How important are time frames in family law?

saraMany people probably do not know that when parties separate who have been in a de facto relationship, they only have 2 years from the date of separation to lodge an application with the Court to claim for their entitlements.

If you do not file any documents with the Court prior to the expiration of the 2 year time frame, you have to seek the Court’s permission to proceed which can be a costly and time consuming process.

The Court had to consider this in a most recent Family Court appeal decision of McCoy and Chancellor [2014] FamCAFC 62.

The background to this case was the parties were in a relationship for 23 years and separated in December 2010. There were assets to the value of approximately $2 million and the parties attempted mediation in November 2012.

The parties reached an agreement at mediation however Ms McCoy did not sign the finalised Consent Orders which needed to be filed with the Court. Subsequently, Ms Chancellor filed an application with the Court to seek a division of the assets in March 2013, which was approximately 3 months after the 2 year time limit had expired.

At first instance, the Federal Circuit Court Judge gave Ms Chancellor permission to file her documents. Ms McCoy appealed this decision arguing that the Court must not allow a party to file out of time unless it is just and equitable to do so.

The Appeal Judges agreed with the Federal Circuit Court Judge as one of the factors the Court needed to determine when making decisions about giving a person permission to file documents out of time is whether the party would be caused undue hardship if leave was not given to file out of time.

The Appeal Judges stated that in this case “all matters … relevant to the just and equitable requirements were present such that to deny the application for an extension of time would inevitably cause hardship to the applicant.”

Whilst successful in this instance, you must be aware that there are occasions when the Court may not make a determination that any hardship to a party exists and therefore, not grant permission to alter the property interests.

If you have any concerns about the time frames in which you have to finalise a property settlement between you and your former de facto partner, you should contact Everingham Solomons because Helping You is Our Business.

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Is What You do After Separation Relevant?

saraWhen parties to a relationship have separated, both parties can continue to make financial and other contributions towards the assets and members of the family. This could involve running a business or being a stay at home parent to care for a child.

This issue was recently raised in the Full Court of the Family Court of Australia appeal of Marsh and Marsh [2014] FamCAFC 24.  The parties were married in 1979 and separated in 2000.  The parties were divorced in 2008 and in June 2010, the wife commenced proceedings before the Court for the purposes of dividing the parties’ assets.

There was a period of 10 years between the time the parties separated and the application before the Court. As you could imagine, contributions were made by each of the parties and these had to be considered.

In the first instance, the Court stated that due to the large earning capacity of the husband and his financial contributions since separation, he was entitled to a greater share of the assets than the wife.

The wife appealed this decision on the basis that her contributions of homemaker and parent after separation were not taken into consideration.  Since 2000, the wife had continued her role as mother (the youngest child being 10 at separation) and continued to maintain the home.

The Full Court agreed with the wife that despite the husband’s overwhelming financial contribution, the Court at first instance failed to give any weight to the wife’s contributions as a mother and homemaker.  By the wife continuing that role, the husband was able to make the larger financial contributions.

When adjusting property adjustments at the end of the relationship, the Court must take into account the contributions by both parties at the commencement of the relationship, during the relationship and after the relationship.

If you have any issues in relation to contributions that have been made throughout a relationship, including after separation, you should contact Everingham Solomons because Helping You is Our Business.

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Can Bullying Lead to a Change of Schools?

saraSchool bullying has become an issue for many parents, particularly, with new technology and accessibility to social media websites.  As bullying becomes a concern for parents, often the decision has to be made as to whether the child should continue in their current school or change.

What happens though if separated parents cannot decide whether the child is to leave one school to attend another.  This was argued in the recent Federal Circuit Court of Australia decision of Bardot and Benjamin (2013) FCCA 1024.  The facts of this  case were the parties were married in 1998 and separated in 2006.  There were final children’s orders made in 2008 which included, amongst other things, equal shared parental responsibility for the long term decisions of the two children.

It was submitted by the mother that the youngest child was attending school and was a victim of bullying.

The issue in dispute for the Court was whether the child was still experiencing bullying and whether or not such bullying was impacting on her physical and/or psychological welfare.  If so, would moving the child to the new school assist her?

