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Breaking Up
 A Family Law Blog

An introductory mix of practical family law information and comment

WELCOME

Family Law is a minefield of urban myths, bush lawyers and unfounded fears. This Blog series is intended to be an introductory mix of practical family law information and comment, derived from over 25 years experience as a hands on family lawyer, who still loves working in this fascinating field of law!

I will cover issues that most frequently confront people when their relationship breaks down; from points to consider when making arrangements about your children, to what is fair in a property settlement, when can you move with the children, how to get a divorce, legal fees and lots more!

If you have family law problem, or thinking of separating and wondering what your options are, this blog series will provide you with a general picture of what to expect, the questions you need to ask, information that your lawyer or the court will need, or types of solutions that you might consider.

Of course, I will not be giving specific legal advice – if that’s what you need, consult a family lawyer. It’s important to find out your legal rights and responsibilities early during the separation.

So check in every two or three weeks for the latest update. If there are family law topics you’d like to hear about, let me know and I’ll add them to the list.

In the meantime, my next blog will be “Breaking Up – An Introduction To The Family Law System”


FAMILY LAW, FAULT AND CONSEQUENCES

Relationship breakdown hurts. We naturally want to blame someone. Sometimes we want that blame to have legal consequences.

I’m an Australian lawyer. Therefore, I grew up professionally learning that, in Australia, we have had a “no-fault” divorce system since 1975. If you want a divorce, it doesn’t matter whether the relationship broke down because of infidelity, cruelty, violence or simply because partners no longer love each other. Unlike the U.K. and Ireland, all the law requires is that the relationship has broken down irretrievably. The evidence of this is that the parties have been separated for 12 months.  

This doesn’t mean that conduct or behaviour is not relevant to other matters, such as decisions about children and the distribution of property.  

While the family law doesn’t talk about “fault” or that one person is good and the other bad, relevant conduct might have a bearing on outcomes. Sometimes, one party’s conduct will have consequences for a particular aspect and the other party’s conduct will have consequences for something else. Often clients (or their families) find it hard to see the difference between relevant and irrelevant conduct. They often want the other side “punished” because they are, or are not, something; unfaithful, aggressive, lazy, not a good provider, gay, straight, a different race or religion, suffering from an illness or addiction. These things are not, of themselves, relevant.

The Family Law is only interested in the consequences of behaviour for the purposes of the decision being made. So, all because someone is any one of the things above, might not mean that they are a poor parent. However, someone being aggressive around the children might have consequences in terms of how the children regard them and whether there is a risk of physical or psychological harm to the children. This, in turn, will influence the time and conditions on which that person will be able to spend time with the children.

In property settlements, there has been a lot of discussion and change through the cases in relation to the deliberate dissipation of assets during the case; what is regarded as wasteful behaviour and what should be the consequences. There has also been a lot of discussion in the courts about whether family violence should somehow be reflected in a property settlement.  

Sometimes doing nothing or not taking action early can also have consequences that will be legally relevant when the matter comes to being resolved.

So, like so many matters in Family Law, it’s important to get advice from an experienced family lawyer, sooner rather than later.

Balancing Act -
Cultural Norms, Obligations and Family Law    

September, 2016

We have all heard the friends and family of people who’ve been involved in Family Law disputes commentating on what they believe should have been the decision about the children, how unfair the law has been to one parent or how difficult the law has made life for one parent. These comments invariably reflect the cultural views of the person making them in relation to what should be the way children are brought up and what is important for children.

This year, there have been a number of cases that highlight the difficulties of reconciling or balancing different cultural expectations and norms with the legal boundaries. One of these was the sad case of Sally Faulkiner and her attempts to get her children back from Lebanon with the ‘assistance’ of 60 Minutes. Another was the case of Lokare and Baum, reported in the Family Law cases. 

In Australian law, any decision relating to where children live, who they see or other special orders (‘parenting orders’) must ‘regard the best interests of the child as the paramount consideration’ (Family Law Act S 60CA). The values that form the context of the Family Law Act relating to children are reflected in Section 60B of the Family Law Act. That section sets out the objects of the parts of the Family Law Act that relate to children. Those objects in turn talk about the benefit of children having a meaningful relationship with both parents, protection of children, enabling children to reach their full potential, ensuring parents fulfil their responsibilities towards the children etc. (1).

