Canberra Family Lawyer

Getting a family law team together

Divorce affects many aspects of your life and hiring the right professionals will smooth the way through this difficult time. From experts who can help you financially to emotionally. Here’s why going solo should be a team effort.

A family lawyer

Obviously, a family lawyer will be the first professional you think about when you are considering who to engage for your family law matter.  But even though divorce is a legal process, you won’t always need a family lawyer to handle absolutely everything. Especially if it’s not a complex contested divorce.

If you don’t require lawyers to advise you all the way through your matter from start to finish, think about engaging a family lawyer as a shadow lawyer. Or take advantage of unbundled services.

Yes, you can legally “do it yourself” for many simple divorce matters. The family law courts have many helpful brochures and even a YouTube video on how to get divorced! Sometimes you and your ex will agree on most things and it all feels very amicable. But know that the tide can turn at any time (people really do change). It’s really important to know your entitlements under the law. Therefore, it’s a good idea to always get professional help from a family lawyer. Even if it’s just initially to scope out your situation. (Remember, at Alliance Family Law you can access a short, free, no-obligation first conference by telephone. Just give us a call to make an appointment.)

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Tips for writing an affidavit

writing an affidavit

Evidence in family law matters is usually given by way of affidavit. It’s therefore very important to make sure your affidavit complies with the rules, so your evidence is not “struck out”. Here is everything you need to know about affidavits in family law matters and tips for writing an affidavit.

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Fighting parental alienation: Family law inquiry

fighting parental alienation

Will Australian family law reform deal with the fraught issue of parental alienation? The recently released recommendations contained in the Second Interim Report of the Parliamentary Family Law Inquiry (which we discussed here), suggest that this subject is finally receiving the attention it deserves by the authorities. It’s a highly complex and controversial topic even amongst experts, and it is closely related to another controversial subject, the making of false allegations in the family court system. For many Australian parents, fighting parental alienation is so much more than academic: it’s personal, causing untold heartache. But it also seems to generate a lot of confusion in both the community and the legal and medical professions. Let’s take a quick look at where things stand right now, and where things may be headed.

What is parental alienation?

Parenting orders, including consent orders, are only made by the courts in about 3% of all family law matters, however the Parliamentary Family Law Inquiry received many submissions regarding concerns over “allegations of one parent turning their child against the child’s other parent”.  Therefore, the Inquiry addressed the concerns about parental alienation in its report, acknowledging that parental alienation is distinct from the debunked “Parental Alienation Syndrome”. This is where some of the controversy lies, with some arguing that the term “parental alienation” conflates the two concepts and causes confusion. Other controversy over the use of the term exists because of the fear that it has become inescapably gendered, due to its misuse in the context of family violence claims.

In practice, our courts have accepted the term “parental alienation” into usage as being synonymous with “child-aligning behaviours”, which any family law professional–and any parent suffering from it—will attest is a very real issue indeed. In the Inquiry report too, the Committee notes that it heard “evidence of a number of instances where a parent has denied the other parent access to their children, for no apparent reason other than spite or to achieve greater financial outcomes”.

Parental alienation or parental protection?

When a parent denies their co-parent access to the child, and seeks to turn the child against the co-parent, for strategic reasons or out of spite, this is clear parental alienation. In contrast, sometimes a parent is validly shielding the child from the co-parent for reasons such as family violence—this is not parental alienation because, as the Committee notes, there is a “substantive reason” for the withholding behaviour. But what can then occur is the abusive co-parent will accuse the alleging parent of “making false allegations’ to engage in “parental alienation”.

False allegations

The issue of the making of false allegations by parents engaged in family law disputes is intricately linked to the issue of parental alienation. That’s because making false allegations is absolutely one of the tools used by parents when attempting to alienate children from the other parent. Many experts in the field are of the view that there are very few cases of truly false allegations.

In such a situation, the alleging parent accuses the other parent of abuse, with the deliberate intention of preventing the other parent from having contact with the child. While serious claims are investigated, parents can lose contact with their child and by the time the parent is cleared of abuse, it may be too late to undo damage that’s already been done.

And so, the task of the courts is to decide: who is telling the truth? Is an alleging parent making false allegations to engage in parental alienation? Or is an accused parent using the concept of parental alienation to reduce the alleging parent’s credibility on the abuse claims? What a conundrum.

It’s therefore critically important that the Government takes on board the inquiry Committee’s recommendation that the courts “establish a mechanism by which allegations of a person wilfully misleading the court in family law proceedings can be reviewed, and where appropriate, referred for investigation for perjury”. Further, the Committee has recommended that “the Commonwealth, states and territories, through the Council of Attorneys-General, undertake a review of the state and territory family violence order framework to consider what may be done to address the concerns raised…in relation to…what actions should courts take to discourage improper applications, such as those made based on allegedly false allegations not ultimately upheld on review of the evidence (including whether any record of such application should be removed from the alleged perpetrators record)”.

In other words, there has to be some method of separating the wheat from the chaff when it comes to allegations being made against a parent, and some form of sanction against an alleging parent where allegations are found to be false.

What did the Inquiry recommend regarding parental alienation?

The Committee recommends that “all family law professionals, including judges, undertake regular professional training, including in the areas of [amongst other things] parental alienation dynamics”. It’s hoped that better education into family violence and parental alienation dynamics will “assist the court to identify cases where parental alienation is occurring or where a parent is legitimately seeking to protect their child from harm”.

There’s a very good recent article in the Irish Examiner which explores the topic of parental alienation in depth. On the subject of training, the newspaper notes, “In other jurisdictions such as Canada, judges presiding over family law cases have yearly training on estrangement, parental alienation, and parental coaching”.

Ireland too is going through a parallel phase of family law reform, with its own government-commissioned reports producing recommendations for changes to their family law legislation. Their Department of Justice is, apparently, committed to conducting research into the issue. So far, our Government has not addressed the need for more academic research.

Ireland is in fact ahead of the game, with an existing “international evidence-based model of assessment, where we can identify whether we are dealing with a bona fide case of parental alienation”, as well as an “evidence-based model of intervention”. Early intervention (with Alternative Dispute Resolution processes) is critical to prevent the permanent entrenchment of alienation and potentially irreparable damage to a child-parent relationship. As an expert told the Irish Examiner:

“The good thing about having this model of assessment is that when an abusive or neglectful parent alleges that the healthy normal range parent is engaging in parental alienation, this can be examined. That is a perpetuation of abuse and a misuse of the construct and that cannot be tolerated. It does a disservice to the genuine parents who are suffering.”

With parental alienation now on the reform agenda, the question is, are the proposed Australian reforms enough? Is it enough to require that family law professionals and the judiciary receive regular training on parental alienation dynamics? And that there be ways to identify when allegations against a parent are false, and implement sanctions against a falsely alleging parent?

Shouldn’t reforms also take into account the many nuances in the debate, for example:

  • whether parental alienation should formally be regarded as a form of family violence (as it’s essentially abuse against both the child and the alienated parent),
  •  how to handle the potential gender biases (we expand on this here), and
  • the fact that parental alienation may be a breach of human rights.

Here at Alliance Family Law, we believe family law reform in Australia should thoroughly examine the evidence being aggregated around the world on the twin issues of parental alienation and false allegations, and to implement evidence-based best practice. There needs to be a holistic view to fighting parental alienation, so that proactive decisions can be made to optimise the best interests of children. We will keep an eye on this important debate and let you know of developments.

For family law help, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.

Family Law Act: Government responds to 2019 ALRC recommendations

family law act

The Government has just delivered its response to the 60 recommendations contained in the Australian Law Reform Commission’s (ALRC) review of the family law system and the Family Law Act, which had been undertaken in 2017 with a final report delivered in 2019. This comes hot on the heels of the fresh release of 29 recommendations that stemmed from the Government-commissioned parliamentary family law inquiry. No doubt there is overlap between the two sets of recommendations, so a look at what the Government’s response is to the ALRC review recommendations is probably indicative of how it will likely eventually respond to the new family law inquiry recommendations. Let’s take a brief look at a couple of the issues.

The need to clear up the confusion around “equal shared parental responsibility”

Since the introduction of “equal shared parental responsibility” into the Family Law Act 1975 by the Howard Government back in 2006, there has been persistent confusion about the law. Many in the community have misinterpreted the provision to equate it to enshrining equal shared time ie. 50:50 time with the kids.

The Government points out that under the Family Law Act, the courts must start with a presumption of equal shared parental responsibility and if this is in the best interests of the child, then the courts next consider whether equal time or significant and substantial time or less time or no time is appropriate, given the particular circumstances of a matter. The Government points out that the Family Law Act only requires the court to consider this, not to begin with a presumption of it. In other words there is no automatic starting point of 50:50 shared time.

The ALRC suggested changing the wording to “joint decision making about major long term issues” so that people are crystal clear that this provision does not relate to the division of time with the children. But the Government expresses doubt that this would actually prevent people’s misinterpretation. However, to us it seems the word “equal” is definitely the bugbear in people’s continued misinterpretation of an “equality of time” with the children. The word “joint” is different, implying undertaking something together, but not necessarily implying that something is exactly “equal”. It is clearly difficult for people to get the idea of equality of time out of their head when they read the words “equal shared”. And “decision making” is clearer than “parental responsibility”, which to the layperson can sound like looking after the children and therefore easily sound like time spent with the children.

