familylawyer - Successful Co-Parenting

Top 10 Tips for Successful Co-Parenting

The term “co-parenting” is used to describe a situation where two parents work together to raise a child following separation, divorce or changed living conditions. Both parents maintain some type of shared responsibility, equal or otherwise, as a protection of the child’s right to continue to receive care and love from both parents.

Lynette Galvin, our Accredited Family Law Specialist and Family Lawyer, has seen lots of co-parenting successes. But she’s also seen co-parenting fails, including her own. Lynette understands the world of co-parenting because she lives it everyday as a stepmother. Therefore there’s no one more qualified to assist you in your co-parenting journey. Here are Lynette’s top 10 tips for successful co-parenting.

1. Do not relay messages through your children

Try to communicate directly with your ex-partner and avoid asking your children to relay messages on your behalf. Co-parenting is about working together, and if you show your kids you cannot talk directly with your ex-partner, you’re sending the wrong message. Furthermore, asking a child to relay a message could be somewhat distressing to the other parent. Messages such as “Mum says you should be putting us to bed earlier”, put a lot of pressure on them. Protect your child’s comfort and deliver the message yourself. If you primarily communicate through text or email, remember that tone and intention can often be misconstrued.

2. Keep conversation to the point and business-like

familylawyer - Successful Co-Parenting

While it’s important that you speak directly and often to your ex-partner, it’s also important to keep things brief and matter-of-fact. This is especially so if your conversations tend to lead to an argument.

Stick to the facts and what directly impacts them or the kids. Avoid rolling your eyes, a disbelieving shake of the head, tutting, or any other gesture that can be just as hurtful as name calling. If you do slip up, apologise immediately. You’re in the business of taking care of your children, so try to speak or write to your ex-partner as if they are your business partner. That means being cordial and respectful.

3. Only speak positively

When you make a conscious decision to speak only in positive terms about your ex-partner (at least in front of the kids – we know some venting is needed), you allow your kids to grow up with feelings of respect and admiration. These feelings are crucial for their wellbeing and comfort.

The only person you have control over is yourself. Even if your ex-partner doesn’t show the same courtesy by speaking positively of you, try to take the high road. Learning to ignore a badmouthing ex-partner will result in a big family payoff.

If your ex-partner has something bad to say, be careful with your response. Explain to your kids that sometimes people say things they don’t necessarily mean when they’re upset, and then advise them that you’ll talk it over in private. Whatever you do, don’t lash back with name calling. Model the best way to respond to difficult situations with maturity and integrity and your children will respect you for it.

4. Be considerate

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Even though you are no longer together, you are allowed to care for your ex-partner. That said, you need to give your ex-partner time to understand and process the breakup. You might be feeling okay about things but how people deal with a break up of relationship varies enormously. Your ex-partner might be hurting and you should consider this and allow them time to get over you. Be polite and respectful and if they don’t want to talk at first, don’t push. Explain that you are open to communications any time they are ready and sincerely ensure that if there is any time they would like to talk that you’ll be there.

Being considerate also includes letting your ex-partner know about school functions, being flexible with schedules and asking them for their opinion. Recognise that working together means putting your kids first and that it requires sacrifice. Not easy for either of you, but necessary.

5. Back off when it’s not your time

It’s fine to want to know what your kids are up to when they are with your ex-partner and it’s also okay to try and coordinate schedules. Nevertheless, you must try to avoid intruding on your ex-partner’s time with the kids. Avoid scheduling children’s activities on the other parent’s time without clearing it with them first and don’t call or text too often. Pick your battles and don’t pull up on every small component of parenting you would have done differently. If your ex-partner took the kids to McDonalds or sent your son to a birthday party in a dirty T-shirt, is it really the end of the world?

6. Refrain from exposing your fears

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Talking to your kids about emotions and helping them to understand what effect they can have on others is important for building a healthy emotional vocabulary. Crying is a natural and normal thing to do, but it has its time and place. Following a relationship breakdown, kids are feeling scared. Seeing you cry teaches them that you care and that the breakup matters, but if you are crying everyday it can be quite frightening for your kids. Children need to know that everything is going to be alright, even when you’re not sure it is. Teach them that being upset is okay, but when you feel the waterworks coming on repeatedly, slip into the shower to hide some of your pain.

