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Hey Family Law

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23.01.2022 But if we agree why can’t we have Consent Orders? Well, unfortunately it’s not that simple. Whilst Consent Orders are the cheaper and simpler option for resolving a property matter and a more binding outcome for a parenting matter, the court must approve the property division or parenting arrangements. The court, usually a Registrar, will process the application for consent orders having regard to the circumstances of the matter as set out in the application and, in light of...:- for a property matter:- The length of the marriage or de facto relationship; The parties ages; The contributions and respective future needs of the parties, as set out in the application; The party’s income; and The proposed division with regard to the overall percentage split and the composition of the settlement for each party and for a parenting matter:- The age of the children; The number of children and the spread of their ages; and The proposed parenting arrangements including the length of time away from each parent. the court must then determine whether the proposed Orders are, in a property case, just and equitable (fair) and in a parenting case in the children’s best interests. In the event the court do not consider the division of assets fair or the parenting arrangements in the children’s best interests then they can either dismiss/reject the application or requisition it - requesting further evidence from the parties by way of affidavit. This is a concept some clients struggle with - the reality that the court may reject the outcome they have agreed upon. It is therefore extremely important that a family law specialist reviews the settlement before consent orders are entered.

18.01.2022 Bad Bargains If a family law litigant is not happy with their negotiated settlement, there are limited options for them to reopen or reagitate for a second bite at the cherry. Presuming both parties are legally represented and there was not a disclosure issue where information was withheld or assets hidden, then a final settlement is usually just that final.... The competence of the legal representatives can have some recourse for an unhappy settlor however only if there has been some negligence on the part of the lawyer. It is therefore prudent to ensure your family lawyer is well experienced, not a dabbler and if necessary to seek a second and/or even a third opinion before or during the matter such that you are fully informed and advised prior to the final settlement document being signed. Courts will rarely entertain setting aside a bad bargain deal, especially where the party on the receiving end of the bad deal was properly advised by their Solicitor and where a Solicitor advises against settling and the party settles anyway, their ability to depart from the settlement terms are largely non-existent.

14.01.2022 When’s the right age to travel: There is no set age a parent is able to travel internationally with their child/ren and indeed the Court when considering an Application by one parent to travel will have regard to a variety of factors including:- 1. The age of the child/ren;... 2. Their primary attachment/s; 3. Whether they travelled during the relationship/marriage; 4. The time each party is spending with the child/ren and the length of the intended holiday relative to the periods of time spent away from the non-travelling parent; 5. The location of the proposed trip and whether the countries to be visited are parties to the Hague Convention relating the international abduction of children and/or any travel warnings in place; and 6. The link the travelling parent has to the country to be visited and whether they present a flight risk, in terms of remaining with the children in that country and not returning special attention is also paid by the Court to the ties the travelling parent has to Australia especially where travel is proposed to a parent’s home country or to visit family abroad. Each case is determined on its facts and there is no rule book on when an overseas travel application will be successful and when it will fail. What is important is that the Court are carefully stepped through all of the evidence to ensure an informed decision is being made and one that is in the child’s best interests. We have successfully represented both travelling parents and also non-travelling parents in resisting applications for travel brought by the other parent. Contact us to further discuss and bear in mind the delays in having a Court hear such application, as the Courts do not consider pre-paid travel a reason to jump the queue in front of all the other parenting cases awaiting Court, so it’s vital the court application is filed well before any intended travel and/or flexible travel arrangements booked at first instance.

11.01.2022 False Promises: Unfortunately for some of our clients in recent months, they have been left to wait for lengthy Court delays to have their parenting matters heard. This will, on occasion, mean that the other parent is able to leverage off the delay and "punish" the other party, either as a result of the commencement of the Court proceeding or for some other, often unknown, reason. The stars were aligned for about a two week period late last year, where we found ourselves havi...ng to challenge our clients about the need to wait for an offer or for the other parent to calm down where a pattern of behaviour had already occurred, something we see time and time again, where one parent is controlling or seeking to dictate the parenting arrangements. In all of the 5 cases we saw over that 14-day period, each client needed to commence Court proceedings to seek to have parenting arrangements put in place allowing them to spend regular time with their child/ren. Whilst occasionally these promises do eventuate, in most circumstances they do not and Court proceedings become a necessary evil. See more

09.01.2022 School Fees: These are largely covered in child support related matters. Occasionally a school fee liability exists at separation, in which case that is something factored into the property settlement between the parents, however beyond existing debts or those that accumulate with the school prior to settlement or finalisation of the property settlement, school fees fall into a rather grey-ish area. There is no law, despite some of our client’s recent protestations that req...uires one parent to contribute to private school fees and associated costs and/or that parents must share in those costs. The school fees are simply paid by the person able and/or willing to pay them and, if there is a dispute about who pays, then often this results in the children having to attend either a more affordable school or a non-private one. Whilst school fee costs can be used to either increase or decrease the periodic amount a parent pays/receives in child support through the Child Support Agency’s change of assessment in special circumstances process, it is always wise to negotiate, agree and document who is to pay what regarding school fees. This takes the guess work out of the equation, provides certainty for the parents and the children and it then becomes one less thing to argue or worry about later.