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Consent Orders

Consent orders are a very effective way to record an agreement between two separating people. Journey Family Lawyers are experts at helping you reflect your agreement in a document that is legally binding and protects your future. The basic forms for Consent Orders is available from the Family Court website for children’s matters. While the Application I would recommend getting the orders themselves drafted (or at least checked over) by a Solicitor.

Property settlement by Consent order is possible too. It is a bit harder to do though. First you should be certain that your orders are fair because the Court has to approve them. Then just fill out the Application and get your orders drafted. We are very good ( if we do say so ourselves) at getting instructions and quickly formulating the orders that reflect your agreement that will see you protected and your case resolved.

Read our property law notes here and read our resources to get a better idea of how consent orders work. Call us to speak to a lawyer for free.

Property Settlement in difficult financial times

Property Settlement . We have formulated some guidelines for a property settlement. The advice below is a general but a handy guide to first steps in a Divorce property settlement. If you need other questions answered, or need to speak to a member of our top Family Law team about your particular situation, please phone us for a free 10 minute chat, or email us on enquiries@journeyfamilylawyers.com.au for a confidential and free chat.

As if people thinking about Divorce or separation in Queensland didn’t have enough worries with the floods and the cleanup! Now we have dropping house prices and downturns in business and share prices as well. This obviously impacts on peoples’ ability to get property settlement sorted and can result in more Court cases in the Family Court. Today I thought I’d talk about some strategies to help you through and also comment on the way this has been played out in Court cases and settlement mediations throughout the past year in my firm, Journey Family Lawyers, and also what I have heard from other Family Lawyers.

In property settlement, the first step is to calculate the assets. This is easily achieved by valuing the assets or selling them! Just be careful that you never rely on old valuations where property prices are dropping, you should make sure your valuation is no more than about three months old.

If you have Superannuation, then, like shares, the value may have dropped to a disappointingly low level. This is not so easy to swallow, and the best thing you can do is accept the losses and move on. It is what it is.

Values of assets are an issue for the final stage of property settlement proceedings under section 79(4) of the Family Law Act. But what happens during the initial separation? In our article, “Separation advice: Before you go“, we talk about strategies for those early, difficult days. It helps if you think about separation in two stages, the interim, immediate stage and the long term plans and outcome that you want to achieve.

So, close your eyes and take a deep breath. I want you to visualise how your life will be after you have sorted this mess of separation out. Some people see themselves in a rented unit or house, others see themselves in their own home, bought with the proceeds of sale of the joint property, and still others plan to buy their partner out of the current joint home.

Whichever plan you have, you can see that it won’t be achieved instantly, no matter how amicable your settlement will be and however friendly your separation is. In the current housing market, you can expect to have your house for sale for over 100 days before it may sell. You may need to consider reducing prices. Don’t worry too much, because you will be presumably buying your new property in the same low market.

But, you need a short-term plan as well. One that can keep you comfortable and secure until the finances are untangled. This is the tricky one. So, a couple of FAQ’s.

The person who stays in the family home usually has to pay the outgoings, such as mortgage rates and insurance etc. I say usually, because there are exceptions, such sometimes where the children are in the home as well, or where the bank is chasing the joint mortgagors. The idea of the person who stays being responsible for the payments is one that the Family Law Cases has generally endorsed on the basis that the other party presumably has to get their own accommodation and will be paying for that.
Leaving the home does not mean you have somehow abandoned your right to have it considered in ten property settlement.
If you have a car registered in the name of one person, but it is agreed that the other person can have it in the short or long term, that is fine, but if the non registered user of the car does not pay the registration, or insurance, then it is the registered owner who may be liable.
Medical insurance is usually in the Family Rate at the time of separation. Be careful about relying on the other party to make the premium payments. I often advise my clients to check that the payments have been made each month. Ultimately you need to get separate health insurance but many people find it easier to keep it joint in the short term, especially when everything is in chaos in the early weeks of separation. This is particularly useful and important if you have kids.
Furniture, whilst important is not the be all and end all. If taking a particular piece of furniture is going to damage your relationship further than it already is damaged, you might like to reconsider. If you take the ” removal truck” option, where you take everything and just leave very little, then you should not be surprised if your ex will not negotiate with you on the rest of property settlement. Try to be very fair. It may pay off when it counts, say in property settlement or in kids matters.
Take all of your papers, and copy all of the joint ones, or take them and copy them at a later date. You can always give them back. But you may spend a lot of money with lawyers finding out information that was already available to you in your cabinet before you left.
Finally, take your photos, trophies, sewing, tapestry, music or rock collection, or whatever it is that is precious to you and irreplaceable. If it should be shared, you can give it back later, or have it valued later, but if it is one of a kind, and valuable mainly only to you, take it now, when you go. Otherwise I am afraid it may well disappear (I have seen it happen often), or be regarded as unimportant by the Judge in the final property settlement. These are the things that you will regret losing and for which money is not a substitute.

So get yourself settled in a way that you can afford, with the things such as insurances and your personal items safely with you. Don’t upset your partner unnecessarily. Make sure that between you both all the bills are still being paid. Be aware that this is just a holding pattern, and don’t let the emotion of the break-up make you foolish about these things.

Think about what you want to achieve in the future with your settlement. Reality check this with friends and then give your lawyer the goal posts. Hopefully a friendly civilised property settlement will be yours within the year!

Our firm knows the pressure that unresolved property issues brings to your daily lives and we will do everything we can to get a speedy resolution through either mediation, negotiation or if necessary, strong and decisive representation in Court.

I hope this helps, email me or send a question to Journey Family Lawyers at enquiries@journeyfamilylawyers.com.au. Someone will get back to you usually within a couple of business hours for free. Or phone us on one of the below listed numbers for a free 10 minute consultation

Kind Regards,

The Journey Team

Superannuation

Following separation people wish to make arrangement for property settlement and remember having heard somewhere that superannuation is now considered property for the purposes of family law property settlement. Sometimes people wish to reach an agreement about splitting their superannuation interests but do not know how to go about doing this. The purpose of this fact sheet is to provide you with some general advice about how the Family Courts deal with superannuation interests.