These principles form the foundation of the law relating to children and are binding on Australian courts, Judges and anyone seeking the assistance of the law in Australia. (See my blog post “It’s all about the kids! – myths, legends and the first principle” and “They’re my kids! – what are the best interests of your children?” further down this page where we look at the legal framework for deciding what is in a child’s best interests.)

These objects also reflect general Australian culture as distilled through our parliament.

However, not every culture and tradition within the Australian community automatically accepts or espouses these values or gives them the same priority. In the Sally Faulkiner case, we could see the values being espoused or reflected in the Lebanese religious court system, which apparently give a much greater emphasis to the role of the father and the perceived ‘fault’ of the mother in seeking to remove the children from Lebanon. One can only wonder how Sally Faulkiner’s children are managing having been removed from their primary attachment and being unable to spend time with her. Time will tell.

Last year, in the case of Lokare and Baum (2), the Family Court had to deal with an appeal relating to a perceived conflict between the obligations of an Aboriginal father and his extended family in introducing and welcoming a young child into their particular community with the needs of that young child to feel secure and not to be removed from her primary psychological attachment (her mother) for an extended period of time.

This case was particularly interesting because it also looked at the interplay between a part of Section 60B of the Family Law Act which has, as one of the objects of the law, to ensure that a child of Aboriginal or Torres Strait Islander descent also has the right, the support, opportunity and encouragement to maintain and explore a positive appreciation of that culture. This is again reflected in Section 60CC(3)(h) in setting out how a court decides what is in a child’s best interests.

In deciding cases relating to children with parents from different backgrounds, the family law courts often have a really difficult balancing act in satisfying the cultural norms and expectations of one parent’s community as against the cultural norms and expectations of the other parent’s community or the more general community standards as expressed in Section 60B of the Family Law Act.

Very often, those expectations can be reconciled and practical outcomes achieved, provided both sides are prepared to make compromises and to act with a degree of good will.


1. Section 60B of the Family Law Act - http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s60b.html

2. In the case of Lokare and Baum, the Aboriginal father of the 4½ year old child wanted to fulfil his cultural obligations by taking the child to a smoking ceremony in his country. The child had lived with her non-Aboriginal mother in Sydney since the parties separated when she was 8 months old. At first, a compromise was reached, with the first Judge who heard the case making orders that provided for the child to attend the ceremony but to travel and stay there with her mother. Orders were made that the father would pay for the mother’s travel and accommodation. Unfortunately, the father overheard and took offence at comments made by one of the mother’s lawyers and the family rivalries reignited and escalated so the father’s relatives decided that the mother was no longer welcome at the ceremony. For the child to travel to the smoking ceremony, it was expected to take 2 days’ travel by car and the ceremony itself would have extended over a number of days, so the father was proposing that a 4½ year old child, who had lived with her mother and only had limited contact with him, not stayed overnight with him since separation, would then be removed from her mother for 11 days to travel to and from and attend an important cultural event with him and his family. The case went to the full court which had to balance compliance with the objects set out in Section 60B of the Family Law Act with the paramountcy principle set out in Section 60CA of the Family Law Act. The court decided that this was not in the child’s best interests, because of the time the child would be away from her mother, to whom she had a strong primary attachment. Implicit in this decision is the knowledge that we have from social sciences as to the often long term psychological harm that can be done to a person by removing them from their primary attachment when they are very young. Therefore, it was held not to be in the child’s best interests for this to happen.

Moving Away – Relocation of Children

August 14, 2015

Oh dear! You want to move away and take the children with you BUT… you don’t think the other parent will agree!

You might or might not already have court orders that set out parenting arrangements. Whether you’re leaving an abusive relationship or struggling with the kids and want to move “back home” to where your family lives or you’ve re-partnered and now you are ready to be a new family – you, your kids and your new love, or you just want a fresh start in a new place are some general rules or “do’s and don’ts”.