7. Think about the future

There are bound to be times when it all seems too hard. You will want to scream and shout and declare that you are “done”. But think about the future. Imagine your child’s graduation, their wedding, or the day they give birth to their first child. If you show unreasonable behaviour now, will it prevent you from standing beside each other on these special occasions? If you’d like nothing more than to make your child happy on these momentous days, take a deep breath and keep calm.

8. Leave decision-making to the parents

Whether you’ve entered a new relationship or your mother is on your case about needing “more time”, “less time”, “more money” or a “cleaner home”, keep parenting decisions between you and your ex-partner. Other people are entitled to show some angst, but their angst shouldn’t impact how you choose to co-parent. You and your ex-partner are the only parents involved. If someone else doesn’t respect that, show them how strongly you feel about the matter.

9. Never air your grievances on Facebook

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Unlike a private conversation, aired grievances on the internet remain there forever. Something you write in haste or after a few wines might seem harmless at the time, but it can haunt you for years to come. Keep the relationship between you, your ex-partner and a few close confidants. If you need to vent, see a professional. No good will come from a vent on Facebook. We promise you that.

10. Make the most of your free time

When the kids are going to your ex-partner, make a plan! Sitting around and moping will only highlight the negative aspects of the situation, leading to hurt feelings. Plan to catch up with friends, go watch a movie, do the housework or go to the gym – any activity that will keep you busy and gives you some all important “me” time.

Think forward with Journey Family Lawyers

Lynne’s biggest piece of advice? Foster positive transitions for yourself, your ex-partner and your kids by engaging with Journey Family Lawyers Brisbane. You’ll receive specialist care so that you can work together harmoniously while keeping costs down.

Understanding the Divorce Process, with Clickable links to help

Are you thinking of getting a divorce and want to know what the process is like? If you live in Brisbane or North Brisbane there are five key steps in the divorce process you should know about, and it’s important that you understand what each one entails before you get a divorce. This includes filing for divorce, property settlement, and managing co-parenting after separation. You should also seek legal help when you get a divorce, especially if you’ve got children and joint property.

Divorce and separation

The Federal Circuit Court of Australia has the jurisdiction to deal with divorces under the Family Law Act 1975. When granting a divorce, the Court doesn’t consider the reasons for the divorce but simply recognises that the marriage has ended due to a breakdown and the parties will not get back together.

If you have children under 18 years of age, the Court will only grant a divorce if you’ve made proper arrangements for them.

Who can apply for a divorce?

In Australia, you can apply for a divorce if you and/or your spouse meet one of the following criteria:

  • You consider Australia your home country and will live in it permanently or
  • You’re an Australian citizen or
  • You normally live in Australia and have done so one year before filing for divorce.

If you married overseas and want to get a divorce in Australia, either you or your spouse must also meet the above criteria. You also need to give the Court a copy of your marriage certificate. If it isn’t in English, you should file an English translation of it, as well as an affidavit from the translator.

When applying for a divorce, you’ll need to prove to the Court that you’ve lived separately and apart from your spouse for at least one year and that you won’t resume married life. You can, however, be separated and still live in the same house – this is also known as being separated under one roof.

‘Separation under the one roof’… What does it mean?

You and your spouse can be separated but continue to live in the same house one year before applying for divorce. You’ll have to prove to the Court that you were separated during this time. You can find more information about this in the publication ‘Separated but living under one roof’.

How to apply for divorce

Simply register for the Commonwealth Courts Portal if you haven’t already done so, then complete the Application for Divorce online and pay the filing fee.

How much will a divorce cost?

The filing fee for a divorce application is $865. If you’re experiencing financial hardship or hold certain government concession cards, you may be eligible for a fee reduction. If so, you only have to pay $290.

What to do if you’ve been married less than two years

You should file a counselling certificate. You’ll have to attend counselling to get the certificate. Contact the Family Relationship Advice Line on 1800 050 321 to arrange counselling, or Relationships Australia on 1300 364 277. If you can’t attend counselling with your spouse, you should file an affidavit. You and your spouse should also have been separated for at least one year before applying for a divorce.

What if you have children and joint property?

The granting of a divorce doesn’t determine issues of property distribution or arrangements for children. For more information, please refer to ‘Property and Asset Settlement’, ‘Child Custody’, and ‘Co-parenting/Managing Separation with Children’ below.

Where to find more information on divorce and separation

Changing your name and address after getting divorced

Reverting to your maiden name or former name

If you took your spouse’s surname when you got married, you can revert to your maiden name or former following a divorce or separation.