Superannuation splitting law

The superannuation splitting law treats superannuation as a different type of property to things like houses, cars and bank accounts. It lets separating couples value their superannuation and split superannuation entitlements, although this is not necessary for all people to do so. Each case is unique.

It is important to understand that splitting superannuation entitlements does not convert those interests into a cash asset – the entitlements are still subject to superannuation laws (for example, it is usually retained until retirement ages are reached). In simple terms, if you wish to receive part of your partner superannuation this does not mean you can readily convert it into cash. Only in very limited circumstances will a super fund allow you to do so, and only then, only a limited amount (known as “hardship grounds”). You must check with your Journey family law solicitor first before thinking you can access any part of your partner’s super after property settlement.

Options for splitting superannuation

Separating couples may either:

Enter into a formal written agreement to split superannuation

A formal written agreement requires that both you and your former partner instruct a lawyer who must sign a certificate stating that independent legal advice about the agreement has been given. Once this agreement is made, you do not need to go to court. The agreement is not registered in court and you must be careful that each of you retains a copy.

Journey family lawyers do not recommend that anyone enter into a “superannuation agreement” as there are many dangers and pitfalls involved in doing so. Ask your Journey family law solicitor about this if you require further advice.

Seek consent orders to split superannuation (this our best recommendation), or
Seek a court order to spilt superannuation (if you cannot reach an agreement with your former partner)

Even when an application is made to a court, it is possible to reach an agreement at any stage without the need for a court hearing, and we encourage you do to so. Journey Family Lawyers has a high success rate and reaching settlement in property matters thereby avoiding costly trials. You should ask your Journey Family Law solicitor about these options.

What you need to do to split superannuation

Step 1: Obtain valuation information

You need to get information to value the superannuation interests of both of you. You should provide the following forms to the trustee of the superannuation fund (we will usually do this for you):

Form 6 Declaration. This satisfies the trustee of the fund that you are entitled to get the information for this limited purpose, and
Superannuation Information Request Form (accompanied by the appropriate Superannuation Information Form).

The superannuation fund may (and often does) charge a fee for providing this information, and this is paid when you send the forms. The Superannuation Information Kit provides the information and the forms you need. To obtain a copy of the Superannuation Information Kit go to www.familylawcourts.gov.au or call 1300 352 000, or ask your Journey Family Law solicitor.

The information from the trustee may be enough to value the superannuation. However, the valuation of some superannuation interests can be complex. An expert may need to provide a further valuation. This often occurs when one of you works in the public sector and is a member of a defined benefit scheme. The valuation process for such schemes is often very expensive. You should ask your Journey Family Law solicitor about valuing superannuation.

How superannuation is valued

There are different types of superannuation. The superannuation splitting legislation sets out methods for valuing most types of superannuation, but there are exceptions, including:

Self-managed superannuation funds – they are generally valued with the assistance of an expert such as an accountant
Where the Attorney-General has approved a fund using a different valuation method.

Step 2: Decide the method of splitting

You have the option of either entering into a formal written agreement or obtaining a court order (by consent).

Obtaining a court order (our preferred method)

People obtain court orders about the division of matrimonial property in two ways:

By consent of the parties

If you and your former spouse have reached an agreement about property settlement (and superannuation), then a Form 11 Application for Consent Orders should be filed in the Family Court, accompanied by a consent order (often referred to as “Minutes of Consent” or “Terms of Settlement”) recording the agreement. The orders can then be made in chambers (by a judge alone) without either of you or your Journey Family Law solicitor attending court.

NB. In some rare circumstances the Court will require further information from the parties. Just because you have prepared Consent Orders and a Form 11 does not necessarily mean that it is the end of the matter. A court will only make the Orders you seek if they are “just and equitable” and are enforceable by law. The wording of superannuation splitting orders is complex and must meet strict legislative requirements. If your orders are not worded correctly they will be rejected by the registry and you will find yourself having to seek the advice of a solicitor. It is always wise to seek legal advice first, and is you wish to have super-splitting orders made, have your Journey Family Law solicitor prepare them for you to avoid delay and unexpected expense.

As a result of a court hearing.

Even if you start proceedings, you can reach an agreement at any stage and once the orders recording the agreement are made you do not need to attend court further, provided that the Court is satisfied that the orders you seek are “just and equitable”.

Either way, you need to file an Application with the Court.

To start a case in the Federal Magistrates Court we must prepare for you and file an Application, an Information Sheet and a Financial Statement. The other party will file a Response and a Financial Statement.

The information from the superannuation fund trustee will help us to complete the court forms. You must disclose all superannuation, even if you do not intend to split superannuation payments.

Informing the superannuation fund

If you are seeking court orders about superannuation, we must tell the superannuation fund trustee about the orders you are seeking. We must ordinarily provide the Trustee with 28 days written notice of the orders we seek on your behalf. The trustee must have an opportunity to attend the court hearing and object to the orders that you are seeking. This is called providing the trustee with ‘procedural fairness’.

Once the superannuation order is made, whether by consent or after a hearing, it is important to provide a sealed copy of the order to the trustee immediately.

You should get legal advice from us before deciding what to do. Our team of solicitors can help you understand your legal rights and responsibilities, and explain how the law applies to your case. Our role is to help you reach an agreement with your former partner without going to court. That is always our first preference, but in some cases, it is simply not possible for parties to agree and if that is the case, we will assist you to prepare your court case.

Family Lawyers with a Positive approach

If you need an an honest assessment of your likely outcomes and options, then call Journey Lawyers now to discuss your case for free, and perhaps book a one hour conference to find out exactly where you stand. 07 38325999

Journey Family Lawyers are leading specialists in Family Law and Defacto Law. We practice solely in Divorce and Separation, particularly property and children’s matters. Each of our lawyers has decided to dedicate their career to this type of Law and helping people through their Divorce or separation legal issues.