The primary consideration is, and always will be, the best interests of the child.  The mother argued that the child should attend at the new school as she believed that their “no bullying” policy alleviated the mother’s concerns that the child would be protected.  The father claimed that the bullying had been exaggerated and had been resolved at the existing school.  The father submitted that it was in the child’s best interests to remain at her current school and continue to work on her vulnerabilities with her school counsellor.

In evidence, it was explained to the Court that the child described the current playground as a war zone involving shifting alliances that added to her feelings of anxiety and uncertainty.

Whilst taking into account the principles in the Family Law Act, Her Honour came to the conclusion that the weight of evidence shown was that it was in the child’s best interests to be given the opportunity to change schools due to the bullying.

If you have any issues in relation to your child’s best interests and you cannot make a decision with the other parent, you should contact Everingham Solomons because Helping You is Our Business.

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Family Law Expertise continues at Everingham Solomons

saraThe Family Law team at Everingham Solomons continues to expand it’s knowledge base after I successfully graduated with a Master of Applied Law (Family Law) through the College of Law on Wednesday, 16 October 2013.

I commenced studying my Masters in late 2011 when I started working at Everingham Solomons. This involved combining full time study with full time work to successfully complete the course in a two year period.

Undertaking a Masters through the College of Law has assisted me considerably in being able to provide my client’s with up to date advice. The knowledge and practical training that I received was invaluable.

At the graduation for all of the College of Law Master of Applied Law programs, the graduands were treated to a formal address by Professor Gillian Triggs who is the current President of the Australia Human Rights Commission.

I believe that it is important for Lawyers to enhance their skills in their areas of expertise. The College  of Law offers the Master of Applied Law courses in Commercial Litigation, In-House Practice, Wills and Estates and Family Law. There were six graduands in Family Law who attended upon the ceremony.

Throughout the course I undertook advanced children and property subjects, advocacy and general conduct of matters.

I am delighted to have finished my Master’s. Perhaps in 2014 I will look at further studies but in the meantime, I look forward to using my increased knowledge to work with my client’s to achieve the best possible outcome for them.

If you have any issues in relation to any Family Law matter, you should seek legal advice from Everingham Solomons as we have the experience and expertise to assist you because Helping You is Our Business.

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What is Reasonably Practicable?

saraWhen determining the live with and spend time with arrangements for children, one area that the Courts must look at is whether it is “reasonably practicable” for Orders to be made.

Reasonable practicality is outlined in Section 65DAA(5) of the Family Law Act and takes into account issues such as how far apart the parents live from each other, whether the parents can afford to undertake what is being Ordered, the capacity for the parents to communicate, the impact Orders may have on the children and any other matter the Court deems necessary.

This issue was raised in the Family Court appeal decision of Ember & Assadi [2013] FamCAFC 107. Orders were originally made in this case for the children (then aged 3 and 2 years) to live with the mother but to return from Melbourne to Sydney so that the father could spend time with them.

The mother did not agree with the Orders for her and the children to move back to Sydney and she argued on appeal that the Federal Magistrate failed to consider the “reasonable practicability” of her returning to live in Sydney and that there was insufficient evidence to determine what her financial situation would be.

The evidence before the court on this occasion concerning the financial situation of the mother was that she was living in a Department of Housing house in Melbourne and was working only three hours per week.

Further, whilst there were comments that the father would pay to the mother $110 per week, there was no order to that effect nor was there any consideration as to whether the father could actually afford to give the mother that amount of money as he was only working 2 days per week and living with his parents. Again, the mother’s financial position was not fully determined.

The Full Court concluded that there was merit in the appeal because they did not find that there was enough evidence for the Federal Magistrate to determine whether it was reasonably practicable in the circumstances for the mother to be required to move back to Sydney and financially what that impact would be.

If you have any issues in relation to the reasonable practicality of the spending time with your children, you should seek legal advice from Everingham Solomons as we have the experience and expertise to assist you because Helping You is Our Business.

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Who Should Bear the Costs of Travel

saraIn situations where one of the parties lives a considerable distance from where the children reside, the question may arise as to which parent or carer is to pay the costs of travel to spend time with the children?