If you were married in Australia, you should contact every organisation you have a personal account with to change your family name. You also have to provide proof of the name change, including the following:

  • Australian birth certificate
  • Australian marriage certificate
  • Updated photo ID
  • Identity documents

If you were born and/or married overseas and legally changed your family name to your spouse’s with the Registry of Births, Deaths and Marriages, you’ll have to legally change your name again with them.

If you were married in Australia, you’re entitled to be known by your maiden name regardless of your marital status. You simply need to prove the link between your married and maiden names with your marriage and birth certificates.

Who you need to notify when changing your name and address

Here are some organisations, governments, banks, and councils you’ll need to notify when you change your name and address after a divorce: They are all clickable links straight to the people you need to notify. We hope this helps you in these chaotic times.

You can easily and quickly notify organisations of your new name using a personalised name change kit.

Property and asset settlement

When your marriage is over, the financial ties between you and your ex should be finalised. For example, if you have a joint property, you should decide what happens to the house. You can either sell it or stay in it and your ex moves out.

What’s included in the property pool?

When you make a claim for property settlement, the Court will look at the property at the date of proceedings and at the date of Trial if it makes it all the way through the Court process. This means property, assets, and debt acquired after separation by either party will be brought into the property pool.

The property pool can include:

  • Joint property
  • Investments (shares, real estate)
  • Interests in businesses and companies
  • Interests or entitlements in trusts
  • Interests in deceased estates
  • Superannuation and savings
  • Inheritance money or lottery win
  • Boats
  • Vehicles
  • Jewellery
  • Artwork
  • Personal injury and compensation payouts
  • Long service leave
  • Life tenancy
  • Pension entitlements

How to start the property settlement process

The property settlement process should start soon after you divorce or separate from your spouse. At Journey Family Lawyers, we usually start the process by advising you of your entitlements. Then with your instructions, we’ll draft a letter to send to your ex partner to try to reach an agreement without having to go to Court. If an agreement can’t be reached, we recommend mediation between you and your ex partner. If there’s little chance of mediation succeeding, however, Court proceedings will commence and mediation can follow.

Time constraints for property settlement

Your or your ex-partner must apply to the Court for property settlement within 12 months of your divorce or within two years of your separation. If you don’t commence property proceedings within these time limits, you could lose your rights.

How to formalise your property settlement

The best way to finalise your property settlement is through a consent order, which is an order that you and your ex have agreed to. If the Court finds the property settlement to be fair and reasonable, they’ll make the order.

If you can’t reach an agreement with your ex, you can apply to the Court for a financial order.

How is the value of the assets determined?

When negotiating a property settlement, the Court will determine the value of the assets of both parties.

  • Furniture –The value of furniture is determined by their current sale value or second-hand value, not their replacement value or insurance value.
  • Joint property –The value of the property is what someone’s prepared to pay for it. But if you won’t be selling it, the value of the home is determined by taking the average of all the valuations provided by reputable real estate agents in the area. This is enough for most negotiations, but if agreement cannot be reached on the value and it goes to trial, a proper valuation by a registered valuer will be needed.
  • Cars, Motorbikes :These can be valued initially from a Redbook Valuation or a formal valuation obtained from a registered valuer.
  • Boats; These can be either valued or comparative values can be obtained from Tradeboats online.
  • Caravans These can be estimated initially from a Caravan online sales site or a formal Valuation
  • Superannuation –The value of your superannuation is harder to determine as its current value is lower than it’ll be at your retirement age. A Journey Family Lawyer can use forms to obtain information from your superfund to determine your super’s value. The forms are included in the Superannuation Information Kit. Self-managed super funds are generally valued with the help of an accountant. Some special Superannuation funds like Military Super have their own valuation process.

How are assets and debts divided?

When deciding how to divide assets and debts, the Court looks at:

  • What you’ve got and what you owe (assets and debts and what they’re worth)
  • The parties’ direct financial contributions to the marriage (wage and salary earnings)
  • The parties’ indirect financial contributions (gifts and inheritances from families)
  • The non-financial contributions to the marriage (caring for children and homemaking)
  • The parties’ future needs (the Court will consider your age, health, financial resources, care of children, ability to earn, etc).
  • Any financial resource or entitlement that you have that is not actually ‘property’ that can be divided between you both.

How can you split superannuation?

While you can split superannuation entitlements between both parties, it doesn’t automatically convert the interests into cash. The entitlements are still subject to superannuation laws, eg. it’s normally retained until you reach retirement age.