Our firm is different to other Family Law firms for the simple reason that our whole aim is to get you through your separation in one piece, both emotionally and financially by being proactive in each case, because we know that every day that your case drags on is a stressful one for you and your family. Each our lawyers carry fewer files than many firms require, and this means they can focus on progressing your case quickly.

We try to mediate matters as our first choice but sometimes a matter has to go to Court because one party is being unreasonable. We are not only good mediators but we are very experienced at going to Court and standing up for our clients rights to get the best outcome. Because we are specialist Family Lawyers, we understand the processes to give you the best outcome possible.

Our clients appreciate a realistic assessment of the likely outcome of their case. If you need an an honest assessment of your likely outcomes and options, then call us now to discuss your case for free, and perhaps book a one hour conference to find out exactly where you stand. These conferences cost $143.00 including GST and thousands of people have been able to use this conference to get their lives back on track. If your case needs our further involvement, then we promise to be up front about costs and work with you to keep your costs down as much as possible.

We are a city firm based in Spring Hill, Brisbane, but we are also a suburban firm with fully-manned offices on the Sunshine Coast and in Strathpine as well.

Our unique team approach means that there is usually at least 2 lawyers who know your case and, if you can not contact your lawyer for some reason (he or she may be in Court in with another client) then, if it is urgent, you can usually talk to another lawyer without having to repeat your situation.

Answers to Urgent Blog Questions

I answer every blog question personally, so sometimes you may have to wait a day or so for me to reply. If your matter is urgent, please phone our law firm to get some free advice . The firm is Journey Family Lawyers, and their number is 07 38325999 in Brisbane, 07 54431120 in Maroochydore, 07 32059000 in Strathpine.

Otherwise, check back in a day or so when I should have answered everything.

All the best,

Lynette

Hints to help you share time with your kids this Christmas

Christmas Holidays are a time when many people have concerns about arranging contact (or, “time with”) their children and the main resident parent.

For the most part, people are able to work out common sense ways to share both the holidays and the actual Christmas period. Sometimes, however, people get into disputes over these issues

For people who have Court Orders, and who have already survived one Christmas Holiday period, things will generally fall into place.

For others, though, especially if it is the first Christmas since separation and there are no Court Orders, it seems difficult to know how best to deal with everybody’s wishes. This article is for people in that situation.

The main issue is how to share Christmas Day. Some separated couples would rather avoid seeing each other on Christmas Day if at all possible. For them, an arrangement that sees the children with one of the parents on Christmas Eve and the other parent on Christmas Day seems to be a compromise that has worked for many. These people then alternate the arrangements so that, whoever missed out on having the children on Christmas Day in the preceding year can have them the next year.

Other people simply can’t bear the thought of not seeing their children on Christmas Day and for them somewhat more complicated arrangements need to be made. We usually start by finding out from our clients if their family is one that places great store on Christmas morning, or Christmas lunch or some other family celebration on Christmas afternoon.

Generally, one finds that during the marriage, the family has spent either the morning or the afternoon of Christmas Day with the Paternal Grandparents and the other part of the day with the Maternal Grandparents.

Generally, contact (or “time with”) arrangements then would follow this pattern so that the Mother, for instance, would have the children for Christmas morning to enable the children to open the presents but they would go to their Father’s for Christmas Lunch at, say, 1:00pm.

As long as nobody gets involved in any rows, you will find that children adapt very readily to the idea of double Christmas presents and double dinners!

I wish everybody a safe and happy Christmas and look forward to providing you with more advice and information in the New Year. Regards, Lynette

P.S. Journey Family Lawyers is open all over Christmas except the Public Holidays and Christmas Eve to help answer your queries.

Overseas Parenting Matters

Overseas and far away: PACE, Passports and Hague

In our practice, we often have to deal with children’s’ issues on a global scale. Here, we briefly look at:

Passports for children;
Going on holiday’s overseas;
PACE alerts;
The Hague Convention.

PASSPORTS

It is a requirement that, before a Passport is issued to a child, the written consent of all people with parental responsibility is required. If you are in a position to do so, try and speak to the other party directly first about signing an Application for a Passport. The passport Application can be located online here.

If that isn’t successful, and assuming that you have no Court Orders in place, you can then make a request in writing for ‘special circumstances’ to a Senior Officer from the Department of Foreign Affairs who will then consider it. In such cases, your application must be accompanied by:

A statement in which you state why the necessary consent has not and cannot be obtained, and explain the special circumstances relevant to the application; and
The child’s full birth certificate; and
The originals of all Court Orders affecting parental responsibility for the child.

There are some exceptions to making this request and, in this case, you are then able to bring an Application to Court seeking that a Registrar of the Court sign the Passport application on behalf of the other party. In your Application and supporting Affidavit, you must address:

What happened with the administrative process for seeking a Passport/why the administrative process was not appropriate;
Address the relevant factors under Part VII of the Family Law Act.

You must also serve a copy of your application after it has been filed on the other party to prove service.

Don’t forget to think about who should hold the Passports when they aren’t being used. If you have concerns, they can always be held in a security deposit box with both parties having to jointly sign to remove them.

OVERSEAS HOLIDAYS

So, you’ve got your child’s Passport and you are ready to go? Not quite. Before you go, you need to remember:

If you have parenting proceedings on foot or a parenting Order in place, you cannot take your child from the jurisdiction unless:

There is a specific Order that allows for overseas travel;
You have the express written permission of the other party.

If the other party does not agree to the child travelling overseas, you can bring an Application to Court to seek overseas travel. If you do so, you must be able to show to the Court:

The length of the proposed stay;
The truthfulness of your Application;
The effect of the child by depriving them of time with the other parent;
Any threat to the welfare of the child;
Any other relevant factors under Part VII of the Act.

As a matter of course, we always ask our client’s whether there is a need for an overseas travel clause so you don’t have to deal with this issue later. Make sure you advise your Solicitor even if overseas travel isn’t on the horizon at the moment.

PACE ALERTS

What do you do if the shoe is on the other foot? What do you do if you have fears that the other party will remove the children from the jurisdiction?