Do’s and Don’ts

Firstly, whatever you do – don’t just “take off” with the kids (unless your or their safety is really at risk – in which case, contact the police). If you do:

  • the other party is highly likely to be able to get a court order to force government agencies to disclose your whereabouts to their lawyer and an order for you to return the children to the original jurisdiction (place).
  • you also expose yourself to allegations that you have both failed to consider the children’s needs for maintaining a relationship with their other parent , other relatives, school and social networks that are important to them.
  • You are giving everyone, including the court, the first impression that you are placing your wants above the children’s needs. Not a good look in Family Law proceedings!
  • You actually are disrupting the children and their familial and social relationships, putting them through stress that could have long lasting deleterious effects on them.

If you are fleeing and abusive relationship and have good reason to believe that you or the children are in serious danger from your ex partner, then it is a case of, “safety first”. Contact your local police who will be able to put you in contact with Domestic Violence services. Obviously, if there is a danger of violence from your former partner, (and you can prove this, or at least that your fear was genuine) this would outweigh the negatives – but you would still have to persuade the court that your actions were justified.

If you just take off, you will make it much harder to persuade a court that you can be relied upon to foster the children’s relationships with the other parent and other significant people in their lives, or that you really understand the children’s needs and best interests, therefore making it less likely that you will be permitted to permanently move with the children. ( see posts They’re My Kids! and What Are The Best Interests Of Your Children?)

So, what are some do’s?

A really good place to start is to look at the alternatives to relocation:

  • Could your new partner move closer?
  • Could your “ex” also move? great solution if it can be done
  • Would an intervention order and active police assistance work to keep you safe?
  • Could you leave the children with their other parent and maintain regular contact with them yourself – often a practical solution if the children are teenagers.

Canvass the alternatives and have a good reason to rebut each one.

Then work on the positives:

Where will the children live? Give as full a description of their new home as possible; the house itself; the neighbourhood; who will be living there; the employment opportunities for you (and why they’re better than now!); the children’s relationship with your new partner; financial support for the children.

Early on, provide educational options in the new location – your preference of school and why, but make it clear that you’re prepared to consult with the other parent.

How will you ensure the children maintain a strong relationship with the other parent? Consider electronic communications such as Skype, emails, telephone. If you are moving too far away for regular weekend time with the other parent, also be prepared to concede a significant portion of the school holidays for them to spend together.

Consider proposals for the other parent to visit the children in the new location. If you get on well enough, could you truthfully say “He / She is welcome to stay with us every …” ?

How will the children maintain other important relationships – with relatives and significant friends and groups?

If you want to relocate to be with a new partner, what is the relationship between the new partner and the children? How do the children feel about moving to live with him /her. If you can have a trial period of your new partner living or at least staying with you and the children, before you move, that will help you to illustrate a positive relationship (if there isn’t one, it’s going to be very hard to convince a court that you should be allowed to move).

How has your new partner demonstrated a commitment to the relationship not just with you but also with your children? Financial assistance is a very good indicator. What are your and your new partner’s financial prospects? Don’t expect a court to allow you to take the children away from financial security to an uncertain prospect.

These are some of the main issues. However, every family is different and so it’s really important to get good quality legal advice about your particular case as early as possible. I recommend speaking to a Family Lawyer even before you start mediation (Family Dispute Resolution). I’ve seen too many cases where a client has made concessions in mediation that they later regret.

If the other parent opposes your plans to move with the children, expect a difficult, stressful and expensive legal battle. Some registries of the Federal Circuit Court have a separate “fast track” list of cases for disputes about relocation. Check with your lawyer.

Many of my comments in my early post We’re Breaking Up – First Steps – An Introduction to the Family Law System apply to this issue, so read that as well.

THEY’RE MY KIDS! – WHAT ARE THE BEST INTERESTS OF YOUR CHILDREN?

May 8, 2015

In my last post, I addressed some of the “Myths and Legends” that surround parenting and children during separation and divorce. I wrote about the legal expectation that parents, or if they are unable to agree, the Court will make decisions about parenting that are in the best interests of the children.