You can split superannuation by:

  • Entering into a formal written agreement
  • Seeking a consent order
  • Obtaining a court order if you can’t reach an agreement with your ex partner.

If you’re seeking a court order, the Court will tell the trustee of the superfund about the order by providing them with 28 days written notice. The trustee can attend the court hearing and object to the order you’re seeking. This is called providing the trustee with ‘procedural fairness’. Once the order is made, you should give a sealed copy of the order to the trustee.

Child custody

Child abuse or family violence

If your spouse abuses your children, you can apply to the Court to grant you custody of your children and you can ask the Courts to have your spouse leave the home by court order. If you’ll be leaving the house and your children are going with you, you should also take items that your children may need if you have time and also your special things that are of sentimental value.

If you’ve experienced domestic violence, you can apply to the Court for a domestic violence protection order to protect you, your children, and other relatives or associates from your ex.

While it’s important that your children have both parents involved in their lives, you should also make sure they’re protected from physical and psychological harm. The Family Law Act specifically says so.

What is ‘equal shared parental responsibility’?

Whether you or your spouse have full custody of your children, the Court will usually presume it’s in the children’s best interests if both of you have equal shared parental responsibility. In the case of child abuse or family violence, this won’t apply.

Equal shared parental responsibility means both parents are responsible for making long-term decisions for their children after a divorce or separation. This means you and your spouse should make parenting arrangements for your children, and they must be practical and in your children’s best interests. These could cover:

  • Where your children live
  • Who your children spend time and communicate with
  • What time your children spend with the parent they don’t live with
  • Times for your children to contact each parent by phone when they’re with the other parent
  • Childcare or education
  • Medical issues
  • Religious or cultural practices
  • Financial support for your children
  • Changeover arrangements (Where and what time should changeover occur, who drives where)
  • Arrangements for special days (Christmas, Easter, Mother’s Day, Father’s Day, birthdays)
  • How you and your ex-spouse will communicate with each other.

Who can you include in parenting arrangements?

If it’s in your children’s best interests, you can include the following people in your parenting arrangements:

  • Grandparents
  • Extended family
  • Other people who are concerned with the welfare of children.

Most importantly, you and your spouse should both be included in the parenting arrangements, to the extent possible having regard to any child abuse or family violence.

Written parenting arrangements

There are three types of written parenting arrangements. If you and your spouse agree with the arrangements made for your children, you can record your agreement as a parenting plan or a consent order. If you disagree with the arrangements, you can apply to the Court for a parenting order. But you should try to reach an agreement through family dispute resolution before applying.

1. Parenting plan

A parenting plan sets out the care arrangements for your children. It must be signed and dated by both parents. There’s no need for it to be in a specific format or witnessed.

You can change the plan any time by making another written agreement. It must also be signed and dated by both parents.

2. Consent order

You can apply to the Court for a consent order to make your agreement legally binding. You can also apply for a consent order online. You’ll also have to complete an Annexure to draft consent parenting order. You should file this with the Court at the same time as you apply for the consent order.

The consent order should be signed and dated by a suitable witness, such as a Justice of the Peace. You’ll have to pay a $160 fee when you file an application for a consent order.

You can change a consent order by making another consent order, parenting plan, or parenting order.

3. Parenting order

A parenting order is an order made by the Court regarding arrangements for your children and your parental responsibilities. The Family Law Act sets out what the Court should consider when making parenting orders, including what’s in your children’s best interests.

A parenting order is legally enforceable, so if you disobey the order you can face serious consequences.

Child support payments

Depending on who has custody of your children, you can determine the amount of child support you need to pay or receive by visiting Child Support at the Department of Human Services. If you want to change a child support assessment due to special circumstances, you can complete an application form to change the assessment. Your child support will be changed if there are indeed special circumstances and the change would be fair to both parents and the children.

Sometimes if your Income is going to radically increase or decrease, you could lodge an Estimate Of Income but be careful to read the guidelines or get legal advice before you do.

Co-parenting and managing a separation with children

Have your children’s best interests in mind

When co-parenting/managing separation with children, you and your ex should always have your children’s best interests in mind. Here are some factors to consider:

  • Protecting your children from harm
  • Ensuring your children have a meaningful relationship with both parents
  • The views of your children (Giving weight to their age and maturity)
  • The relationships your children have with each parent and other family members
  • The capacity and participation of each parent when parenting and spending time with the children
  • The effect of any changes to the children’s circumstance
  • The practical difficulty and expense of any arrangements.
  • The relationship the children have with each other sibling

What is ‘equal shared care’?