The Government points out that the provision is explained in the Family Law Act, and if the Family Law Act is in fact read by users, it would be understood that it does not mean automatic “equal time”. Changing the language, the Government argues, “may simply add to current confusion”. The solution from the Government’s perspective is to instead try to reduce confusion by “giving greater prominence to the [explanatory] note accompanying” the section of the Family Law Act, so that people are more likely to read it and therefore understand that equal shared parental responsibility does not mean equal time. Here, the Government would also make it clearer to users about when the presumption of equal shared parental responsibility does not apply, such as in cases involving family violence.

Clarify financial disclosure obligations and consequences

In order to have a fair resolution of property disputes, it’s necessary for parties to be transparent about their financial situation. But at the moment, financial disclosure duties are contained in two sets of rules, the Family Law Rules and the Federal Circuit Court Rules. The Government agrees that these duties need to be harmonised and brought into the Family Law Act instead. Also, the Family Law Act should spell out the consequences of breaching the duty of disclosure. Another aspect here is that the Government wants to enable information sharing between the ATO and the family courts in order to strengthen the obligations under the Family Law Act, making it harder for people to hide assets.

Expand arbitration so it can be used in parenting matters

The Government response indicates it agrees in principle to expanding the use of the alternative dispute resolution process arbitration so that it can be used for certain parenting matters. Currently, arbitration is only able to be used for non-parenting matters.

The ALRC had suggested that arbitration of children’s matters could work, if the process was protected by legislation such that the family court would still retain a fair amount of control. For example, the family court would have to refer matters to arbitration, with the consent of parties, and an arbitral award wouldn’t take effect through registration (like with financial matters) but would only become an order of the court if the family court reviewed the matter and was satisfied the order should be made.

The Government agrees such protections are needed, but is asking for more analysis to ensure the process would result in decisions made in the best interests of children. For example, there needs to be careful examination of issues surrounding handling evidence, family reports, children’s views, the costs involved and the accountability of arbitration practitioners.

Require genuine efforts to resolve property/financial matters outside court

With parenting matters, parties have to first attempt mediation before they are able to make an application to the court. It looks likely that the Government will adopt the ALRC’s recommendation that a similar requirement be implemented for property and financial matters. Parties should be compelled to take “genuine steps” to try to resolve their matter outside of court and lodge a “genuine steps statement” before being able to go to court. There could be incentives to do so, and disincentives (costs consequences) if they do not. The aim is to steer more parties towards alternative dispute resolution processes to reduce congestion in the court system. This area needs a lot of work to figure out how to design an appropriate system including defining what is meant by “genuine steps” and exemptions (eg. for matters involving family violence).

Address family report writer accreditation

Private family report writers have come under fire over the years, mainly due to their lack of oversight and accountability. As such, it’s good to see the Government agree in principle to the ALRC recommendation that there be a mandatory national accreditation scheme for private family report writers to ensure they are “appropriately qualified, trained and accountable”. This will go a long way towards rebuilding community trust in these experts, given the impact they have on family court outcomes.

Overall, it looks like there will be plenty of amendments to the Family Law Act as we move into the next phase of family law reform in Australia. Much of the response to the ALRC report seems to hinge on simplifying the Act so that it can be better understood and utilised by families, many of whom are self-represented. Hopefully the end result will be a more efficient family law system that is easier for families to navigate, and with less confusion or politicisation of its provisions—for example, the fallacy that changing the wording of the equal shared parental responsibility provisions means it will become “anti-Dads”.

The above is only a short look at some of the matters raised by the ALRC report and the Government response. You can read the ALRC’s Final Report from 2019 in full here and the complete Government’s response here.

If you would like assistance with a family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.

Family law time limits

family law time limits

Are you aware of the legal deadlines that may be relevant to you if you have decided to divorce? Here’s a quick rundown on some of the issues to bear in mind when it comes to family law time limits – some time periods can be quite long but other can be very short, so it’s important to have a good idea of where you stand and to get legal advice well in advance. Your family lawyer will need to know all your relevant key dates that could trigger a time limitation countdown, including your date of separation, the date of an order for divorce or the date of death of your spouse. Whether you were married or in a de facto relationship will often mean there are different family law time limits of which to be aware.

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Family law inquiry: what are its new recommendations?

the family law act

The Parliamentary family law inquiry has just released its second interim report into the family law system. So at this stage, what does the Committee find are the biggest problems besieging the family law system, and what are the solutions? The report, containing 29 recommendations, identifies four consistent themes through the inquiry:

Four areas of main concern have been consistently raised during the family law inquiry so far:

  • Extensive delays
  • Excessive costs
  • Difficulties around enforcing orders, and
  • Timely resolution of family violence allegations
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Supervision and children’s contact centres – what to know

children's contact centres

Children’s contact centres: Some cases that go through the family courts result in orders that a parent’s time spent with their children is supervised, frequently when interim orders are made and a final hearing has not yet taken place. This is usually a precautionary measure by the courts, erring on the side of caution before evidence is fully tested at a final court hearing. Let’s take a quick look at what’s involved with supervision and children’s contact centres.

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Seeking an adjournment in a family court matter

seeking an adjournment in a family court matter

We all know the family court system is beset by long delays, but what if it’s actually you that wants or needs to delay your family court matter? Here’s a quick look at the process and some of the reasons which a family court might accept if you are seeking an adjournment in your family law matter.

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Dividing business assets in divorce – what to know

Dividing business assets in divorce

Rearranging your finances after a split is often a complicated matter and more so is there is a business involved. Small business, start-up, local business, multinational company–whether the business was run jointly or one person took a complete back seat, or mutual assets were used to conduct the business, the process of dividing business assets in divorce can be complex.  Given how important it is to properly value a business interest, let’s take a brief look at what’s good to know about dividing business assets in divorce.

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New free technology will help victims prove electronic stalking

stalking

As the NSW parliamentary inquiry into coercive control in domestic relationships wraps up this week, it’s timely that an Australian cybersecurity company has announced it will launch a new, free technological tool it has developed which is able to detect covert apps on phones, without also alerting a stalker that their monitoring has been discovered. Stalking is a behaviour that falls into the category of family violence and domestic partner monitoring is often linked to coercive control of victims.

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When your ex won’t comply with court orders

when your ex won't comply with court orders

It’s one thing to go to court and obtain court orders requiring your ex to do something, but what happens if compliance with the court orders is an issue? If you can’t resolve your situation by reaching agreement or attending dispute resolution, it will be necessary for you to apply to the courts to make an order to enforce the original order. Say your ex has been court-ordered to vacate a property they are living in, so that you can proceed with a sale of that property. What happens if they don’t leave and how do you force them to? Let’s take a look at what you can do when your ex won’t comply with court orders.

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Accusing a family court judge of bias

accusing a family court judge of bias

Accusing a family court judge of bias is a very serious allegation. Although it’s rare to actually be found to be established, such allegations are taken very seriously by the judicial system because the impartiality of our judges is such a fundamental aspect of the system. Justice not only has to be done, but it also has to be seen to be done, so the public has confidence in the system. Several recent matters in the family courts involve situations where allegations of judicial bias were raised. It’s worth taking a quick look at what these matters reveal.

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Green light for family court merger

family court merger

The Morrison Government’s solution to the woes of the family court system has been given the go-ahead by a two-vote majority in the Senate to the dismay of many stakeholders. The bill was passed thanks to the support of One Nation and independent Rex Patrick, despite vocal opposition from more than 155 stakeholders in Australia’s family law system. The family court merger will collapse the specialist Family Court with the Federal Circuit Court, to create a single court called the Federal Circuit and Family Court (FCFC).

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Family law costs – who pays?

family law costs

If you are successful in family court, can you ask the court to make the other party pay your legal costs? In some areas of law, courts regularly make costs orders in favour of a successful party. However, in the family law jurisdiction, things are slightly different. Normally, each party in a proceeding has the responsibility to pay their own family law costs. But under section 117 of our Family Law Act 1975, it’s also possible to ask the court to use its discretion to award costs.

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Sperm donors and legal parentage

sperm donors and legal parentage

A recent article over at the UK’s Marilyn Stowe Blog looks at the legal issues surrounding sperm donorship, in response to their firm’s commissioned research suggesting single women in the UK could be becoming concerned about the pandemic’s effect on their chances of finding a mate and having children and are increasingly considering assisted reproductive technologies. The article explains what the situation is there for sperm donors and legal parentage of donor children. English family law is very different from Australian family law though, and in this specific area Australia has also seen some landmark court decisions in recent years. So, what is the legal situation for Australian sperm donors? Let’s take a quick look.

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Defining coercion and control

coercion and control

Coercion and control: Our Family Law Act doesn’t exhaustively define family violence but it was amended a decade ago to include the element of coercive and controlling behaviour.  In fact, control and coercion are really at the heart of the definition of family violence, because the “violent, threatening or other behaviour” perpetrated “coerces or controls a member of the person’s family or causes the family member to be fearful”. It can be both the controlling and coercive behaviours themselves, or the effect of violence on the victim.

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Children’s overseas travel during COVID

Children's overseas travel during COVID

In a parenting matter heard in the family courts in Adelaide, given the pseudonym “Quincy & Quincy”, a father and mother had to deal with the impact of the pandemic when the English born mother wanted to take the kids to the UK for three months against the father’s wishes. What does this case tell us about how children’s overseas travel during COVID might be treated by the courts?