If you think the other party will be applying for a Passport to take the children out of the country, you can make a child alert request. This can be found here.

A Child Alert Request warns the Department of Foreign Affairs and Trade that there may be circumstances preventing the issue of an Australian Passport or other travel document to the child named on the form. It does not, however, stop a party from travelling if there is already a current Passport for the children.

If you are concerned that your child may be taken out of the jurisdiction you can:

Obtain a Court Order preventing the removal of the child from Australia;
You can provide a copy of this Order to the Australian Federal Police and they can put the children on the watch list on your behalf. This must be renewed every 6 months in order to remain effective.
You can make an urgent application to the Court which restrains the child from leaving Australia, the child’s name placed on the Airport watch list. You will need to provide the AFP with a copy of the sealed Application and Court Order in order for them to carry out the PACE alert.

However, don’t forget that, once the child’s name is on the alert, you must apply for the alert to be lifted otherwise the children will not be able to leave the Country, irrespective of who they are travelling with. A helpful Family Court brochure in relation to this can be found here.

HAGUE PROCEEDINGS

If you think that your client has already been removed from the jurisdiction, there are a couple of steps you can take:

Report the child as missing to your local police station;
Contact the Australian Federal Police to request airport arrival/departure information;
Contact the international child abduction line on 1800 100 480.

Australiais a party to the Hague Convention on the Civil aspects of international child abduction.The Hague Convention is an international treaty that tries to ensure children who are wrongfully retained in another Hague country can be returned quickly. You can find a list of Hague convention countries here.

If you have retained the children in Australia and an Application has been brought against you for their return, you should definitely seek legal advice. Always seek the advice of a Family Law specialist or specialist firm – defending Hague proceedings can become very complicated.

Communicating with your child’s other parent about schools

Parent often cannot agree over which school their child should attend.

If you are having those sorts of issues, the first thing to remember is that you need to plan to get an agreement, or a Court Order if necessary, in plenty of time before the child is due to start at the school.

This is the time of year that kids are getting ready to go to school again. It is a stressful yet exciting time, but even more stressful and upsetting for those kids whose parents are arguing about what school they should go to.

The key to avoiding disputes is to discuss your expectations with the other parent as soon as possible. In these times of shared parenting, it is inevitable that one parent may have to travel more than another. Choosing a school that is absolutely equal distance between the two homes is impossible usually.

Also there are parents who can’t agree on whether their child should attend a State School or a Private one, or even what religion the school should be. This is not something that can be decided on at the last minute. Kids need plenty of time to prepare themselves mentally for school, and they need to know which school they will be attending. If they hear parents arguing about whether one school is better than another, they may become anxious or even feel that one school may be bad for them. So get it out of the way the year before so you have time to get professional help through joint counselling, mediation or, if absolutely necessary, through the Courts.

We don’t usually recommend going to Court over something like school choice though, as it is a parenting choice really, and the Court should not be put in a position of choosing your child’s school. Of course the Court will if it has to, in order to give some certainty for the child, but the better option is for the parents to learn how to compromise and negotiate as a useful tool for navigating the other parenting decisions that they will have to make regularly for the child in the future.

Remember that Family Dispute Resolution is available to you and is, in fact compulsory before you bring any application to the Courts about your children.

Lynette

Divorce Court

It is the day of your Divorce hearing. You rise and dress with extra care. Whether you are going to be represented by a divorce lawyer or not, you are nervous. People attend Court without Lawyers in Divorce proceedings all the time. Here are some ideas to ensure that your divorce is granted and you remain free of embarrassment and stress while you represent yourself in your divorce hearing.

This article is written specifically for Australian Divorces, so I refer to Australian Divorce law. If you are in another Country, then you may find some useful general tips about your behavior. After all, judges seem to share the same desire for respect and good preparation, whichever country their Courtroom occupies.

If you go to Court with a Lawyer, then some of this information is for you too. Your lawyer will have all of the legal stress, but you need to conduct yourself with dignity even though a divorce was never part of your life plan!

The two things you need to consider when going to Court for your divorce, are firstly, to be prepared, and secondly, to be respectful.

Be Prepared:

Although you may worry about whether or not your documents are correct and whether you have done everything you are supposed to have done in relation to serving them on your spouse, there is more to preparation than simply crossing t’s and dotting i’s. You should have your documents in some sort of folder and I recommend labelling them somehow, so that when you have to refer to one in court, you can locate it quickly and easily. I prefer to use a system of sticky notes on the right hand side of the documents with the name and date of the document on it. Alternatively you could make a front sheet where all of your documents are listed with their dates, and allocated a number. The documents are then placed behind that front index sheet and the sticky notes then have the number of the document on them.

You will need to have a notepad without a cover for writing notes of dates or other things on, and two pens in case one of them lets you down.

Be Respectful:

I think respect is shown in three ways in an Australian Court.

The first is in your dress. Men should wear long pants, button shirt and dark shoes. A coat is nice to have. Jeans are not acceptable in my opinion. Women should not wear sports clothes or cocktail dresses (both of which I have seen in my career) but should wear what would be regarded as good day clothes or a business attire.

The second way respect is shown is in your speech. You should only speak when spoken to by a judge, or when he or she is looking expectantly at you and you realize he is waiting for you to respond or commence. Never interrupt a judge. When you do speak to a judge, (in the Federal Circuit Court of Australia) ) then you must use the title of ” Your Honour” and use it quite often. So you may answer “yes, your Honour” or if speaking not in response to a question, then commence with “Your Honour, I am here to” etc.

The third way to show respect in the Court is in your demeanor. Do not eat or drink anything in Court, except to sip from the water glasses on the bar table if necessary. Don’t chew gum, or eat cough lollies.

Enter and leave the Court quietly, and sit up straight. Listen to what is said, and don’t show emotion. If the divorce is granted, the judge will usually start a little speech with “I find that the Husband and Wife were married at” and so on. If your divorce is granted, or if it is not, say nothing, except “Thank you, Your Honour,” and don’t leave the bar table until someone else comes to take your place for their divorce hearing, or until the judge says “you are excused”.