Equal shared care means your children spend half the time living with you and the other half with your ex.

In many cases, however, an equal shared-care arrangement isn’t in the children’s best interests, so the Court will consider an alternative arrangement. For example, your children will live with you and spend every second weekend, plus one night each week and half of the school holidays with your ex. Other arrangements such as 4 or 5 day weekends every second week, or 8 days a fortnight with one parent and 6 days a fortnight with the other are also common. It depends on what is best for the children.

What if you’re relocating?

If you’ll be relocating with your children, you should get your ex’s written consent or do it with a court order. On the other hand, if your ex moves away with your children and it affects your children’s ability to spend time with you, you can obtain a recovery order requiring your ex to return your children.

Tips for successful co-parenting

Here are some tips for successful co-parenting:

  • Don’t use your children to relay messages to their other parent.
  • Speak directly to your ex partner but keep it businesslike and to the point
  • Don’t talk badly about your ex to your kids or in their hearing
  • Be considerate towards your ex-partner
  • Respect your children’s time with your ex-partner
  • Don’t do something that would make it hard for your children to have both parents attend their weddings
  • Don’t let another adult’s angst affect the decisions you make in your parenting arrangements with your ex-partner
  • Plan your time when your children are away, so that you don’t mope
  • Don’t air your grievances on social media, even if you’ve blocked your ex-partner. Someone will pass it on and one day the kids may read it too..

Would you like some guidance through your divorce? Contact Journey Family Lawyers Brisbane today

With more than 30 years’ experience, Journey Family Lawyers Brisbane can guide you through the process of divorce and help you achieve a positive outcome. Our services include divorce, separation, property settlement, and child support. We’ve helped thousands of Australians through their separation, so call us now on (07) 3832 5999 for a free 15-minute consultation. You’ll get personal advice from one of our friendly specialist family lawyers to ensure your divorce goes as smoothly as possible.

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Talk to a Family Law Lawyer for free. Call (07) 3832 5999

Did you know that you can phone 38325999  to have a free 15 minute or so chat with one of our lawyers at any time during business hours?

Usually we have a solicitor who can take your call right away, or if not, can all you back within the hour.  Or you can email us on enquiries@journeyfamilylawyers.com.au for a free email response. This helps many people each week and we are happy to do this and give you the information that gives you some clarity about your legal position. Sometimes this is all people need in the early stages of their separation or divorce journey.

If you are ready for more detail, though,  you can also  have an hour long, confidential , no obligation consultation on property settlement and divorce, children’s custody issues, or any other Family Law matter with a Journey Family Lawyer for $275.00 GST inclusive. If you cannot get to one of our offices, in Strathpine, Brisbane City and North Lakes then why not have a phone conference for an hour. We do it a lot, and we even have clients from interstate and overseas that we never see. These days with email it is much easier to have long distance representation.  We have helped many people this way.

You will generally leave one of these conferences with a clear idea of where you stand, and also a plan for the future.  People often say they wish they had come to us sooner, as these things had been keeping them awake at night. To make an appointment or to phone to talk to a lawyer, call

07 38325999 (Brisbane)

07 32059000 (Strathpine)

07  34482199 (North Lakes)

Kind regards,

Lynette

Mediation

Mediation is often an effective process to deal with Family Law issues. In Family Law disputes, no-one wants to go to Court.  At Journey, we offer an alternative option of Mediation between the parties to settle disputes.

Mediation works with property and childrens’ issues though there are some disadvantages as well as advantages. This article is designed to explain the Mediation process and allow people to judge whether their case is suitable for Mediation.

In just about all Family Law cases, there are Court-sponsored Mediation opportunities. Almost certainly in any Court action there will be a Mediation or Conciliation Conference arranged.

Advantages of Mediation

Mediation can be quicker than going to Court. It can also be faster in getting an outcome and it is certainly less stressful than going to Court. The costs of a successful Mediation could be less than that of a Court process. As well, Mediation can result in an agreement with terms that a Court could not arrange but are more suitable to the participants.

All parties to a Family Law dispute are strongly recommended to consider Mediation as a process (though there are some prerequisites). In some areas, such as children’s matters, an attempt at Mediation is compulsory before commencing Court proceedings.