In this post, we look at the legal framework for deciding what is in a child’s best interests.

Primary considerations

The Family Law Act (the law governing these decisions in most cases – see my post “Breaking Up – They’re my kids!”) sets out the factors a court must take into account in deciding what is in a child’s best interests.

There are two primary considerations, which are:

  1. The importance of maintaining a “meaningful relationship” (yes the law actually uses the term “meaningful relationship”!) with both parents; and
  2. The need to protect a child from abuse, neglect or family violence.

Since 2012, the protection of children from abuse, neglect or family violence has had precedence over the need to maintain a “meaningful relationship” with both parents. Regrettably, for some time, this was not the case.

Secondary considerations

Subject to those two considerations there are then further, secondary, considerations that include : the child’s views and maturity, the nature of the relationship between the child and each parent, the attitude of the parents towards their obligations , and the capacity of each parent to foster the child’s well-being.

Although this checklist initially appears to be very academic, the considerations do in fact encompass the practicalities of a child’s life. There is also an assumption that, if possible, a child should have as little disruption to their life as possible, particularly if they have been thriving. Obviously, if there have been problems that disadvantage a child, any decision should attempt to address those.

How does the court find out?

Of course you think you know what’s best for your child – you’re the parent, right? Problem is, both parents think this. So why don’t you agree? Because you’re biased!!! You only see and hear a part of what’s going on in your children’s lives (sorry, but it’s true!)

Given this almost universal truth, the Family Law Act sets out a process by which the court can obtain independent evidence about the children’s relationship with both parties and about the children’s wishes. This process is called the “Family Report”. Typically a family report is prepared by a psychologist or social worker who sees the parents and the children across one day.

The Family Report writer will speak to each party, will generally speak to the children and will generally speak to the children in the presence of both parties. The interviews are quite intense. An experienced Family Report writer is able to make significant observations and provide a valuable opinion that both the parties and the court can rely on or challenge, as the case may be.

The Family Report writer is also heavily dependent on the court documents prepared on behalf of each party.

Your court documents are the only backgrounding and preparation that the Family Report writer will have. It is therefore essential to make sure that your evidence is properly and professionally prepared and set out before you attend the Family Report interviews.

Other important evidence relating to the children can be obtained from school reports, school attendance schedules, counsellors and even, within limits, from extended family members or friends who have a lot to do with the children. The latter is particularly significant if children have a troubled relationship with one or both of their parents.

All of this evidence then goes towards painting the picture of the children’s lives and helps to answer the question of what is in their best interests.

If you still can’t agree

All this evidence, which is typically gathered over a period of months, will usually enable an experienced Family Lawyer to help you to formulate an appropriate settlement. The vast majority of disputes about children are resolved without the court needing to hear the evidence and make a decision.

An experienced and skilful Family Lawyer will also be able to help you to present or answer the evidence and to put your best case forward, if you do have to go into court. (For more about that, see my previous posts “Going to Court”).

And remember – it’s all about the kids!


IT’S ALL ABOUT THE KIDS! – MYTHS, LEGENDS AND THE FIRST PRINCIPLE

April 9, 2015

Separation and Children

When parents break-up with each other, it is a time of huge upheaval and change for each and every member of that family, both parents and children. The arrangements that might have existed before separation might not be applicable immediately after separation and in turn, the arrangements that apply in the first few weeks after separation may not be suitable for the medium and long term.

Relationships change, adult ideas, fears and perspectives change and children grow older. What might be suitable arrangements for a three and five year old in the first weeks after a traumatic and sudden separation is unlikely to be appropriate three years later, when both children are at school and the adults have, hopefully, calmed down.

Myths and Legends

There are still many “myth conceptions” about what happens to the children when their parent’s separate. Over the last few years a distressing number of men have assumed and vehemently asserted that children are “divided 50/50”. (What with – chainsaws?)

At the other extreme, I still occasionally see cases where one parent has assumed that they can simply take the children and move interstate, without the agreement of or even notifying the other party. (Those parents are in for a very rude shock.)