Leave the Court quietly and quickly and don’t speak until you are outside the Court and away from the recording devices.

Divorce and Separation free advice blog

This website is for people who are facing Divorce or separation and want to find out as much as they can to help them through. My firm is Journey Family Lawyers, who are specialist Family and Divorce Lawyers in Queensland. They have their own website at www.journeyfamilylawyers.com.au. This is a divorce blog where you can comment and ask questions about your marriage property settlement or children custody problems.

I hope you can find the answers to your divorce issues here, if not please email us at enquiries@journeyfamilylawyers.com.au or comment on the blog or phone us on (07) 3832 5999 and we will get back to you so you can know where you stand. Don’t forget we offer free 10 minute consultations by phone too, or one hour for $143.00. I am still slogging away on my book, Divorce a new users guide, and will post bits of it from time to time. The good news is that the book should be ready for publication mid 2013, if I can keep up the pace of writing, that is!

Regards Lynette Galvin

Managing on one wage

Hi everyone! This weekend I have come across a great website where everyone is sharing their tips for reducing their costs of cooking , cleaning and living on one wage. I love it ! It shows what is possible when people support one another. The address is Click here.

If you can’t afford a lawyer

We are often asked:-

I don’t want to waste money. I can’t afford huge legal fees but I need to use a lawyer. how can I get the best value for money and keep costs down?

A. Having a lawyer saves you from ending up stuck and caught up in the same sort of fights with your ex that led to the separation. Even worse, sometimes people without legal advice find themselves agreeing to things that are less than fair.
However costs are obviously an issue. There are ways to manageyour costs if your law firm is co-operative. Journey Family Lawyers offer a service called ” unbundling” . This means that we are prepared to assist you as you do it yourself)or you can take on some work on your own behalf while we do the tricky legal stuff.

You still have us as lawyers but we can step in and out of your case as you need us.

Perhaps an example will help you understand this concept.

Say you have been served with Court Documents. You need a lawyer to prepare some or all of the documents for you, but don’t don’t necessarily need us to do the photocopying, court filing or arrange service of the documents. Or you might want us to do all those things. You would definitely want a lawyer to go to court for you but may not want to be paying a lawyer to answer tons and tons of correspondence from your ex. So you could ask us to step out of your matter until the time to prepare for the next court date. This is a much better use of your funds.

Unbundling is a concept that has been around for a while in the U S. It is unpopular with most law firms because there is a lot of Ceasing to Act notices and corresponding Notices of Address for service to be filed and it can confuse the Courts and the other side’s lawyers.I even had one lawyer tell me I shouldn’t do it! But Journey Family Lawyers have been doing it for years. It works! And our clients get to use great lawyers no matter that their budget is limited.

Children & Separation – Important Information

When a marriage breaks down, the parents generally have a lot of questions and issues about the situation and what happens to the children. This article tries to explain the more common issues and offer suggestions as to how best to deal with them. If you have other questions feel free to email us or call one of our Journey offices for a free ten minute consultation.

We have just separated, what do we do now?

It is best for everyone, particularly the children, if parents can amicably agree to parenting arrangements. You may wish to seek legal advice before making any decisions. Generally each case is a bit different and you are probably best to get some legal advice about your particular situation before agreeing to anything. At this point you may not need to engage a lawyer but you should find out where you stand. At Journey Family Lawyers, we offer an initial consultation at a flat rate of$143. The consultations generally take at least an hour and we can discuss possible arrangements for the children. There is a lot of miss-information around so it is better to get your information from the experts so you do not make a mistake.

If you feel comfortable and it is safe to do so, the next step should usually be to discuss what you propose the parenting arrangements to be with your Ex. You could do this by email, telephone or in person. Remember when discussing any arrangements that they must be in the child’s best interests. You should discuss the following matters:

Where the children should predominately live and what time they spend with the parent they don’t live with.
Changeover arrangements – where should changeover occur, who drives where, what time changeover will occur. Take into account school or public holidays if you decide changeover should occur at a child’s school.
Times for the child to contact each parent by phone when they are in the care of the other parent.
Arrangements for special days, including Christmas, Easter, Mother’s Day, Father’s Day and birthdays.
Any important decisions needing to be made including schools the children attend, medical decisions etc and how those decisions will be made (i.e jointly or by one parent – see Parental Responsibility below).

If you can agree, you can record the agreement in either a parenting plan or a Court Order. See below for information about these options.

If you cannot agree or if there is an urgent matter involving relocation or risk of harm, the next step is to see a solicitor to proceed with either mediation or applying directly to court (in urgent matters or where there are special circumstances).

If you have primary care of the children, you should also contact Centrelink and the Child Support Agency to determine your eligibility for child support and Centrelink payments such as the Family Tax Benefit or parenting payment. The Child Support Agency has an excellent website for obtaining more information about entitlements and obligations.

Best interests of the children

In parenting matters in Australia, the Family Law Act says that the best interests of the children is the deciding factor when determining parenting arrangements following separation. It is important to understand that all decisions you make regarding these arrangements should be made with the child’s best interests in mind. Under the Family Law Act (in section 60CC), there are several factors listed to consider to decide what is in the child’s best interests. The most important factors are protecting the child from harm and ensuring the child has a meaningful relationship with both of their parents. Other factors include the views of the child (given weight according to their age and maturity), the relationships the child has with each of the parents and other family members, the capacity and participation of each parent in parenting the child and spending time with the child, the effect of any changes to the child’s circumstance and the practical difficulty and expense of any proposed arrangements.

Mediation

Mediation is a compulsory step for parents who cannot agree on parenting arrangements before the matter goes to Court. Parents who attend mediation to resolve disputes will be given a certificate (referred to as a section 60I certificate). You need this certificate to file an application to Court, unless the matter is urgent (risk of harm to the child or relocation by the other party) or you are unable to attend mediation for some other reason (do not know where the other party is, the other party refused to attend mediation).