Disadvantages of Mediation

Whilst the costs can be lower than that of Court action, both parties must be committed to the process. If they are not, there is the danger that considerable moneys can be spent on a Mediation with no outcome. When that happens, the next step is to issue Court proceedings and the costs of the Mediation process are wasted. It is therefore important, before agreeing to a Mediation, to be satisfied that the other party is genuine in their desire to settle the matter.

Sometimes, a party to a dispute is aware their position is unreasonable. To avoid Court and to delay matters as long as possible, they will often agree to Mediation with no intention of accepting a reasonable outcome.

Further, if you have limited funds, a party should not expend all their available funds on a Mediation and then when it fails to provide an outcome, there are no funds available to take the matter to Court. In that situation, it is far better to issue Court proceedings and then go to Mediation under the umbrella of Court proceedings.

 

Advantage of Court-sponsored Mediation

Once Court proceedings have been instituted, the Court system will come into effect and the case is managed by that system kzcipy6. This will include processes that include Mediation and/or conciliation processes. Often this type of Mediation is the best. There are a number of reasons. Firstly, with the “threat” of Court proceedings, parties are more inclined to make a genuine effort to settle a matter. Secondly, if a party has been un-cooperative in the preliminary steps, the Court will take note of that and can impose sanctions on the recalcitrant party. Thirdly, if the other party is completely uncooperative, you still have the Court process to move forward to finalise your case.

 

Pre-requisites for Mediation

There are some factors that need to be considered before going to Mediation. Firstly, is the other party being cooperative and in the case of property matters, is the other party making full disclosure of their financial interests?

Secondly, if the likely outcome of Court action (or the Mediation), is that the other party will be in a significantly less advantageous position, the likelihood of a successful Mediation will be less.

There can be indicators whether the other party going to genuinely take part in the Mediation process. For example, have there been some preliminary negotiations and offers? Has the other party cooperated with the pre-Mediation steps, for instance, if the dispute is about property? Has the other party made full disclosure of their financial position, or, are they refusing to accept values (or get values) of assets like real estate? Have they been slow in responding to letters and requests? If they are not being cooperative at the pre-Mediation steps, they are unlikely to be cooperative at the Mediation and, unlikely to come to an agreement at a Mediation.

If there is doubt in either of these issues, consideration should be given to using the Court-sponsored Mediation options rather than waste money on a Mediation that is unlikely to succeed.

 

Costs of Mediation

Mediation can often cost as much as commencing Court proceedings. Your case needs to be prepared to present to the other party and the mediator. There will be costs for your legal advisor to prepare and attend. As well, each party normally pays half the costs of a mediator. A mediator will generally charge between $1500 to $5000 depending on their skills and seniority. You therefore need to budget anywhere from $3000 upwards for a Mediation.

 

How does a Mediation Work?

The actual Mediation process varies as different mediators use different processes. Some require a lot of information before the Mediation day and some require a “face-to-face” meeting with each party. It does not usually make much difference (except as to costs).

On the Mediation day, both parties attend and meet usually with their legal advisors. The parties are expected to sit in joint sessions with everyone and can also expect the mediator will see each party separately. The mediator will try and identify which issues are in contention and which ones are not; then they assist the parties in working towards a resolution. In many cases, the eventual agreement involves compromise by both parties and that needs to be understood.

If a party feels uncomfortable being in the same presence of the other party, the Mediation can proceed with each party being in separate rooms and the mediator talking to them separately through the process.

Once an agreement has been reached, it is normally reduced to a written form. In the Family Court system, the Lawyers would normally then prepare Consent Orders for subsequent signing by the parties.

 

What should I do?

When deciding on the Mediation process, you should consider the likely costs and possibility of success. Talk to your legal advisor about whether they think it is worthwhile. Our Lawyers practice exclusively in Family Law and have develop a sense whether a party is going to cooperate. Whilst they cannot guarantee an outcome, they can assist you in your decision.

If you are not sure the other party will cooperate, the alternative may be to issue proceedings and use the Court-sponsored Mediation process to resolve the issues. Remember, almost all Family Law cases are resolved through the process, including Mediation and conciliation. Very few cases even end up in a full Trial. Even the most stubborn person, faced with going to Court if they do not agree to a (reasonable) proposition, will usually accept the inevitability of the Court process and give in!

 

 

 

 

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.

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

Grandparents have rights too

Over the past decades grandparents have been called upon to look after their grandchildren fulltime in a way they could not possible have imagined they would.

Often their own children have been lost to drugs or are in unsuitable environments for raising children. Sometimes people agree that the grandchildren would be better off with their grandparents, but sometimes there are heart rending disputes for the sake of the children.