This question was raised in the appeal case of Lorreck & Watts [2013] FamCAFC. In June 2012, the Full Court of the Family Court allowed the children to move from Canberra to Cairns with the mother and the father was to spend seven block periods within every two years with the children. The father had remained living in Canberra.

The mother, who was reliant on Child Support and Government Benefits at the time, argued that she should only pay for one return flight per two years until she was earning $1,300 per week. The father’s position was that the mother should pay 2 of every 3 trips considering that she had moved away.

The court made orders that from July 2013, the mother and the father should bear the costs of the travel equally. The mother appealed this decision.

Her Honour, on appeal, found that the court at first instance did not provide sufficient reasons for why he made the orders for the joint payment of the travel expenses.

Her Honour looked at whether the mother would be willing and able to actually earn $1,300 per week.  Whilst not demeaning the mother or her ability, the court found on appeal that it would be more prudent for there to be a start date on the mother’s payment of the costs of travel as it may have potentially been disadvantageous to the father in the future if the mother never earned that allocated amount of money per week.

For the above and other reasons, Her Honour made orders that from 1 January 2014, being the start of the two year period for the father to spend time with the children, the mother shall pay for three of the seven return trips. Prior to that, the mother only had to pay for one trip due to her financial circumstances.

We have the experience and expertise to assist you with all your Family Law needs because Helping You is Our Business.

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When Final Means Final

saraSometimes when parties separate and they have children, one or both of the parents may be required to spend supervised time with their children. This may be for a variety of reasons, primarily it is to ensure that children are not exposed to any form of risk.

When a Court has made final orders, it is almost impossible to change them unless there has been a significant change in circumstances as outlined in the leading case of Rice and Asplund (1979) FLC 90-725.

The question may be asked, what happens when a Court has made final orders for one of the parents to only spend supervised time with the children? Can the issues leading to the supervision be re-addressed and changed at a later time?

This issue was the subject of debate in the matter of Slater & Light [2013] FamCAFC 4. This was an appeal from the Federal Magistrates Court concerning a decision whereby a father was to spend supervised time with his children. It was determined at that time that the father posed an unacceptable risk of emotional harm to the children.

The problem for the father was that the orders provided that he could only have supervised visits with the children. There were no other orders for the father, whether he was rehabilitated or not.  He was not to spend unsupervised time with the children.

On appeal, the Family Court had to determine whether the Federal Magistrate, had the intention that the orders were to be final with no prospects of changing them.

Whilst the Court found that the order for supervised time was justified in the circumstances, they did not agree that an indefinite supervision order was the correct outcome.  The reason is that it did not allow the father the opportunity to apply to vary the orders due to the matters outlined in Rice and Asplund. 

Further, the Court did concede that there had been a time delay between the initial hearing in 2011 and the time of the appeal. In that regard, they ordered a re-hearing of the matter with updated expert evidence about the time that the father should spend with the children.

If you need advice in relation to parenting orders, you should contact Everingham Solomons because we have the experience and expertise to assist you because Helping You is Our Business.

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Love in an overseas jurisdiction

saraAs overseas travel becomes more accessible, so too does the possibility of love blossoming with someone who is a resident of a foreign country.  As a result an Australian citizen may marry or form a serious relationship and the parties may choose to continue to reside outside Australia.  If the parties have children, the question may arise “What happens if the relationship ends and one of the parties wants to return to Australia with the parties’ children?”

In a recent case that has been overwhelmingly publicised which involves four Italian children who had been detained in Australia is one such example. The facts of this case were the mother travelled to Italy when she was just 16 years of age on a study trip. At 17 the mother married an Italian man and they had four daughters to their marriage.

Their marriage ended in 2007. Orders in relation to the living arrangements for the children were made in the Italian Courts allowing for the children to live with the mother and to spend time with the father. The mother subsequently was living by herself with their children in a country with no members of her maternal family.

The mother travelled to Australia with the children and never returned to Italy. The father subsequently had to file an Application with the Court for the children to be returned. The mother’s evidence was that the father gave her permission to move back to Australia with the children to be with her family.  The father maintained he did not ever agree to such suggestion.

After numerous applications by the mother to Australian Court to have the children remain living in Australia, the final judgment was delivered on 3 October 2012 by a Judge of the Family Court. Whilst His Honour was aware of the girls request to stay in Australia, the International obligations of the Hague Convention overruled that request.