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Parenting orders and a parent’s mental health

parent's mental health

Parent’s mental health: We sometimes have queries from clients concerned that because they have been diagnosed with or are being treated for a mental health issue, they may lose custody of their children. Alternatively, clients sometimes raise concerns about the other parent’s mental health and feel that this may be impacting on the children’s care; in this case they may feel they should ask a court to modify parenting arrangements. Can the mental health of a parent be relevant in the making of orders in court parenting proceedings? Let’s take a look at this sensitive and often fraught issue.

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The benefits of divorce mediation – even if it doesn’t work

divorce mediation

Divorce mediation is a gentler and more productive approach to resolving your divorce dispute and reaching a final agreement on your property and parenting matters. It’s a way to minimise the financial and emotional costs of divorcing and to move forward in a way that allows you and your ex to part on far better terms than if you were to go through the court process to work out all the contested details of your divorce. In contrast to litigation, mediation is a guided negotiation process that promotes amicable cooperation and a mutually beneficial end result. Let’s take a look at the many benefits of divorce mediation.

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The Harman undertaking – what is it?

Harman undertaking

Sometimes in life, people may find themselves dealing with more than one court process at the same time, for example they may be going through family court proceedings while they are also defending themselves against criminal charges in State or Territory courts. Sometimes the matters might be related, as is the case in a recent matter heard in the family courts involving a father who is litigating parenting proceedings as well as defending himself against sexual offence charges relating to his young daughter. Other times, the matters may be completely unrelated. Either way, in situations where there are multiple court proceedings afoot, something called the Harman undertaking can become relevant. Let’s take a look at what this legal term means.

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Family court appeal – don’t fight a losing battle

family court appeal

A recent appeal case highlights the need to really consider the merits of the grounds on which you want to appeal your family court matter’s outcome, lest you embark on a costly and futile process that only causes you more pain in the end…

This parenting matter (called “Saltern & Mink”) involved a father who had perpetrated assaults on a mother, and their 2 year old child had been exposed to the family violence. Because of the findings of a risk of family violence and risk of harm to the child, the trial judge said, “the presumption as to equal parental responsibility does not apply and the inability of the parents to cooperatively co-parent and the need for consistent decision-making dictates that as the primary caregiver for the child the mother should have sole parental responsibility”. Orders were made by the trial judge which intended to protect the child by imposing limited daytime periods of contact, and no overnights, with the father. The father appealed these orders, but was unsuccessful.

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Litigation funding orders – how do they work?

litigation funding orders

An ex-wife in a family court matter was told she could access her superannuation to cover her legal fees instead, after she applied to the courts to have her ex-husband contribute to her legal costs via a litigation funding order. What are litigation funding orders and when can they be issued? Let’s have a quick look.

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Equal shared parental responsibility: what does it really mean?

equal shared parental responsibility

One of the biggest misunderstandings of Australia’s family law is that the presumption of equal shared parental responsibility means that mums and dads must equally share the custody of a child. In fact, the Family Law Act 1975 (the Act) doesn’t say exactly how parents must divide time with their children. There is no automatic “50/50” or formula when it comes to child custody in Australia. Let’s take a brief look at what the concept of equal shared parental responsibility actually means.

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Coercion and control…and loss of custody

coercion and control

The family courts take family violence very seriously, to the point where if it is found to be present in a parenting matter, it rebuts the law’s presumption of equal shared care, and overrides the child’s right to a meaningful relationship with the violent parent. And in 2011, the Family Law Act 1975 was amended so that the definition of family violence was broadened to include behaviours involving coercion and control, not necessarily obvious physical violence. Another aspect of our family law system is that courts demand that co-parents support and facilitate their children’s relationship with the other parent. And in cases where a parent deliberately tries to thwart a child’s relationship with their other parent, this can also have the consequence of the court making changes to a child’s custody arrangement.  These two related issues—coercion and control, and lack of support of the other parent—came to the fore in a recent appeal case and it highlights just how crucial they are when courts consider the best interests of a child.

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Changing your child’s surname

changing your child's surname

Changing your child’s surname: Children’s surnames can be a very contentious issue between separated parents and in fact sometimes you’ll see all other aspects of a parenting matter being resolved, but this one sticking point remain: what the child’s surname should be. Intricately connected to questions of identity and relationships, it’s no surprise that splitting parents sometimes disagree on children’s surnames. Some parents suspect a party wants to include a surname as some kind of symbolic “ownership” or to signify “branding” of a child. Others don’t want to have to go through life confronted by their ex’s name daily. Parents may well have their own reasons for wanting their child to have a certain name. But when it comes down to a decision by a family court judge, the only thing that matters is what’s in the best interests of the child.

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What happens if parents oppose grandparents’ involvement with children?

parents oppose grandparents

What happens if parents oppose grandparents’ involvement with children?: When parents separate, grandparents can find their relationships with their grandkids affected, sometimes to the point where they are no longer able to see their grandchildren. Do grandparents have any legal remedies under Australia’s Family Law Act? And what happens when parents oppose grandparents’ applications in the family courts?

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COVID vaccination and family law – what to know

COVID vaccination and family law

COVID vaccination and family law – what to know: Vaccination generally is one of those issues on which parents can have very polarised views, and with the world’s hopes currently pinned on a mass rollout of the COVID vaccines, there is potential for court disputes over COVID vaccination of children. Let’s take a brief look at the issues around vaccination and family law.

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Family court no place for children

family court

A family court judge was startled to discover a little girl playing near her mother during submissions in a parenting matter heard in the Melbourne courts. With children not in fact permitted to be present in court during hearings of family law proceedings, it seems that nevertheless, somehow, this little girl managed to bypass whatever court procedures are in place to prevent such occurrences. The published judgment does not make clear whether the child was removed from the courtroom for the remainder of the hearing. But the mere fact that the little girl was brought into the courtroom turned out to be a strategic error by the child’s mother, with the judge saying this action was more proof of the mother’s inappropriate decisions in relation to parenting the girl. Let’s have a quick look at this case.

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New research pinpoints self-represented litigant issues

self-represented litigant

Self-represented litigants: There’s a huge pool of Australians who represent themselves through family court, known as self-represented litigants. For example in 2019-20 the Family Court said at least one party was unrepresented in 40% of trials. Why do people represent themselves rather than hire a lawyer? There’s a range of reasons.

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Win for Australian wife in cross-border divorce case

cross-border divorce

Cross-border divorce: Australia’s highest court has issued a ruling that divorce orders issued by a Dubai court do not stop a wife pursuing a property settlement and spousal maintenance through Australia’s family courts. The wife will still have rights to pursue proceedings under our Family Law Act despite the Dubai court having already issued the husband with “irrevocable fault based” divorce orders which, under the local law, extinguished her right to seek property orders in the Dubai courts. This case is interesting because in our globalised world, it’s very common to find Australians who have married and divorced in foreign countries who find themselves having to deal with the complexities of multijurisdictional family law and cross-border divorce issues. Let’s take a quick look at this case.

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Lack of genuine “independent legal advice” voids prenup

prenup

Prenup: You may already be aware that for a Binding Financial Agreement, aka a “prenup”, to be valid, you and your spouse need to have followed certain rules when entering into the agreement. One such rule is that each party needs to have obtained independent legal advice before signing on the dotted line. As proof, the parties then receive a certificate from the solicitor who gave them the advice. But what does the “independent legal advice” actually have to consist of to be valid? That’s the critical question that came up for debate in a recent case in the courts which had to determine whether or not a prenup was binding. Let’s take a look.

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What are “contributions” in family law?

contributions in family law

Contributions in family law: When working out a property settlement, one of things considered is each party’s contributions to the matrimonial asset pool. Involving the assessment of a complex “myriad of contributions”, this assessment requires the judge to determine the weight to be placed on each party’s contributions, in percentage terms. It can be a contentious decision with litigating parties wanting to show that their contributions should be valued as greater. It can be a tricky decision for the courts because of the difficulty of weighing up contributions that are not always measurable in financial terms. Let’s have a look at the different kinds of contributions that exist.

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Custody of transgender child lost by non-accepting parents

custody of transgender child

A case proceeding through the court system involving custody of a transgender child is causing controversy and once again shining the spotlight on the difficult nature of transgender parenting matters. Although the parents claim their child’s removal from the home was due to the system trying to “bully” them into consenting to hormone treatment, the magistrate framed the protective order decision as being necessary to prevent the child from being mentally abused by the parents, who do not accept that their child is transgender. Let’s take a look at this important case.

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Can you subpoena your ex’s medical records?

subpoena your ex's medical records

Can you subpoena your ex’s medical records, or can your ex subpoena yours?  A recent case in the appeals division of the Family Court tackled this issue, with a mother determined to find out if her ex-husband had any mental health diagnoses. She wished to know this information as she wanted to ask permission to introduce it as new evidence in the appeal she was running against parenting orders. She first found out the names of her ex’s treating practitioner’s through a subpoena to Medicare. In the current proceedings she was then able to successfully obtain subpoenas for each of the practitioners to produce the medical records of her ex. Let’s take a look at the case and the issues it raises:

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Brave mother praised for selfless child-focussed consent orders

consent orders

Consent orders: A mother who has been completely rejected by her daughters since separating from their father has agreed to consent orders which have “nothing in them for her”. The experts in the matter, though, as well as the judge who formalised the consent orders, have commended the mother for her agreement to an outcome that essentially deprives her of a relationship with her children at the moment, in the hopes that interventions and a “time of stability” for the children will pave a way for future reconciliation and healing. In a case where the father has been shown to bear responsibility for the damaged relationship that the children now have with their mother, you may be wondering why it was seen as a good thing for the father to have full custody and the children only to spend time with their mother if they wish to—which they currently do not. Let’s take a look at what happened in this case.

