for a change of assessment can be made to the Child Support Agency (CSA) by either the carer of the child or by the parent liable to pay child support.

Before making a change to an administrative assessment the CSA must be satisfied that:

  • One of the grounds for departure has been
  • It is just and equitable to change the assessment as regards the child, the care to whom child support is paid, and the liable parent.
  • It is otherwise proper to make the change.

The three categories of grounds for departure (contained in the Child Support (Assessment) Act 1989 (Cth)) have been broken down into 10 reasons for changing the assessment by the CSA on its application form as follows:

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Child Support Scheme WA

Child Support Scheme WA

The Child Support (Registration and Collection) Act 1988 (Cth) established the Child Support Agency (CSA) as the collector of periodic maintenance.

The Child Support (Assessment) Act 1989 (Cth) established a system of administrative assessment of child maintenance liability pursuant to a statutory formula.

Enforcement of Child Support
As well as collecting child support, the CSA may also enforce the payment of unpaid arrears. The CSA’s powers of enforcement include collection of debts by way of automatic deduction from salary or wages and the seizure and sale of property. Additionally, deductions can be made from social security benefits and allowances.

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