Our firm has a significant track record for understanding and resolving disputes between grandparents and children, and do not shy away from initiating applications for grandparents to spend time with their grandchildren also. If you tried elsewhere and failed to get the legal support you need, or simply need to have someone assess your situation please call or email us, and we will do our very best for you.

Legal Aid

If you think you are eligible for legal aid , please phone us and we can help you complete your application for legal aid get redirected here.

 

Dispute Resolution

WHERE DO I START?

In the course of my daily practice I am often called upon to give advice quickly to men and women who find themselves unexpectedly in the position of either leaving their partner or having been left by their partner.

It is probably true to say that I sometimes get calls from people on the worst day of their lives.

I thought I would write about some of the issues that come up immediately after separation, often before either party gets to see a Lawyer and certainly before anybody has a chance to apply to the Court or reach agreement on issues.

Sometimes, because emotions are so raw people are not even speaking to each other.  Yet, it is under these circumstances that big decisions need to be made about who lives in the home, who is going to pay the bills, where are the children going to live and how often do the children get to see their other parent.

I will tackle each of these issues one at a time although they are by no means the only issues that crop up.  I hope the information below will be of assistance to anyone who finds themselves in this position.
Who Lives in the Home?

Many times the Father leaves the house and the children and their Mother stay in the home.  This is usually the sensible course of action as it is easier for one person to relocate than for several people to relocate.  Difficulties arise however, where neither party will leave the home and resulting conflict makes life hell for both parties and the children.

In these circumstances, it may be necessary for one party to apply to the court for an order granting them “sole occupancy”.  Decisions on this point are made by the Court based on the balance of convenience and fault, amongst other things.  Generally the person who has somewhere else to go and the money to fund the move will be asked to leave.  Unless he or she can convince the Court that there is no reason why they should leave.  It is not unusual for people to continue to live under one roof but separately if they are unable to afford alternative accommodation for one party.

Who Pays the Bills?

There is a time lag between a person first applying for Centrelink payments and Child Support and the date of the first payment.  This can leave one party in dire straits for a few weeks, especially if they do not have any funds in their own name.

In these circumstances, most people continue to take mortgage payments and other living expense from whichever salary funded them in the past.  It is usually only later, when Child Support payments are being made that the person living in the house assumes liability for the mortgage and outgoings.  The Court expects a person living in a property to pay for the costs associated with that property on the basis that the other parent will have other living expenses involved in renting.

If no agreement can be reached then it may be necessary to bring an urgent spousal maintenance claim to cover day to day living expenses.

Where Will the Children Live?

Now there is an obligation on he Court to consider shared care unless there is some disqualifying factor as set out in that section

Changing Law Firms

If , after reading our client’s testomonials, and reading about our philosophy and skills, you feel that you would prefer to have our firm handle your case then we are happy to help.

Sometimes it can feel difficult to change lawyers. You will feel loyalty to your solicitor sometimes but still feel that there could be more that should be done to move things along. We understand that sometimes other firms require their staff to carry many more files than we do. This can result in your file being one one of many rather than one of only about 20  or so files.

If you wish to try our firm’s positive approach, then email us at  bg@journeyfamilylawyers.com.au  or phone us on 07 38325999 in Brisbane or your local journey office, and we will arrange for the file to be transferred to us. There is no need for any ill will with your former lawyers. We will handle the transfer with dignity and a minimum of disruption to your case tamiflu over the counter. Even if you are not far from a Court date, we may be able to help you with a concentrated effort on your part and ours.

Talk to us first so that you are sure you are comfortable with us and that we can help.

We can email you the authority to transfer the file if you prefer. Just call one of the Solicitors for an obligation free discussion.  Just email us and we will get back to you. Or call us and ask to speak to any one of our experienced lawyers about your case to see if you feel we share the same philosophy and have the expertise you need.

Urgent or interim Child Applications

When most Applications for Parenting Orders are filed in the Family Court of Australia or Federal Magistrates Court of Australia, there is usually an Application for Interim Orders contained with it. This is because, at the moment, it’s taking about one and a half years to two years for an Application for Parenting Orders to proceed to trial in the Family Court and about one year to one and a half years in the Federal Magistrates Court (at least in a Brisbane Registry). Steps are being taken by both Courts to try and speed that process up. But in the meantime, Interim Orders are likely to apply for a significant period of time.