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Hague Convention and child abduction: Consent vs acquiescence

Hague Convention

Hague Convention: Two New Zealand children who were retained by their mother in Australia have been ordered to be returned to their home country after the father successfully launched a return order application pursuant to Australia’s regulations relating to the Hague Convention on the Civil Aspects of International Child Abduction. The mother had argued the father had either consented or acquiesced to the kids’ retention in Australia, but the court rejected this. It’s worth taking a brief look at the issues in this case and what the difference is between consent and acquiescence.

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Does the court listen to children?

Does the court listen to children

Does the court listen to children?: The experience of children and family court is one of the issues that’s being explored in the current phase of family law reform, and it’s a subject that has been frequently debated over the years. The question is how to improve kids’ experience of family law proceedings and ensure their voices are being heard in the family court system. A recent case in the family courts shows how the courts might approach a situation where an older child has expressed views regarding custody.

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Appealing inadequate reasons in family court

appealing inadequate reasons

Appealing inadequate reasons: If you are unhappy with the outcome of your family law court matter and are considering an appeal, there are limited grounds on which you can do so. It’s always important to remember that an appeal is not a second try at having your matter heard but instead is a path to overturning the decision of a trial judge if you feel they made a mistake. Some commonly argued grounds for appeal include: if the judge didn’t properly consider the evidence, if the judge made a decision that was plainly wrong, if there was a denial of natural justice, or if the judge gave inadequate reasons for the decision. In this blog I’ll take a quick look at appealing inadequate reasons in family court.

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Should you get a divorce financial planner?

divorce financial planner

Divorce financial planner: So, you already know that a family lawyer will benefit you when you’re going through a divorce, but have you considered whether or not you should also engage a financial planner who specialises in divorce? Here’s a rundown on why hiring a specialised financial planner for your divorce might be a smart move for you.

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De facto property settlement: “Infatuation” led to unfair house gift

de facto property settlement

De facto property settlement: All’s not fair in love…The appeal courts have ruled that a man’s “fixation” with his younger de facto wife—and her taking advantage of it –led to him making an enormous error of judgment in gifting her his house. The couple were ordered to instead to each keep half the property. In this case, the husband’s vulnerability arising from his infatuation with the wife is “front and centre stage”.

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What is an application for a stay?

application for a stay

Once you have received a family court judgment, you must follow the orders contained in it exactly or risk being in breach and facing potential penalties. If you object to orders in your judgment, and decide to appeal your matter, this doesn’t automatically suspend the enforcement of the judgment’s orders. They will stay in force pending the outcome of your appeal, unless you make an application to have the orders stayed. Here’s a brief look at what’s involved with an application for a stay.

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Making a settlement offer: what to consider

settlement offer

If you’re keen on achieving an out of court, private resolution to your property division after your separation, one of the most pragmatic and sensible things you can do is to make a settlement offer to your ex. A settlement offer is simply a proposal that you send to the other party which sets out terms for how the matter could be resolved. Should a settlement offer be accepted, it means you can avoid the financial and emotional costs of litigating your matter through the courts, fast-track resolution of the matter, and ideally achieve a much more amicable parting of your ways with your ex.

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New court forms regarding risk of abuse

family violence risk notification

If you are involved in a parenting matter proceeding to litigation, you’ll be required to file initial information which notifies the Court whether consideration of risk of child abuse or family violence will be a factor in your matter. Previously, there were three different forms that could be filed and the procedure varied across the two courts that handle family law matters, the Federal Circuit Court and the Family Court of Australia. Now, the Courts have revamped the process to streamline the family violence risk notification process and make it more effective—here’s what you should know.

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Debt and divorce: issues to consider

debt and divorce

Debt and divorce: With Australian families servicing record levels of household debt, it’s inevitable that separating couples will need to work out how to divide not just their marital assets but also their debt. Here’s a look at issues to consider in relation to debt and divorce so that you can best recover financially from the turmoil of separation.

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Important Christmas family court dates

Christmas family court

Are you intending to file an application in the Family Court or Federal Circuit Court this year? If so, please note that the absolute last date to file an application in the Family Court this year is Friday, 13 November 2020. It’s therefore necessary to act without delay immediately if you hope to file an application. The courts have also just released their information regarding registry opening hours for the festive season.

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Family court merger plan: what’s the problem?

family court merger

Streamlining the family court system has been frequently debated over the past few years, with the hope that its productivity and efficiency could be improved by eliminating the duplication of processes and confusion experienced by court users who are often bounced between the two Australian courts that hear family disputes, the Family Court and the Federal Circuit Court. The Attorney-General Christian Porter has said the family court ‘merger’ will benefit families by giving them a single point of entry into the family law system and not requiring them to deal with two courts with different rules, forms and processes. But critics say the merger is deeply flawed. So what’s the problem? Let’s take a look.

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Collaborative divorce: how to get your ex to agree

collaborative divorce

Collaborative divorce: If you’ve been considering the benefits of using Collaborative Law to resolve issues relating to your divorce, the sticking point may be that you are unsure whether your ex would even agree to try the process out. But with all the wide-ranging benefits that go with a collaborative divorce, it’s definitely worth seeing whether you can convince your ex to give this Alternative Dispute Resolution process a try. Let’s take a look at strategies for persuading an ex to consider a collaborative divorce.

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What you need to know about the Section 60I certificate

Section 60i certificate

Section 60I certificate: Under Australia’s Family Law Act 1975 if separating parents can’t agree on parenting arrangements and wish to go to court to have their issues decided by a judge, they have to first attend compulsory mediation. Mediation takes place with an accredited Family Dispute Resolution (FDR) practitioner, aka the mediator. It’s aimed at keeping as many families as possible out of the troubled court system by helping them to settle matters without litigation. Before a Court can make Orders about parenting, it needs to be satisfied that one or both of the parents have attempted mediation, which is filed at the time of filing an Application in  Court. After you have attended mediation, or if you have attempted to participate in mediation but the other side has refused to participate, then the mediator can issue a certificate, formally called a section 60I certificate, confirming your participation or attempt to participate. Here is a rundown of what you should bear in mind about mediation and Section 60I certificates.

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Can you appeal consent orders?

can you appeal consent orders

Can you appeal consent orders? Say you and your ex-partner have agreed the terms of consent orders and have had the consent orders formalised in the courts. What happens if you then have a change of heart afterwards and wish to “undo” the consent orders in some way? In the legal industry, this experience is commonly known as “settler’s regret”—and it often leads to people attempting to set the orders aside by lodging an appeal. But can you appeal consent orders? Let’s take a look at what happens in such a situation.

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Different kinds of spousal maintenance

spousal maintenance

After the end of a marriage or de facto relationship, one party may make payments to the other, which is known as spousal maintenance. This may be ordered by the family courts, or it may be set up by the parties in a private arrangement. When dealt with in the courts, these matters (in all states and territories except WA) are handled under the Family Law Act 1975. It can be paid either in a lump sum, on an interim basis or on an urgent basis. Let’s take a quick look at the different types of spousal maintenance.

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Family law relocation: no need for “compelling reason” to move

family law relocation

Family law relocation: The recent case pseudonymised as Gusta & Gusta heard in the family courts raises some issues around family law relocation matters. If you have been considering steps to take in relation to a family law relocation—whether you wish to move away with your child, or you wish to prevent the other parent moving—it may interest you to know that the courts can’t prevent you moving on the basis that you haven’t demonstrated a “compelling reason” for wanting to do so. Although intuitively it may feel as if it would sway a court in your favour if you can prove you have a really good reason for moving, in truth family law relocation matters are determined by many different factors.

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“COVID appeal” blaming technology dismissed

COVID appeal: It was anticipated that the family courts would begin seeing appeals come through wherein litigants argued that they were not afforded a fair trial due to limitations caused by the court’s response to the COVID-19 pandemic. And now, a father who wanted to reopen parenting proceedings based on “technological issues” during his trial hearing has had his “COVID appeal” application summarily dismissed, with the courts saying the technology worked fine. Let’s have a quick look at what happened in this matter.

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Transgender kids: Landmark decision hailed

transgender

Transgender teens: A family court ruling has further clarified the legal position for transgender teens and their parents in relation to accessing medical treatment. A teen, known as “Imogen”, has received authorisation from the family court to access oestrogen treatment as part of her transition, despite her mother’s opposition. In the case, the teen’s parents disagreed on consent to diagnosis and treatment, with the father supporting his daughter while the mother argued the teenager was not competent to give consent.

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De facto relationship of carer not upheld

de facto

De facto: A quadriplegic man’s long-time carer has failed in her bid to have the family courts designate the relationship between them as “de facto”. The woman had hoped to bring a property claim against the now-deceased man’s estate. However, the primary judge in the matter concluded no de facto relationship ever existed between the two people, and when the woman appealed this decision, her appeal was dismissed with the appellate judges finding the primary judge had made no errors. Let’s take a quick look at this case.

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Can you arbitrate a parenting matter?

can you arbitrate a parenting matter

Can you arbitrate a parenting matter?: You may have heard of arbitration as a potential Alternative Dispute Resolution process for family law matters. However, you may not be so clear about what kinds of family law matters can be arbitrated—and may be wondering “can you arbitrate a parenting matter?” So here’s a quick look at the use of family law arbitration and whether it may be suitable for you.