Many people still have the “myth conception” that children will only spend every second weekend and half of school holidays with one parent and live the rest of the time with the other parent. Once upon a time, this was standard arrangement but it can no longer be assumed. Part of being involved with your children is to also be involved with their schooling and extra curricular activities – just as many parents are before separation.

Another “myth conception” is that it is up to the children themselves to decide which parent they live with and how often they see a parent. Some people believe that there is a law that says that parents can make those decisions once they turn 12. This puts awful psychological pressure on children, who feel they have to choose between their parents.

Others think that a parent’s contact with their children depends on them paying Child support or maintenance – as though children are some sort of product or service to be purchased and sold.

Each of these “myth conceptions” fails to recognize or consider the importance to the children of their relationship with both parents.

First Principal

If you are asking a court to make an order relating to where children live, who they see or other special orders relating them, this is referred to, throughout the Family Law Act as a “parenting order”. If you are able to negotiate agreement without going to court, you also have the option of setting out the terms in a Parenting Agreement – which doesn’t need to be as formal as a court order.

The basic principal in the Australian Family Law system is that any parenting order made by a court must be “in the best interests of the child”. When you are negotiating arrangements for your children, you should also have their best interests as your guiding principle.

Once you have separated from the other parent, you are expected to put the children’s needs ahead of your own. Decisions about children should not be based on what is “fair” to the other party, if that does not accord with what is best for the children. Neither should decisions be based on any concepts of fault or desert for some perceived wrongdoing in the marriage.

Decisions about the children are about the children. They are the central focus.

So how do you or how does a court, decide what’s in the best interests of your children?

That’s the topic for my next post!

Breaking Up – Going to Court
Part 2 – Alternatives

September 29, 2014

In my last post, I talked about the formalities of “going to court” – how you actually get there. As I discussed , going to court is not the dramatic solution to all your problems that is sometimes portrayed in popular culture. In our legal system, going to court involves protracted and formal steps.

This time, I thought I’d take you back a few steps, to see whether you really should go to court, or whether there might be better alternatives.

The Down Side of going to Court

A Judge must decide a case not according to his or her sympathy, or concept of “fairness” or even moral considerations, but on the basis of the law that relates to that case. What’s more, that decision will be based on what facts are proved by the evidence before the court. There are strict rules about what evidence can be considered by the court and what weight it should be given. (For example, you might “know” or it might be “common knowledge” that the other party has been cheating the tax office. How do you know this? Do you simply believe that the other party is earning more money than they disclose? or has one of their mates told you their working for “cash” or do you have a detailed knowledge of their financial affairs, including access to their business and accounting records?)

Unless you can prove the truth of what you’re saying, the Judge can’t take it into account. Obtaining the necessary evidence to prove each and every part of your case that is opposed by the other party can be time consuming and expensive. Can you afford or do you want to spend the money on lawyers? (While I believe spending your money on lawyers to be money well spent, you might have other ideas!)

All the while you are stressed because you have a court case hanging over you and you can’t move on with your life until the case is over. No-one can guarantee what decision the Judge will make (if they could, you wouldn’t be waiting for the decision, would you?) And then, the Judge might make a decision that neither you or the other party wanted!!!

So, what are the alternatives?

Dialogue

Provided you are safe, talking and listening to the other party is often the best place to start.

This does not include lecturing, recriminations, blaming, telling them what they have to do, yelling, sarcasm, threatening or other impolite conduct. It means polite, honest and respectful dialogue; you really listen to the other party and consciously try to understand where they are coming from. Then try to address their concerns, then explain your point of view to them. As you are breaking up, this will probably feel strange and unfamiliar. To avoid going back into the bad old habits, I often recommend to clients that they meet over coffee at a neutral place.