There are 3 general options for mediation:

1. Private Mediation

A private mediation is run by a Family Dispute Resolution Practitioner, generally a solicitor. You would need to pay the fees for the mediator and generally for your solicitor. We can give you an estimate of the costs involved depending on the mediator chosen. The benefit to a private mediation is that it can be arranged quickly, you have your solicitor with you (if you wish), the parties are generally better prepared for mediation and in many cases, is more likely to result in an agreement than Legal Aid Conference or Relationships Australia. Normally your lawyer can arrange that for you though of course, both parties need to be agreeable and you need agreement as to who pays the cost of the mediation.

2. Legal Aid Conference

If you are eligible for Legal Aid, a legal aid conference is a good option. You will have a solicitor present to advise you through the process. The mediation would either be by phone, from our office; or at the Legal Aid office in Caboolture, Maroochydore or Brisbane. The conference can be run as a shuttle conference, where you will not need to speak to or see the other party if safety or fear of the other party is an issue. Legal Aid may require a contribution on your behalf if you are assessed as having the means to pay, but otherwise a Legal Aid Conference is free. Legal Aid will also pay for any agreement to be made into a court order should the parties agree to it.

3. Relationships Australia mediation

RelationshipsAustraliaand other similar community organisations conduct mediation. The mediator is not a solicitor and you are not permitted to have a solicitor with you. This is a good option if you cannot afford a private mediation but are not eligible for a Legal Aid conference. It is best to seek legal advice prior to attending mediation through Relationships Australia so you are aware of where you stand. Contact Relationships Australia Queensland for any enquiries about fees and availability.

Parenting Plans or Court Orders?

Once you reach an agreement with your ex you can formalise it in several different ways. A parenting plan is a written agreement reached between both yourself and your ex and is signed by each of you. A parenting plan can deal with many aspects of parenting including, where the child shall live, when the child shall spend time with each parent, communication between the parents regarding the child, authorities for parents to access school or medical records and many other things. Whilst a parenting plan creates obligations between the parents to each other, it is not legally binding. This means that it cannot be enforced by the court. If you think there will be problems later on with the other parent keeping to the agreement, the a parenting plan is not suitable.

A Court Order is a legally binding document which creates legal obligations on each parent. If both parties agree to enter into Court Orders then this is what is called a Consent Order. A Consent Order is legally binding and if either party does not follow the Order then the other person can take them to court for breaching or contravening the Order. There are serious ramifications for breaching Court Orders.

We generally recommend Consent Orders. This is because they are legally binding; as well, you have proof as to the legal arrangements with the child.

Court Process

If you have tried mediation or if the other party is not cooperative, and you are faced with the likelihood of going to court, there are a few things to keep in mind.

Firstly in order to apply to court you are required to prepare and file documents in the court advising of what orders you are seeking and the background of the dispute. Once you file these documents you will be given a first court date. This court date is generally between two to three months after you file the material. You then serve a copy of your material on the other party who then responds to this, generally before the first court date.

On your first court date, the court does not make final parenting Orders. They are only able to make interim (or short-term Orders). These Orders include time arrangements and also cover procedural issues. For example, at this point the court may order that a Family Report or a Psychiatric Report be prepared or that an Independent Children’s Lawyer be appointed. These reports are designed to assist the court in making an informed decision as to what is in the best interests of the children.

A Family Report is a document that is prepared by an independent Family Consultant. These people are generally social workers or psychologists and are experts in the field. The Family Consultant’s role is to meet with the parents and the children, and any other significant people and to make recommendations about what is in the child’s best interests. This report is a valuable piece of evidence for the court and is generally considered very important by the Judges.

An Independent Children’s Lawyer is a lawyer who is appointed to represent the children’s interests only. They generally do not meet the children or take instructions from the children, however they undertake a forensic role in investigating what is in the children’s best interests. This could include arranging for experts to do reports (ie Family Reports or Psychiatrists or others), issuing subpoenas (to get records from organisations such as the Police or DOCS) and making recommendations to the court based on this information.

Once the necessary investigatory steps have been taken and reports obtained then if the parties are still unable to agree on an outcome, the court will have a trial. At the Trial both parents are required to give evidence in court (the children are not), along with any experts or other witnesses. At the conclusion of the trial the court determines what is in the children’s best interests and makes an Order.

The court process can be lengthy and if your matter requires a trial it can take a long time to get to that point. What is encouraging however is that 95% of Family Court matters resolve without the need to go to Trial. At any point during the Court process, if the parties reach an agreement you are able to enter into Consent Orders and therefore no longer continue through the system.

Parental Responsibility and ‘shared care’

The term “equal shared parental responsibility” is one used very regularly in family law. Equal shared parental responsibility refers to the responsibility for making long-term decisions for the child. Long-term decisions include schooling, religion, medical procedures or changing the child’s name, amongst other things.

The term, “equal shared care” refers to where the children live; in the shared care arrangement, it means 50/50 or equal time living with the each of the two parents.

There is a presumption under the Family Law Act that both parents shall have equal shared parental responsibility unless there is family violence, child abuse or some other special reason not to do so.

Whilst many parents who are separated do not get along particularly well, this does not mean they cannot make decisions jointly and therefore in only a small number of matters does the court give one parent sole parental responsibility.

If the court orders that the parents should make long-term decisions jointly then the court must consider whether a “shared-care” arrangement would work (meaning an arrangement whereby the child lives with each parent 50% of the time). In many circumstances a shared-care arrangement is not in the children’s best interests and in these cases the court then considers an alternative arrangement. For instance, a common arrangement is for the children to live with one parent and spend every second weekend with the other parent, plus one night during the week, plus half school holidays. If you are not sure what is appropriate or whether what you are proposing is reasonable, you should consult a lawyer.

Location and Re-location

Where the children live is a long-term decision which generally needs to be made by both parents. If you are considering relocating, there can be very serious ramifications to this if you do it without the other parent’s written consent or without a Court Order. If you are considering relocating we strongly recommend that you obtain legal advice before making this decision or taking any action. If you do not do things properly, you can not only make it worse for yourself but in some instances, have the child taken away to live with the other parent.