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Child abduction and family law social media fouls in criminal matter

child abduction

Child abduction: A man was recently sentenced for his role in aiding in crimes involving aspects of family law in which he allegedly assisted a child abduction-facilitating group. The 84-year-old Townsville man was convicted and released on a $2,000, 18-month good behaviour bond after receiving a recognizance release order. He had pleaded guilty to one count of dealing in the proceedings of crime to the value of $1,000 or more, contrary to section 400.6 of the Criminal Code 1995.

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The Lighthouse Project will light way for at-risk families

Lighthouse Project

There are currently several government inquiries underway into family law and family violence, which are hoped to ultimately lead to significant improvements to the family court system. However, this does not mean that the country’s policymakers should idly await the outcome of the inquiries when it is possible to take action in the meantime to address known problems with credible solutions. So it’s good to see that there has been some political movement in the crucial area of supporting at-risk families through the family court system.

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Family court gender bias: Judge not biased simply because of her gender

family court gender bias

Family court gender bias: A man’s “ludicrous” argument that a female family court judge was biased against him due to her gender was tossed out of court for the second time when appeal judges dismissed his appeal in relation to a family court gender bias.

In the case, which the courts have given the pseudonym Walker and Page, a father appealing a family law matter had wanted his trial judge to recuse herself on the basis that, being female, she would be prejudiced by her gender. But the courts have now dismissed his appeal in relation to this, saying the family court gender bias argument was “clearly without merit”.

The parties had been engaged in property settlement proceedings for more than 10 years after their final separation. Final property orders between the parties were made in 2018. He also tried to appeal on separate, procedural grounds but these were also dismissed.

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Family court fees and costs – what to expect

family court costs orders

Family Court costs orders: We recently wrote about undefended hearings and you may have been wondering if there are any penalties for people who don’t show up for their court proceedings in the family courts. Well, it’s bad enough being completely unable to defend your case—in the case we mentioned last time, the absent father’s material was not even read as he was not there. But there can also be financial consequences in the form of costs orders.

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Father’s hostile texts are family violence

hostile texts are family violence

Hostile texts are family violence: We’ve all done it–sent an angry text or email in haste only to regret it later on. It’s when you’re going through family law proceedings, though, that such messages can really come back to haunt you. If you think that the odd text message calling your ex nasty names is just a trivial matter, then you should think again.

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What if your ex dies during family law proceedings?

ex dies during family law proceedings

What if your ex dies during family law proceedings? It’s never a pleasant thing to contemplate, but the death of you or your spouse is something that should be considered when it comes to family law proceedings given the potential ramifications. So let’s have a look at the issues.

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Court deadlines: Late for a very important date

court deadlines

Court deadlines: One can just imagine the enormous stress felt by a mother and her lawyer as they tried to electronically file a “voluminous” Appeal Book that had been received from a third party solicitor at the last minute–only to have the file’s large size mean the download to the court was only completed 11 minutes after the expiry of the deadline to file. Luckily for the mother, however, the court ruled the delay had been properly explained and that the 11 minutes were not a “material” delay. As a result the mother’s appeal was reinstated.

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ICL needed, say appeal judges

ICL

ICL: A mother has successfully appealed her family court matter after the trial judge was found to have erred, effectively placing her in an “impossible position” in her court proceedings.  In the appeal matter of Gosai & Gosai (court-ordered pseudonyms), the mother was appealing an order to return her two children, aged 12 and 15, to live in India where their father resides. The matter focused on questions around independent evidence of the children’s views and whether or not an Independent Children’s Lawyer (ICL) should have been appointed. Let’s take a quick look at the issues.

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Does your divorce need a Confidentiality Agreement?

confidentiality agreement

Confidentiality agreement: If you are going through a divorce and property proceedings in the family law courts you are probably already aware of your duty of full and frank disclosure of financial information to the other side, but maybe you have concerns over information you may have to share that may need to remain confidential for certain reasons. How do you resolve this apparent conflict? Here’s a brief look at the issues.

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What is an “undefended hearing”?

undefended hearing

It may seem obvious that an undefended hearing in our family law courts would mean continuing litigation in circumstances when the other party has failed to engage. After all, your ex simply not showing up in court can’t be enough to stymie your legal proceedings, so if a party fails to appear either at interlocutory, application in a case or final hearing stage, it’s possible for the courts to continue the proceedings on an undefended basis. This does not however mean that the appearing party will “win” every order they are seeking, although in practice it can give that party an inescapable advantage over the other.

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Expedition: hardship to a child

expedition

Expedition: In certain cases it’s possible to have your family court matter heard sooner, in what’s known as expedition. With expedition, a case is hurried along by giving it priority over other waiting cases so that it is heard and resolved more quickly. So what kinds of cases are granted expedition?

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Do I need a family lawyer?

People often ask themselves ‘Do I need a family lawyer’, when it comes to sorting out the ending of their marriage or de facto relationship, especially if they have an amicable relationship with their ex. Is it OK to go through a divorce without getting legal advice? In what circumstances does it make more sense to hire a family lawyer than not? Let’s take a quick look.

do I need a family lawyer

There’s lots of reasons why people don’t hire a lawyer for their family law matters–money of course being a major factor. People aren’t sure of the actual cost of legal representation, or what their budget really is, or if it will all be worth it in the end. (You’ll find there are lawyers across the spectrum to suit most budgets, with some offering the option of fixed fees so you know what your costs will end up being.)

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Family law in Australia: facts to know

Family Law: A lot of what we know about divorce we seem to pick up on the grapevine somewhere, and sometimes a few myths get into the mix as well.

Below, we clarify certain facts about divorce and family law.

Can I get a “quickie” divorce in Australia?

Not in the sense of it being instant or fast. Spouses have to have been separated 12 months or more before they can apply for a divorce. If reconciliation is attempted for three months or longer, the 12 month period begins anew. And the process of applying for a divorce and receiving the actual documentation usually takes around four or five months.

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Could you vary property orders because of COVID-19?

Property orders: In these challenging times, a UK family law firm asks whether you can reopen final property orders due to the impact of COVID-19. It’s a good question that we could also ask here in Australia. In fact we recently looked at the question of whether you can reopen final property orders and concluded that, while possible, it’s certainly very difficult to pursue and many such applications fail. But could the pandemic factor into an application to vary property orders, given it is so unprecedented in its impact on people’s financial circumstances?

property orders

The courts have the impetus of ensuring property settlements are “just and equitable” before making final property orders that are binding. The aim of the settlement is to create fairness, certainty and finality, to protect assets acquired after separation, and to take into account issues such as stamp duty and capital gains tax advantages. The ultimate goal is for former couples to go their separate ways without any ongoing financial ties or obligations, and with the door closed on future litigation—known as the “clean break” principle.

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Artificial intelligence and family law

artificial intelligence and family law

The Australian Government has just launched its artificial intelligence and family law dispute resolution website called AMICA, which was developed by National Legal Aid. Attorney-General Christian Porter says the tool will help people with working out their property settlements and parents can also develop parenting plans for their kids. The AI tool is designed to be used only by “relatively amicable” splitting couples, not those engaged in contentious disputes. But how helpful is this technology really?

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Tips for selling property during COVID-19

selling property during COVID-19

Selling property during COVID-19: The housing market at the moment is going through a great deal of uncertainty thanks to the COVID-19 pandemic, with many sellers withdrawing from the market and buyers putting their purchase plans on hold. However, in some cases you may not have much of a choice when it comes to selling property during COVID-19, such as if property orders in your family law matter demand that certain matrimonial property is sold. If you don’t have the option of “wait it out”, as is being recommended by financial advisors with regard to dealing with property at the moment, what are some tips for how to go forward in this difficult time?

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Cohabitation Agreement – yay or nay?

Cohabitation Agreement: Australia’s Family Law Act 1975 allows parties in relationships, whether de facto or married, to enter into contractual agreements known as Binding Financial Agreements (BFAs). BFAs for couple who are planning to get married are colloquially known as “prenups”. BFAs for de facto couples are sometimes referred to as “no nups” but a more formal name is a Cohabitation Agreement. Modern day relationships don’t always result in marriage and plenty of people simply live together, and there’s been an increase in people wishing to enter Cohabitation Agreements. Here, we look at some of the benefits and what to watch out for.

cohabitation agreement

BFAs are legally binding agreements that set out how parties to a relationship wish to divide their assets in the event of a future separation. Although people have rights and entitlements under the Family Law Act relating to property, entering a BFA means that contract will determine the rights and entitlements instead.

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Vexatious proceedings order doesn’t stop mother making new applications

A mother who was made subject of a vexatious proceedings order in 2014, preventing her from initiating further proceedings in the family court without seeking leave (permission) of the court to do so, has since attempted at least 15 times to seek leave to make various appeals in her matter. All have failed, including her most recent application for leave to appeal, which was recently heard in the family courts under the pseudonym Spencer & Spencer.

vexatious proceedings order

But despite her most recent failure, it’s interesting because even if someone is prevented from bringing proceedings due to being declared a vexatious litigant, there doesn’t seem to be any way of stopping them from filing endless applications seeking leave to bring proceedings. Theoretically, a vexatious litigant could continue to—vexatiously–file applications seeking leave to bring proceedings until their funds run out.