This was not a decision that the children should live with their father, but a decision that the children should be returned to Italy so that the living arrangements of the children could be determined by the Italian Court system.

Australia is a signatory to the Hague Convention, which is an agreement with many countries outlining rules concerning what is required to be considered if a child is abducted from certain countries. Italy also is a signatory to the Hague Convention. Both countries need to abide by that Convention when a child has been wrongfully removed or abducted from their home country.

At Everingham Solomons we have the experience and expertise to assist you with all of your Family Law needs Helping You is Our Business.

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When Can You Change Children’s Orders?

saraThe Family Court and the Federal Magistrates Court will be asked at times to make orders in relation to where a child should live and how much time they are to spend with the other parent. When these Courts make orders, the orders are based on the current circumstances that surround a child’s life. However, life is full of changes  and sometimes, the orders that were previously made are not practical anymore.

What then will these Courts do if you want to change such orders?

The leading case on such matters is Rice v Asplund (1979) FCL 90-725 whereby Chief Justice Evatt said the Court “… should not lightly entertain an application … To do so would be to invite endless litigation for change is an ever present factor in human affairs … there must be evidence of a significant change in circumstances.”

Recently, in the case of Fante & Joyce (no.1) [2012] FMCAfam 741, Federal Magistrate Coker had to determine whether he should allow parents to change the orders that were made almost 4 years ago, taking into account what Chief Justice Evatt said in the case of Rice v Asplund.

The facts in Fante v Joyce were the orders were made in 2008.  In these orders the mother was given sole parental responsibility for the child. The father’s new application sought for there to be joint parental responsibility as he felt he was excluded from important decision making.  In 2008 there was evidence that there was extreme conflict and mistrust between the mother, her family and the father. This mistrust did not allow the Federal Magistrate to come to the view that sharing the parental responsibility between the parents would be in the child’s best interests.

Federal Magistrate Croker found that nothing had changed in the father’s circumstances to alter this view and stated “The parents still communicate appallingly with each other.”  In that regard, the Federal Magistrate was not convinced that the father had met the rule in Rice v Asplund, that is there was not a significant change in circumstances, and did not grant leave for him to proceed with his application to change the orders.

If you have current children’s orders and you believe that there may have been a significant change in your circumstances in that the orders no longer work, you should seek legal advice from Everingham Solomons because we have the experience and expertise to assist you because Helping You is Our Business.

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Relocating – The Children’s Best Interests

saraRelocation is a term used in family law proceedings when one parent wants to change where they live and take the children with them. For the Court to determine whether the children can move with that parent to a location sometimes hundreds of kilometers away from the other parent, the Court needs to consider many issues. One of the primary considerations that they take into account is whether the children can still continue to have a meaningful relationship with the other parent.

The recent decision of Lorreck & Watts [2012] FamCAFC 75 is one such case whereby the mother wanted to move from Canberra to Cairns and the Court had to determine whether this would be in the best interests of the children.

There were two children from the marriage aged 10 years and 5 years. The children lived with the mother and spent time with their father. Both the mother and father were born and raised in Queensland and their family and friends were still living there. The father was employed by the Australian Defence Force and throughout the course of the relationship the family moved many times to different locations across Australia.

When the marriage ended, the mother sought to move back to Cairns with the children to have the support of her family and friends. The father sought that the children live with him in Canberra should the mother move away.

At the first hearing of the matter, the Federal Magistrate confirmed that the mother’s case for moving was strong and there were many advantages for the children should they move. The only reason why the Federal Magistrate did not make Orders allowing the children to move was due to concerns that the youngest child would not be able to continue to have a meaningful relationship with the father.

The mother did not agree with this decision and sought a further hearing of the matter regarding evidence that was presented to the Court stating that the child would cope.  The Court subsequently read the evidence of the psychologists and psychiatrists that was presented in the first case. After considering all of the evidence of the mother and the father, the Court determined that the Federal Magistrate had not taken this into account and subsequently permitted the children to move to Cairns.

If you wish to relocate or the other parent seeks to relocate you should seek legal advice from Everingham Solomons because we have the experience and expertise to assist you because Helping You is Our Business.

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