Interim hearings are, by their nature, limited. There is no cross-examination of witnesses (the Court only looks at the Affidavit material provided by the parties). The hearings are limited to a maximum of two hours including reading time. Interim hearings are usually heard in the context of a number of hearings listed before a Federal Magistrate or the Judicial Registrar of the Family Court in one day.

Interim hearings are usually held about six weeks after the date of filing depending on individual circumstances. In the Family Court, a case assessment conference with a Family Consultant and a Registrar may have been undertaken and/or there may have been an appointment with a Family Consultant prior to the interim hearing.

In Interim Court hearings:

  1.  Cases are limited to two hours
  2.  The Court can not make or should not make findings of fact in contested as a general proposition
  3. There will be no cross-examination; and
  4. The Court will proceed just on the Affidavit material of the parties, any documents that are tendered and the submissions of the parties or their legal representatives.

The Approach taken by the courts:

Goode’s case says that the “status-quo” or “stability” arguments can no longer be made. It is not good enough for a Court on an interim basis to simply make a finding based on the available evidence and the uncontested facts of certain arrangements that have taken place post-separation and merely preserve those arrangements until a final hearing. In practice, this might mean that it is more likely that the Court will make Orders for equal time on an interim basis. 

The Family Law Act as it is now written says that there is a presumption of equal shared parental responsibility. That presumption can usually only be rebutted if there is evidence of abuse, family violence or, in an interim case, unless the Court considers it would not be appropriate for the presumption to be applied when making that Order, or it is simply not in the best interests of the child or children.

If there is equal shared parental responsibility, then the child or children will spend either equal time with each of the parents or substantial and significant time with the person with whom the child does not live. “Substantial and significant time” means more than just alternate weekends and half school holidays but does not necessarily mean equal time.

Having taken those relevant sections into account, the Court has indicated that an interim hearing the Court should follow the following formula:

  1. Identify the competing proposals of all the parties
  2. Identifying the agreed or uncontested relevant facts (these will be given the most weight)
  3. Identify the issues in dispute at the interim hearing.
  4. Consider the matters in Section 60CC (The section deals with the best interests of the children)  that are relevant and make findings about them if possible on the uncontested material (and this may not be possible)
  5. Deciding whether the presumption of equal shared parental responsibility applies. If it does not, finding on the available evidence that there is abuse of a child, family violence or it’s simply not appropriate to apply.
  6. If presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests.
  7. If the presumption applies and is not rebutted, considering making an Order that the child spend equal time, or substantial and significant time, with both parents.
  8. If equal time or substantial and significant time is not appropriate, then making such Orders are in the best interest of the child
  9. If the presumption of equal shared parental responsibility is rebutted and such other Orders that may be in the best interests of the child or children.

What sort of findings can the Court make on an interim basis?

It’s important to consider what sort of findings a Court can really make at an interim hearing. You will find it very unlikely that a Court will make a positive finding at an interim hearing about matters such as drug use, alcoholism or general allegations of neglect (unless really substantiated elsewhere). An example of what sort of findings the Court might make on an interim basis is provided in Goode’s case and it is as follows:

  1. T attends school and J attends childcare on three days a week on Monday, Thursday and Friday from 8:30am to 4:30pm when the mother works.
  2. Since separation, the Father has been spending time with the children each alternate weekend from Friday afternoon until Sunday afternoon and with the child T on Monday afternoon and Tuesday afternoon each week.
  3. The Mother proposes that T spends one half of the school holidays with the Father and J spend block periods of four (4) consecutive days with the Father including two (2) such blocks during school holidays.
  4. T spends one half of the July school holidays with the Father.
  5. The Mother lives in the former family home and the Father lives with his parents close to the school, day-care and the former family home.
  6. The Father has the assistance of his parents to care for the children and works in his family business with them.
  7. The Mother conceded that there was no issues of risk to the children, the only issue was the amount of time that the Children should spend with the Father.

Conclusion – Is this a change or not?

It will remain to be seen weather on a day to day basis the Family Court of Australia and Federal Magistrates Court will change the way the make Interim Determinations in parenting cases.  While Goode’s case provides a new formula the outcome could well be exactly the same as it was under the old principals of Cowling applying the Family Law Act as it existed apply to 1 July 2006 parties coming to Family Law proceedings and Family Law practitioners will need to be aware though that if Orders are being sort that do not involve a child or children spending equal time or substantial time with both parents they will need to be a very good reason why such orders shouldn’t be made.