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What to consider in an international divorce

International divorce: In our globalised world, it’s common for people from different nationalities to meet, fall in love and partner up. But unique problems can arise when such relationships break down. Let’s take a brief look at some of the things to bear in mind if you are splitting from a spouse and there is an international context.

international divorce

What are some of the legal issues surrounding separation and divorce if partners live in different countries or the relationship had assets that were located overseas? Issues will need to be considered regarding where legal proceedings should take place (the jurisdiction), how assets will be treated, and how enforceable any Australian agreements and orders might be.

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Family violence during COVID-19: Enhancing safety in the home

Family violence during COVID-19: There have been many fears in the community that family violence has likely increased during the COVID-19 pandemic, even if it may go unreported. Aside from the fact that being in lockdown may exacerbate abuse simply due to the greater proximity and time spent with an abuser, it’s also well established that abusers often use isolation as a tool to control their victims.

Family violence during COVID-19

It’s also understood that it’s not a simple matter of telling victims to “just leave” and therefore many will continue to live alongside their abuser during these difficult times. It may not even be a matter of choice: during lockdown, it has become even harder for people to decide to leave a relationship, as our liberty to travel freely has been restricted, and others have suffered job losses meaning economic hardship has made moving and leaving a relationship more difficult. So how can the home be made a safer place in the context of family violence during COVID-19? Support service Domestic Violence Crisis Service (DVCS) has put together an informative article on enhancing safety within the home during the pandemic, and we encourage you to visit their site to learn more about:

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Confusing family law on children’s care prompts bill for change

Family Law: A Queensland MP has put forward a private members’ bill to the Federal Parliament seeking to remove the presumption of equal shared parental responsibility removed from the Family Law Act 1975 (the Act). Over the years since the equal shared parental responsibility provisions were introduced in 2006, there has been a lot of debate over them, and a lot of confusion in the community over what the laws actually mean.

family law

Federal Labor MP Grant Perrett’s bill will need the support of the Coalition if it has a chance of being put to a vote. However the bill has been supported by many stakeholders including women’s advocacy groups.

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Family violence and family court – a case study

With the focus of two current Government inquiries which seek to examine family violence issues, we hope that positive political steps can be taken to properly deal with this ongoing problem in Australia. In the meantime, let’s take a look at a recent case in the family courts to see how matters involving family violence are handled there. While the circumstances of each court case are obviously unique and involve different families, family law professionals and judicial staff, the case of Jardine & Sackville (court-appointed pseudonyms) illustrates how parenting disputes involving family violence can be resolved in the family court system.

family violence and family court

In this case, the mother sought for “the father’s elimination from the children’s lives”. It’s a stark phrase that, in the absence of context, can cause instant outrage. But when you read a judgment like the one in this case, you can see why the court system found this to be a justified outcome and in the children’s best interests.

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Did a father have a “reasonable excuse” for a breach of orders? – Case study

Breach of orders: The recently heard appeal case of Carrington & Gunby (court-appointed pseudonyms) dealt with whether a judge had erred in finding that a father did not have a reasonable excuse for withholding a child in contravention of parenting orders. Under the Family Law Act provisions relating to reasonable excuse, in defending against a contravention allegation using the grounds of protecting a child from harm, a person has to prove both that they had reasonable grounds for retaining the child (in breach of orders) and also that the retention period wasn’t longer than was “necessary” to protect the child. In this case the appeal court found no errors by the primary judge and the case was dismissed. Let’s take a closer look at this case.

breach of orders

The case contained allegations of family violence, namely that a mother’s new partner had harmed a 12 year old child. This was the basis of the child’s father refusing to return the child to the mother’s household, in breach of orders.

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The “reasonableness” of addbacks

Addbacks: Say your ex has spent matrimonial funds on defending themselves in an unrelated legal matter. When it comes time for your property settlement to be worked out, shouldn’t the family courts place that liability squarely on the shoulders of your ex, since their legal troubles are their own? Why should you have to share your ex’s costs in that regard? Can you ask the family court to take that expenditure into account by dealing with it as an addback on the balance sheet? Let’s take a closer look at the subject of addbacks in property settlements and how courts go about handling such a situation.

addbacks

“Addbacks” occur in property settlements when a court adds back funds (or other property) to the balance sheet. While the Family Law Act does not define the categories that are suitable for such an alteration in property interests, three common categories have been identified in the case law. These are:

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Expert witness family court controversy

Expert witness: After a family court report writer recently pleaded guilty to child sex abuse charges, there have been calls for the family court to review the cases he was involved in, says the ABC. The ‘celebrity psychologist’ Bob Montgomery provided family reports to the court as a private expert witness, so was not employed by the family court itself. But the case has again raised concerns over governance of family report writers, whether they are directly employed by the court or acting as external contractors employed by parents and lawyers.

expert witness family court

Montgomery, who ran a Gold Coast private psychology practice, had once appeared on TV reality show Big Brother as a consultant. He also appeared in other media, including on ABC radio. But it’s his role as a family court report writer that is most alarming.

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What is “privilege” in family law?

You may have come across the term “privilege” already or it may be new to you, but as it’s a fundamental concept in our justice system, including in the family law system, we thought we’d take a moment to look at what it actually means and offer some tips in relation to how privilege in family law is applied.

privilege in family law

Privilege in family law can basically be understood as a method of keeping certain information of yours confidential–between you and your lawyer only–and preventing it from being disclosed to your ex or their lawyer or even a court. The purpose of having “privilege” in the legal context is that people need to be able to have the peace of mind that they are able to speak candidly with their lawyer and exchange private information without fear that it could be used against them in litigation. Further, people need to be able to protect their position and not reveal strategic or procedural plans as they head towards settlement or litigation in their matter.

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Positives of the pandemic

Necessity being the mother of invention, a wave of disruption and innovation has swept through the legal industry in the wake of the COVID-19 pandemic. Here are some of the ways that access to justice has taken a great leap forward in recent times—and what some of the potential problems may be for consumers and practitioners.

pandemic

Has COVID-19 caused a technological revolution in the courts? Well, it has probably spurred on the disruption that has already been years in the making.  For example, this article argues that in the US, the criminal law system is following the lead of the family law system in the uptake of new technologies, and that the COVID-19 pandemic is what has given it all a jump-start.

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Polyamory and property settlements: NZ case raises issues

The law in Australia is clear: a marriage or a de facto relationship is between two people only. But where does this leave people in a polyamorous domestic relationship when it comes to separating and dividing up their assets in a property settlement? Polyamory and property settlements is an unusual aspect of family law, but should people in non-conventional romantic relationships find themselves in a legal blind spot, or does the family law legislation need changing? A New Zealand case described as the first of its kind puts the spotlight on polyamory and property settlements.

In New Zealand, the family law system is a little different to that of Australia, with property settlements discretely dealt with under their Property Relationships Act. By contrast property settlements in Australia are governed along with other family law matters via our Family Law Act.  But in both cases, the law does not appear to cover multi-partner relationships.

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Inheritance hunters: the spectre of predatory marriages and separations

With Australia’s ageing population, governments have made tackling elder abuse a national priority in recent years, as they seek ways to support and safeguard older people’s autonomy. One of the areas where there is a tension between the need to balance the autonomy of older people with the need to protect them from being vulnerable to abuse is the area of predatory marriages and separations. Let’s look at some of the issues around this subject and suggested ways the system can be improved to confront the escalating challenge of elder abuse in our society.

predatory marriages

Although people shouldn’t be regarded as vulnerable just because of their older age, there are of course factors associated with age that can make people more prone to abuse. Such factors might include physical disabilities or cognitive impairments (such as dementia). When people become vulnerable due to such factors, relationships of dependency may develop with family members, friends, carers, even neighbours or other acquaintances. Those relationships might be completely innocent but in some cases, there’s something much more nefarious going on.

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Family law and social media

Family law and social media: People’s use of social media during divorce or court parenting proceedings is in the spotlight after a game-changing “landmark ruling” in the US state of Massachusetts. A divorcing father there had been making negative posts about his ex-wife and their parenting dispute on social media until a family court banned him from making such posts. However, that ban was overturned by a Supreme Court in Massachusetts on the grounds that preventing the father’s freedom of speech in this way was unconstitutional. While the situation is different in Australia, given we have very different Constitutions and family law legislation, it’s still worth taking a look at the US ruling.

family law and social media

In the US, so-called “involuntary non-disparagement orders” are similar to the non-denigration orders that are routinely included in Australian family court judgments. Here, non-denigration orders usually take the form of something like:

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How to choose your ACT family lawyer

Need an ACT family lawyer? Call Alliance Family Law on (02) 6223 2400.

If you have been thinking about engaging an ACT family lawyer, you may have started researching online and been confronted with the huge range of family lawyers out there.  So how do you choose the right law firm for you? Here, we take a look at some things to consider to help you make a decision with confidence.

Size of firm? Remote and virtual ‘new law’ firm? Good old fashioned city office that’s been around for a long time?

ACT Family Lawyer
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Family Law Act and family law inquiry—an update

Family Law Act: With all that’s been going on surrounding the coronavirus pandemic, the Government’s family law inquiry which was due to be completed in October this year has been similarly put on hold.

Family Law Act

Due to the coronavirus pandemic, the family law inquiry’s Joint Select Committee has had to postpone its upcoming hearings in Tasmania, Victoria, SA, NT and WA which had been scheduled to run until June. In the current circumstances it’s hard to see how the Committee will report back its findings by the original due date.

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Parenting Orders: Family court COVID-19 parenting cases being heard

We’re seeing cases start to come through the family court system now concerning parenting disputes directly relating to the COVID-19 pandemic, with contravention applications being filed over non-compliance with court parenting orders. The outcome of one such recent case, pseudonymised as Kardos & Harmon, could be helpful in understanding how the court system views the behaviour of parents during this extraordinary time. And the case may give parents pause if they are considering bringing court action against a non-complying parent during this time.