On the other hand, if the other parent has moved away with the children and it affects the children’s ability to spend time with you, it is important to act quickly. In some instances you can obtain a recovery Order requiring the other parent to return the children, however if you delay this and do not make this application straight away, you are less likely to be successful. We recommend that you get legal advice straight away if you are faced with this situation.

Domestic and Family Violence

Sadly in many families children are exposed to domestic and family violence. This is treated very seriously by the courts.

If you are experiencing domestic violence, which includes physical and psychological abuse, harassment, intimidation, threats or control then you need to consider whether you should apply for a Protection Order. A Protection Order is an order made by theMagistrates Courtand can impose a number of obligations on the offender, this includes that they must be of good behaviour to you and not commit domestic violence, that they may not be able to contact you or to go to your house or workplace, and many other conditions. You are also able to apply to have your children or other relatives or associates named on the order as protected persons.

A Protection Order is serious and if the other person breaches a protection order and is convicted, it is a criminal offence.

You are able to apply for a Protection Order yourself, however it is often a good idea to get legal advice and assistance so that you have the best chance of success.

Domestic and Family violence is considered in all parenting matters before the Family or Federal Magistrates Courts. If there is domestic or family violence the court is required to consider the impact of this on any parenting order that is made.

Remember however, that the fact there is domestic violence between the parties, does not mean the children will not be allowed to spend time with the other parent. The Family Law courts look at each case on their merits (violence against the children by a parent is however taken very seriously).

Legal Aid

If you have a low income or are in receipt of a health care or pension card and you have a substantial issue in dispute, you may be eligible for legal aid funding.

You can make an application for Legal Aid to assist with your parenting dispute or your domestic violence matter. If you are granted Legal Aid for your parenting matter this will often be to attend mediation (or a Family Dispute Resolution Conference as it is referred to). If this is unsuccessful you may then obtain funding to go to court (apart from in exceptional circumstances where you may need to apply straight to court).

In some circumstances although you are awarded a grant of legal aid funding, you may be required to pay an initial contribution. This is based on your income and is assessed by Legal Aid. We can assist you with applying for Legal Aid funding as we are a Legal Aid preferred supplier.

You can apply for Legal Aid either through Journey Family Lawyers or directly through Legal AidQueensland(you can request that your matter be assigned to our firm).

Helpful Organisations

Legal Aid – 1300 65 11 88 – for assistance with funding legal proceedings;
Relationships Australia – 1300 364 277 – can arrange counselling or mediation in some circumstances;
DV Connect – 1800 811 811 – provide you with support and assistance in circumstances where you have experienced domestic violence;
Centrelink – 136 150 – assist with parenting payments and other income-tested pensions;
Child Support Agency – 131 272 – assess child support liabilities and can collect this on your behalf.

Children and Recovery

Urgent Applications

We all can appreciate that the stress of a marriage breakdown can take its toll on not only the parents, but most importantly the children involved. From our experience, most people can come to suitable arrangements in regards to parenting matters without the Courts intervention which in turn provides less stress to all involved. However, unfortunately there are parents who take the law into their hands without really acknowledging the serious repercussions. In most circumstances the motive behind their actions is to control the other parent and disregarding what really is in the best interests of the children.

This paper will deal with urgent applications, in particular, recovery orders and what is known as “PACE” alert applications.

Recovery Order

In some circumstances immediately post separation, a parent will “run off” with the children without any parenting orders in place or any proper arrangements in relation to the children’s care, welfare and development.

What is a “Recovery Order”?

A recovery order is defined in s67Q of the Family Law Act 1975 which is essentially an Order from the Court requiring the children to be returned to a parent of the child, a person has parental responsibility in relation to the children or to a person who has an existing parenting order that provides for a child to live with or spend time with that person.

This therefore extends to not only the parent with whom the children are currently living but to parents who by law have parental responsibility for the children.

In the event that a parent absconds or removes the children from the children’s usual surroundings, the other parent will usually have standing to bring an Urgent Application to Court for a Recovery Order. If the Court is satisfied that the children have been removed unilaterally by that parent, the Court can Order that parent and the children to return by a certain type (usually within 7 days) and in the event of non-compliance, that a recovery order issues. This will involve an Order to authorise or direct a person or persons, such as State Police Officers and the Australian Federal Police to take any appropriate action to find, recover and deliver the child/ren to the other parent (usually the parent who brought the Application).

A further order is usually sought in the Application to prohibit that person from again removing or taking possession of the children again. In the event that a parent again removes the children, a recovery order can authorise the arrest (without warrant) of the person who again removes or takes possession of the children.

Who can apply for a Recovery Order?

It is a general misconception that only the biological parents of the children can bring a recovery order application. Persons who have standing to bring a recovery order application include: a person who the child/ren live with, a person who the child/ren spend time with, a grandparent of the child, a person who is concerned with the care, welfare and development of the children (even where there is no parenting order in place that provides for this arrangement).

After a couple separate, it is understandable that both parents become very emotional and make wrong decisions that can, and in most circumstances, will have detrimental effects that ultimately affect the children. Before separation, it is wise to discuss the arrangements regarding the children to prevent any applications of this nature being brought by the other parent.

How do I apply for a Recovery Order?

You should first seek legal advice from one of our dedicated family lawyers. We can evaluate the situation for you and advise you as to what avenue you should proceed with.

You should bear in mind the legislative changes that have been introduced in regards to parenting matters. It is now a requirement that both parents participate in Compulsory Family Dispute Resolution and make a “genuine effort” to resolve the dispute before commencing any Application in Court regarding Parenting matters. If negotiations are unsuccessful, and provided the parties made a genuine effort to resolve the dispute, then a s60I certificate will issue. This certificate is required to be attached to an Application for Parenting Orders to show the Court that the parties have in fact attended Compulsory Family Dispute Resolution.

However, there are exceptions to the requirement of a s60I certificate. The exceptions are:

Where the matter is urgent;
Where there is family violence;
Where there is child abuse;
Where there is a risk of family violence and/or child abuse; and
Where it is not practical for one party to attend.