Having a polite and reasonable conversation with the other party can be incredibly difficult. It takes guts and good will, but it can be done and it can be very rewarding. You might be afraid or embarrassed because of what has been said during arguments, you may think it won’t work so why try? These feelings are often just a habit you’ve got into. It is natural to want to tell them just how hurt you feel and where you think they went wrong! However, having the polite and reasonable discussion about future actions, might be really worthwhile! I often find that clients come back from these discussions with new insights and either agreement or some positive proposals that can be negotiated further, to reach a settlement. I’ve prepared the formal paperwork for many cases where people have worked through very painful and difficult decisions with their former partner. They’ve saved themselves huge legal fees and come up with arrangements that are really tailored to the best interests of the whole family.

If you don’t feel comfortable talking to the other party face to face, consider a telephone call. Try to avoid text messages and emails – too often they just become a way of parties trying to score points against each other.

Mediation

If you can’t talk reasonably with each other, another option is mediation, using a neutral third party to assist with negotiations. In some cultures, people prefer to use another family member or respected member of the community as a mediator. I think it is best to use the services of a trained mediator, to ensure the process is fair to both parties and that the mediator is not running his or her own agenda. It will also give you the best chance of reaching a workable agreement. In the Family Law system, if you disagree about arrangements for your children. you generally have to attempt to resolve your differences via mediation (called “Family Dispute Resolution”) before you can go to court.

In financial or property matters, you may want to have your lawyer or accountant either with you or available to give advice by telephone, as part of the mediation.

Family or Relationship Counselling

If you are unable to reach agreement, typically about parenting arrangements, because of poor communication or ongoing problems with one or more family members, family counselling may be useful. This addresses the ongoing dynamics that may be causing the problems and looks at how family members can change their behaviours in order to reduce conflict.

Round Table (“Without Prejudice”) Discussions / Conferences

This is often used if parties are contemplating going to court, or where court proceedings have been issued. Therefore, such conferences are best conducted with the parties and their lawyers all present. It might be useful to have other experts involved with the case (for example accountants, valuers or counsellors) available at short notice. Usually these conferences involve both sides disclosing their evidence and negotiating to see whether there is a compromise position that they can reach. They are usually “without prejudice” which means that parties can make suggestions and explore options in the conference which, if they still can’t reach agreement, cannot then be disclosed in Court.

Negotiations throughout Litigation

In most cases, even where court proceedings have been issued, there will be on-going negotiations to see whether the case can be settled. The most notorious / famous type of such negotiations (at least for lawyers) is what’s called “at the door of the court”. This is when, in Family Law, all of the evidence is available to both parties and they are literally ready to go into court to have their case heard. It’s amazing to me, after over 25 years experience as a lawyer, how people will decide to settle at the last minute, rather than have to go into the witness box and be cross examined! Often when the same settlement could have been reached months and thousands of dollars before!

Making it stick

Once you’ve reached agreement, it is still important to have that agreement set out in writing and in a legally binding form. In Family Law, we commonly do this via a mechanism called “consent orders”. I explain this as the papers going to court but you don’t. The lawyers draft up the agreement in the format of a court order, (called “minutes of consent”). Both parties sign the document, then it is presented to the court, either “in chambers” with written reasons to the Judge as to why the orders should be made or in open court where one or both of the lawyers will explain the orders to the Judge. Provided the Judge doesn’t require any significant changes, the MInutes then become Orders of the court and are legally binding on the parties.

Of course every family law case is different, so you should discuss your options with your lawyer.

These last two posts have been about processes – the “how” you deal with the decisions that can arise when your relationship breaks up. Next time, I’ll talk a bit about the law itself – the “what”.


Breaking up – Going to Court?
Part 1

August 27, 2014

I find that clients and their supporters often have “myth-conceptions” about “going to Court”. How often have you heard words “I’ll take you to court” said as a threat? Perhaps your lawyer has discussed “issuing court proceedings” with you.

People often have the idea, gleaned no doubt from film and television, that they and their lawyer just turn up at court. The judge is ready to hear their case immediately. They and the other party go into the witness box and get cross examined by a lawyer pacing the floor in front of them. Then the judge makes a decision and the most deserving person “wins”. It’s all very fast and dramatic! This is not how it works! Courts are all about “due process” – making sure that any decision is made in the right way, after balancing the competing claims.

What does it mean, to “go to court” in a Family Law case?