Parenting Orders

This case involves a young separated couple sharing custody of a three year old child. The child lives with the mother in Adelaide and as per court orders made in 2018, had been spending regular time with the father in Brisbane. The orders required the parents and the child all making regular interstate travel to conduct handovers at airports.

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No-fault divorce: A fault in our laws?

In the US, a celebrity called Kristin Cavallari recently caused a small stir when her newly filed divorce documents were allegedly leaked and revealed to contain the salacious words “inappropriate marital conduct”. The splitting couple had released a mutually-amicable statement after Cavallari’s husband had filed for divorce, initially citing irreconcilable differences. But the leaks allegedly expose that Cavallari has claimed in court documents that her ex “is guilty of such inappropriate marital conduct as renders further cohabitation unsafe and improper”. While Australia has had no-fault divorce since the Seventies, in many US states it is still required for you to prove there are grounds for divorce, such as infidelity or abuse.

no-fault divorce

Tennessee is one such fault state, and in fact has 15 different potential grounds for divorce.  A US family law specialist Marlene Eskind Moses said:

“Irreconcilable differences is certainly the least aversive and the more amicable one. Marital misconduct is the next least-aversive and they can kick up from there.”

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Fast-tracking lockdown family court cases

There have been widespread fears that the Government’s social restrictions during the Covid-19 pandemic and lockdown could see an increased level of family violence, and now the Government has responded by creating a new Covid-19 list for urgent parenting cases to be heard in courts within 72 hours to prioritise those matters involving family violence or risks to children.

lockdown

Announced by Chief Justice of the Family Court and Chief Judge of the Federal Circuit Court of Australia, Will Alstergren, the new list will be a way for the courts to triage the cases that come in.

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Apprehended Bias: What happens if you feel your judge is biased?

Sometimes a party in a family law litigation matter feels there is judicial bias against them. Although bias is rarely actually found to be established, concerns over bias are taken very seriously because the impartiality of the judiciary is a fundamental component of our judicial system. The public needs confidence in the administration of justice and the decisions that judges hand down. Not only must justice be done, but it must be seen to be done.

Apprehended Bias

Bias in the system can be real (“actual bias”) or simply perceived (“apprehended bias”). There are well established tests for each of these types of judicial bias but how the tests are applied varies depending on the facts of the matter.

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Co-parenting: New ways to resolve conflicts

Want to try something different to resolve your co-parenting matter quickly and sensibly? Instead of waiting for the Covid-19 pandemic to be over and the legal system to return to normal–and possibly suffering through ongoing parenting conflicts, stress and uncertainty in the meantime—you might like to consider how we family lawyers are adapting our approaches to offer creative, solution-focused services to resolve your disputes.

co-parenting

Here at Alliance Family Law, we are helping clients resolve co-parenting issues in innovative ways–and by this we don’t simply mean an increased use of videoconferencing technology (though this certainly helps!).

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An order for security for costs — what does it mean?

What happens if you feel the judge made a mistake in your family law matter and you decide to launch an appeal, but your ex then applies to the court to force you to put forward a large sum of money in advance to cover your ex’s potential costs if you lose—but you can’t afford it. That’s called an application for security for costs. Does that ruin your chance of appealing your matter?

order for security for costs

On the other hand, if the court doesn’t make such an order to put funds forward to cover your ex’s costs in fighting the appeal, your ex may decide not to proceed if their costs will be too high for them. It’s a difficult situation for the courts and involves assessment of a range of factors. Let’s take a look.

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What is a “warrant for possession” of a property?

A recent case in the family court (given the pseudonym Ahsan & Ahsan) related to the enforcement of orders and looked at the remedy of the issuing of a warrant for possession of real property when a party has not complied with court orders to vacate the property. So what exactly is a warrant for possession?

warrant for possession

A warrant for possession issued by the courts authorises an enforcement officer to enter a property and give possession to the person entitled to possession. The power to issue a warrant for possession of real property is found in Part XIII of the Family Law Act 1975.

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Telehealth: Free full access enabled for quality psychological support

Co-parenting with a difficult ex? Worried that the COVID-19 lockdown is going to exacerbate conflict with your co-parent? Need help with managing divorce and separation right now and not sure where to turn? Well, you’re in luck because the providers of a leading telehealth psychological support service have just announced that they are offering all Australians full access to a program that normally costs $550—and for the rest of this month, it won’t cost you a thing.

Telehealth

Relationspace Online wishes to play its part during this very difficult time and has therefore activated full access to its program until 30 April 2020, with all enrolments during this time being granted unlimited access to the full 8 hour program completely for free.

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Drug testing in family court – how reliable is evidence?

A case in the UK has raised the interesting issue of falsification of drug testing service reports after a father provided a doctored report that ‘proved’ he was not using drugs. The falsification only came to light because the mother happened to think that the father’s hair appeared longer at custody changeovers than the length his hair sample was described as being in the test report. Could this happen in Australia? With drug testing in family court, should testing service reports really be provided to parents to submit to their solicitors or would it be better if they were directly provided by the service to the courts?

drug testing in family court

In both countries, when courts order drug testing to occur in parenting matters, the parties undergoing the drug testing are required to obtain the tests themselves from an accredited testing service, and the results are then provided to all parties, with solicitors providing them to the court. But how closely do the courts scrutinise the validity of these test results? Is it up to the other parent to assess whether the reports are valid?

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Can LGBTQ divorce be predicted?

LGBTQ couples now have the same marriage and divorce rights in Australia, and romantic relationships of each kind are similarly susceptible to ending for common reasons such as infidelity or simply “falling out of love”. However, LGBTQ couples could be facing additional pressure from unique factors influencing LGBTQ relationships, says new research out of the US. So what are the factors that influence LGBTQ divorce?

LGBTQ divorce

According to Adam P. Romero, co-editor of the article “LGBTQ Divorce and Relationship Dissolution: Psychological and Legal Perspectives and Implications for Practice”, we should be alert to these unique pressures on LGBTQ relationships that could lead to relationship distress and breakdown.

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COVID-19: What every co-parent needs to know right now

Please read the following important info for parents about COVID-19, family law and the family courts. Many parents are confused about the situation regarding co-parenting arrangements and court matters during the current crisis. People are asking if they still need to strictly follow court orders if they are afraid compliance might put their child at risk. Will matters proceed in court as normal? How can you change parenting arrangements if the courts aren’t operating as normal? We answer these questions and more below. Please share with family and friends who may be asking these questions and experiencing uncertainty regarding family law matters.

COVID-19

COVID-19: Family Court guidelines for co-parents

The Chief Justice of the Family Court of Australia has published some guidelines for parents in light of the COVID-19 virus. The full statement can be found on the Court’s COVID-19 page on its website. In the meantime, here is a summary of the highlights:

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How to prepare for divorce in quarantine

Your divorce plans are likely to be temporarily on hold while in lock down, as the world deals with the COVID-19 pandemic. If you are still living with your spouse but have decided to pursue a divorce in the future, this may mean awkward times together in quarantine with someone you do not wish to be with anymore.

divorce

But unless family violence is a factor, it’s likely to be bearable…if only just! While we all feel a considerable loss of control due to current events, you can help yourself deal with the uncertainty of the situation by using this time to proactively prepare for your eventual divorce. Because in fact there is a fair amount that you can do already before you may need to involve courts or lawyers. Of course, if you do wish to get legal advice, you are still able to access solicitors (here at Alliance Family Law, we are still operating and can assist you virtually).

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The intention is critical for gifts in family law

A husband who disagreed with a final property settlement has had his appeal dismissed, with the courts reaffirming the importance of establishing the giver’s intention at the time of giving. The husband’s parents had transferred a property to him and his wife jointly, but he argued it had been gifted solely to him. Looking at the subject of gifts in family law, what does the court look at to work out ownership?

gifts in family law

The appeal judges however said the trial judge had not erred, and the benefit of the gift was dependent on the intention of the husband’s parents at the time of transfer. In this case, the court said, the property was clearly intended to be gifted to both parties.

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COVID-19: Important update on family courts

The Federal Circuit Court and the Family Court of Australia have issued important new information regarding how the courts are managing the COVID-19 crisis by modifying practices. The aim is to protect the health and safety of the community, judges, legal practitioners and court staff while continuing to administer justice.

COVID-19

Please make sure to visit the Family Court’s dedicated page for all COVID-19 related information here as there is a lot of detail that may be relevant to you. We summarise the key changes below:

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Litigation guardians in family law

A case involving a litigation guardian is snaking its way through the family courts, with a woman wishing to appeal a decision to appoint a litigation guardian to her, but failing in her application for an extension of time in her appeal, because only litigation guardians are able to start applications in a case. So who are litigation guardians exactly?

litigation guardians

A ligation guardian is an adult who acts in court for a child or person with an incapacity that renders them incapable of making decisions in their own best interests. In some states they are referred to as ‘case guardians’. Minors are taken to require a litigation guardian unless a court orders otherwise. Essentially, a litigation guardian steps into the shoes of a party to a proceeding if they lack legal capacity on their own to manage their affairs.

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COVID-19 and family law issues

There’s no question these are trying times as the world deals with the COVID-19 pandemic. Amongst all the challenges and difficulties being faced by the community, the potential effect of the pandemic on family law matters needs to be considered. There may be additional challenges you need to face during this time, so let’s take a look at some of the relevant issues.