It is also now a requirement that if a certificate is not filed with an Application, that a further Affidavit be completed to state the reasons why a certificate is not attached and the exception that is relied upon.

In the event that we believe you should commence an Application for a Recovery Order, we would seek an urgent hearing and rely on the exception of “urgency” to proceed without the s60I certificate. We are of the view that you should include in your affidavit material that you are prepared to attend compulsory family dispute resolution at a later stage (usually after the children are returned).

What is the process?

Firstly, you should meet with one of our experienced family lawyers for advice.

We will then prepare your Application for a Recovery Order and obtain a statement from you regarding the relationship history, the parenting arrangements since separation, attach any orders that have been contravened and state the urgency of the matter.

We will then ask for an urgent listing of the matter and in the writer’s experience (the Court will usually list the matter, if it is in fact considered urgent, within approximately 7 days).

In the event the other parent’s location is known, then the Court will require that the other parent be served with the Application to allow them natural justice to respond to the Application. However, if the address of the other parent is not known, then the Court will usually list the matter to proceed “ex parte”, which essentially means without the other parent being heard or present at the hearing.

Contact your Journey Family Lawyer to know where you stand.

“PACE” Alert Applications

Given that Australia is a very multicultural country we can all relate to the ever-increasing number of multicultural relationships. This often raises the serious concern that a former spouse may abscond with the children to another country without the other parent’s permission.

We strongly advise you to receive legal advice as soon as possible if you are concerned that your children may leave the Commonwealth of Australia without your permission.

You can appreciate that different countries have different Family Law legislation and can cause serious dramas where there are significant disputes in relation to where a child or children should live. To ensure there is some consistency regarding the laws governing child abduction, there is what is called “The Hague Convention”.

The Hague Convention is a treaty between countries regarding the important issue of international child abduction. Australia is a member of the Hague Convention.

What countries are members of “The Hague Convention”?

The list of Hague Convention countries is subject to change. However, the updated list (as at 1 January 2013), can be found here.

What are the Requirements for the Hague Convention to Apply?

The Hague Convention will only apply to countries that have voluntarily signed up to the convention. There are three important elements that need to be proved for the Convention to apply and they are:

The child must be under 16 years of age;
The child must be ordinarily resident in a country (that has signed up to the convention); and
The removal of the child is unlawful

Although a Country may be a signatory to the Hague Convention, I’m sure you will agree that if there was a process that could prevent the children leaving in the first place, you would definitely exercise that option. Well, there is and that process provides for a child or children to be entered onto an Airport Watch List by an Order of the Court.

Airport Watch List

Essentially, the Airport Watch list is a system designed to prevent a child/ren from being removed from outside of the Commonwealth of Australia without the Consent of the Court or the other parent. It is effectively an injunction retraining a person from leaving the Commonwealth of Australia with the children. In the event, that a parent removes or attempts to remove the children from the Commonwealth of Australia can be sentenced to up to three (3) years in prison.

I have concerns that my children may be removed from the Commonwealth of Australia without my consent – what can I do?

First, you need to seek urgent legal advice from one of our experienced family lawyers. We can prepare an urgent application to the Court asking that the names of your children be placed on the Airport Watch list. Of course, the Court will need to be satisfied that there is a serious risk of removal of the children from outside the Commonwealth of Australia. These types of Applications will usually proceed ex parte. This is because the best interests of the children are the Court’s paramount consideration and given the recent family law amendments, there is now a presumption of equal shared parental responsibility and the children do have a right to have a meaningful relationship with both parents.

If a Court is satisfied, the Court will make an Order by directing the Australian Federal Police to place the name of the children on the Airport Watch list.

What if my former partner and I consent to the children temporarily travelling overseas but their names are still contained on the Watch List?

The children’s names may only be removed from the Airport Watch list with a Court Order. That Order will discharge the Order or the Specific Paragraph which initially restrained the party from removing the children in the first place.

The Court can make Orders which will allow the children to travel for a certain period of time with one of the persons concerned. We advise that you should have these details organised with your legal representative.To know more, please do not hesitate to contact your Journey Team to know where you stand.
– Journey Family Lawyers.

Domestic Violence

We find that the biggest problem with Domestic Violence is getting people to recognise when they are victims or perpetrators of Domestic Violence.

Having said that, it is also important that the term not be used indiscriminately and that Domestic Violence orders are not sought just as a weapon in Children’s matters either negotiation or litigation.

I have found the best definition and description of Domestic Violence and the cycle of Domestic Violence is this one:

http://www.fremantle.wa.gov.au/dvc/cycle.html

Remember, both men and women can suffer and perpetrate Domestic violence but it is usually more difficult for a man to admit he is the victim of DV and more difficult for others to accept that he is.

Just remember that Domestic Violence also includes verbal and emotional and financial abuse and you will see that little dainty women can sometimes commit DV on big strong men. It happens, however, that there is far more abuse committed by men against women.

There are steps you can take, and you should consider whether or not taking out orders against the perpetrator will improve the situation or make it worse. Sometimes, leaving the situation is a better option and makes more sense. It takes courage to leave and not be talked into going back ( see the cycle of violence above). If you know someone who needs to leave ( in your opinion) because of abuse by their partner, you ill soon discover that they will not go until they are ready. They need to recognise that they are in this situation before they can begin to take steps to resolve it.

You should tell your lawyer if you are scared of your partner. It will impact on the way that we look after your case. We need to keep you safe.

Call us and make a confidential appointment for $143.00 YOu dint have to give us your address, and we will not send you anything. you pay on the day, and that is the end of it, until you decide you need our services. we can tell you where you stand, and the likely outcome of childrens matters and property settlement.

We can apply for legal aid on your behalf, and if necessary, tell you how to go about obtaining a Domestic Violence Order.

We often act in Domestic Violence matters in the magistrates Courts and are very experienced lawyers to have on your side in a crisis. If you have been wrongly accused of Domestic Violence we can help you too.

If you are ready to begin to take your life back, then we are ready to help.