COVID-19

The effect on parenting arrangements

Everyone is understandably worried about the pandemic, but practical issues can also arise for parents who are separated or divorced. School closures and/or self-isolation could cause challenges in shared parenting arrangements. While some people are able to work from home, this won’t apply to everyone (for example, frontline healthcare workers).

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Family law deadlines and time limits you should know

You may be deliberating over what to do about your marriage or de facto relationship ending, but while you do, bear in mind that you’ll need to be aware of certain family law deadlines and time limits for taking legal action. Here, we take a look at some key family law topics where there are time limits for taking legal action.

Family law deadlines

Time limits affecting actions in family law matters are set out in the Family Law Act 1975. There are different time limits depending on whether parties were married or if they were in a de facto couple.

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Divorce loans and legal finance: the pros and cons

Going through a divorce is stressful enough, but it’s worse when the potential cost of litigation is causing further anxiety. It’s not unheard of for spouses to remain “trapped” in an unhappy marriage because they fear the costs associated with trying to get out. For those without ready access to cash, divorce loans and legal finance may be an option for moving forward.

Divorce loans

Divorce funding is typically a loan against a potential property settlement, similar to an advance. Funds are borrowed from private lenders to pay for lawyers, other professionals such as valuers or forensic accountants, and even living expenses.

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Relationship-generated disadvantage and family law

A professional woman in the UK who took a step back in her career to take the primary child caring role in her marriage was recently awarded a large financial payment over and above an equal property split which had already taken into account her future needs. The case has attracted interest for raising the topic of compensation for a “relationship-generated disadvantage” in family law.

Relationship-generated disadvantage

The judge in the private ruling said:

“[The woman] viewed herself as the parent who would take primary responsibility for the children,” he said. “The husband’s career took precedence. I accept that it is unusual to find significant relationship-generated disadvantage that may lead to a claim for compensation but I am clear that this is one such case.”

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International relocation permitted due to mother’s happiness, decision to go anyway

An Irish couple who moved to Australia experienced immediate and continual disagreement over whether or not to stay here, with the wife eventually seeking to relocate with the children back “home” to Ireland. The mother was successful in her international relocation matter in the family court after the judge said that moving to Ireland was in the kids’ best interests.

International relocation

In the international relocation case of Ready & Ready (court ordered pseudonyms), involving two children aged 5 and 8, the parents were each happy with the other’s parenting abilities but they clashed on the issue of remaining in Australia.  The mother had originally agreed to move to Australia only for the period of the father’s then-four year work contract and trusted his promises they would return if she was unhappy.  However the father had found “personally fulfilling, financially rewarding” employment here and he now regards Australia as home.

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Who can participate in parenting cases?

Biological mums, ‘intending mums’, biological dads, sperm donor dads, grandmas, former de facto partners?

parenting cases

Alliance Family Law regularly advises parties and potential parties to parenting cases about their rights. The Family Law Act, and how it is interpreted by recent cases including in the High Court, helps the courts work out who can:

  • Participate in court cases;
  • Seek a parenting order in their favour, whether or not they are the biological parent of a child.
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Can you go after your Ex’s property after court deadline has expired?

The simple answer is ‘yes’! Although the usual court deadline to file after divorce is only 12 months, Alliance Family Law recently acted for a wife 16 years after separation and about 8 years after divorce.

court deadline

Alliance was able to successfully negotiate with the opponent that the wife ought to be able to start her court case years after the ordinary deadline. Once that hurdle was met early on in the proceedings, the case was able to continue on in the usual way. This included valuing assets, assessing contributions and a successful negotiation to conclude proceedings.

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Family Law Gender Bias

Tips for fathers wanting equal time with their kids

Family law gender bias

Parents have the same legal rights in family law, no matter what their gender is, because family law in Australia begins with the presumption of equal shared care of children. But you’ll still see the view expressed out there that there is a family law gender bias.

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Expedition: Bringing appeal forward a few months won’t help, says judge

A mother who tried to have her Appeal case brought forward in the family law courts was unsuccessful after the judge said bringing her case forward is unjustified because there was insufficient evidence to show that speeding the matter up by a few months would make any real difference to the mother or the child.

appeal

The mother had brought an application in her appeal matter due to the stress of litigation exacerbating her health issues as well as the fact that her child was having difficulties dealing with the custody reversal that final parenting orders had imposed.

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Deepfake evidence concerns hit family law

He said, she said…or did they really? The rise of deepfakes poses new challenges to the legal industry and the family law industry isn’t immune. We take a look at the new dangers of deepfake evidence forgery.

deepfake evidence

A UK family lawyer has related his direct experience with this emerging issue, after his client’s voice was manipulated using voice forging software, creating a fake audio recording of an apparent threat to an ex-spouse during court custody proceedings. Family lawyer Byron James at international law firm Expatriate Law says his case raises the question—can the legal system continue to take video and audio evidence at face value?

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CEO divorce – issues to consider

CEO divorce

Divorce is challenging for everyone, no matter how high their net worth or what their employment status is. However, there are definitely certain issues which make divorce a little different for high level executives like CEOs. Here are some of the pertinent issues to keep in mind when going through a senior executive or CEO divorce.

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Parental alienation claims—the controversy continues

Which side of the parental alienation debate do you stand on? Do you believe it does happen? Or do you believe parental alienation claims are nothing but a weapon used in court against mothers who have alleged family violence against fathers? Academics—whether in the social sciences or law–are very much divided on the subject. And two new studies point to the reasons for the controversy over the concept—and suggest what must be done about it.

parental alienation

Law professor Naomi Cahn at George Washington University writes in Forbes about a new US study on parental alienation which she argues proves the concept is now dangerously gendered. Cahn says women are losing custody because violent fathers try to deny their abuse through claiming family violence allegations are false and represent parental alienation by the mother.

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Vexatious proceedings orders: When you’re forbidden from going to court

A case heard by appeal judges of the Family Court in Brisbane recently raised the topic of vexatious proceedings orders. The matter of Graft & McCormick [court pseudonyms] involved a mother who had made so many applications and appeals that a judge had eventually issued a vexatious proceedings order, forbidding her from starting legal action in future.

vexatious proceedings

In the long-running matter, two children had been ordered by the court to spend time with their mother on weekends and in school holidays, however this order had been made conditional on the mother first completing a parenting course. Inexplicably, rather than simply attend the course and resume visitation with her kids, the mother “steadfastly maintained the position that she will not complete a parenting course”. It has therefore been many years now since the kids spent time with their mum, last seeing her when they were aged 8 and 9 (they’re now 13 and 14 years old).

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Small Claims Property Pilot begins

In an effort to help separating couples and families divide their assets and property fairly without spending unreasonable amounts of money and time on the legal process, the Government last year announced that it would trial a new process, beginning this January. The so-called Small Claims Property Pilot will run for two years and will then be independently evaluated at the end of that time period.

small claims property pilot
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Does poor English put you at a “special disadvantage” signing a Binding Financial Agreement?

Recently we discussed a case where a wife attempted to have a Binding Financial Agreement set aside on the grounds of “duress” among other things. In that case the wife was unsuccessful. But another recent case involving a Binding Financial Agreement also raises interesting issues around enforceability of the financial contract and the case offers up a good tip to anyone marrying someone whose first language isn’t English, and entering into a Binding Financial Agreement: make sure you get an interpreter.

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De facto rights: legal win in UK

Heterosexual de facto couples in the UK are celebrating a victory, after new laws kicked in on New Years Eve that addressed an inequality in the laws around civil partnerships. This means that de facto couples, whether heterosexual or homosexual, can have the same rights as married couples in relation to property, inheritance and tax entitlements.

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What does “duress” mean in family law?

A recent case in the family courts has brought up issues around the concept of “duress” when it comes to signing an agreement. So let’s take a look at the slightly different, related concepts of “duress”, “undue influence” and “special disadvantage”, all of which the wife raised in a recent case.

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Strategies for divorcing a narcissist

You might refer to your ex as a “narcissist” colloquially, or your ex might actually have a diagnosis of Narcissistic Personality Disorder (NPD). Either way, going through a divorce from someone who displays narcissistic personality tendencies is likely to be at least as difficult as the relationship with them was. And yet it has to be done. So what are some tips for divorcing a narcissist?

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Leaving family violence and need financial help?

For anyone who has experienced domestic or family violence and has left their abuser, starting out with a new life can be practically very difficult. Apart from coming up with all the costs of moving, there may be very little—or nothing—in terms of household items to take. There may be huge concerns over upcoming bills and how to create a new normal for the children.

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Transgender co-parenting issues

The complexity of transgender family law issues has been highlighted in a recent case in a New York family court involving transgender co-parenting, where it was ruled that transgender fathers may adopt children that they consider “theirs”, in order to shore up their parenthood status in circumstances where transgender identity is not consistently recognised across all American states or indeed internationally. 

transgender

As in Australian states, under New York state law, the husband of a woman who gives birth during a marriage is automatically considered to be the child’s dad. But transgender fathers in New York had become concerned that their status as legal parents may not be recognised if they travelled or moved outside of their state. In many US states and many countries, the fathers’ male gender identity would not be legally recognised and then, without an adoption decree, their parenthood status could be in jeopardy. The transgender dads were also concerned about what would happen if their wives died, including risking a custody challenge in a different state. The Judicial Hearing Officer in the matter said: 

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