It means that one of the parties in the case believes that there needs to be a legally binding and enforceable decision or directive about one or more of the issues in dispute. To achieve this, they must take formal steps to ask a court to make that decision. In Family Law, this is done by one party issuing an application – a formal document that sets out, as precisely as possible, the orders that party wants the court to make. The application has to be in writing and is processed by the court’s administrative staff, (“filed”). The court staff will note the first hearing date on the front of the application. There is a court fee that has to be paid at the time the application is filed, unless you qualify for an exemption due to financial hardship.

In most cases, the application has to be formally given or sent to the other party (“served”) before the first hearing date. The other party must be given enough time to answer (“respond” to) the application, possibly with their own set of orders that they want the court to make. In Victoria, it tales between four to eight weeks from the date of filing the application to the first return date.

Urgent matters

Occasionally the court is persuaded that an order has to be made with extreme urgency (for example if the other party is believed to be on the verge of removing children from the country, or the safety of children is at imminent risk or someone is on the verge of disposing of property in such a way that the other party would suffer irreparable loss). Sometimes, if the matter is urgent, but not so urgent that the other party shouldn’t have some opportunity to put their case to the court, they may only be given a few days before the first hearing. This is called “abridging” time.

Where a party is asking for either urgent orders or for short term or “interim” orders to be made, they will also have to file an affidavit (a written and sworn statement of facts) with the court, setting out the facts that they belive show the reasons for the orders they are seeking to be made.

And then…

There will then be one or more court hearings, and / or conferences and attempts at mediation, many letters and numerous court documents prepared (including affidavits for all the evidence) before the case will reach the final hearing, (also called “the trial”) before a Judge. It usually takes somewhere between six months and a couple of years (depending on the type of case) to get to this point. Over 90% of Family Law cases in Australia settle before reaching this stage. If your case does go to trial, then each party and their witnesses give evidence and are cross-examined – but never by anyone pacing up and down in front of them! After hearing all the evidence and after each side has presented their arguments to the Judge, he or she will make a decision.

For more information, see the Family Law Courts “About going to court” 

http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/About+Going+to+Court

Wondering whether you should go to court?

Well that’s a whole new topic!

We’re Breaking Up – First Steps
An Introduction to the Family Law System

August 6, 2014

Breaking up a relationship is usually stressful – even if you’re the one who’s initiating it. It’s an emotional and often confusing time. The path you were on is no longer there. You have to make fresh decisions about almost every aspect of your life; where will you live, what about the kids, who gets the home, cars, mortgage, credit cards, whatever. You might also be frightened of your former partner – what will they do? Perhaps you or they have already applied for an Intervention Order. What do you do, who do you talk to?

Safety first!

If you are concerned that your former partner may harm you, your children, pets, themselves or damage your property or possessions, contact the police in your area and take whatever practical steps you need to ensure the safety of those at risk.

Talk to a Family Lawyer!

Even if you don’t want to go to court or it’s an amicable separation, the breakdown of a relationship always creates new rights and obligations. It’s therefore good insurance (and often reassuring) to get legal advice early and from a qualified and experienced family lawyer. By doing this, you can often save yourself and your family unnecessary conflict and financial loss down the track.

Often, in an amicable separation, my advice will include an outline of where you stand legally but to then talk to the other side to reach agreement. Once you have some idea of your legal rights and obligations, you might decide that you’d like to try mediation or dispute resolution. You can then return to lawyers to have the agreement made legally binding. Easy!

Traps!

  • Beware the “Bush Lawyers” – everyone has had or knows someone who has had a family law case – usually horrific and gory and really, really expensive and the lawyer either didn’t do a good job or someone “lost everything” or ….Then your friend or relative, with no legal training, or (what can be worse) a small amount of legal training in a totally different field, tells you their version of what the law is – and you get yourself into real trouble that then really does cost you!
  • Beware of the partner who tries to stop you from getting legal advice; in my [many] years of experience, this usually means they have something to hide or are trying to control you, beyond the relationship.

Work out what it is you’re most worried about (And then think about the other things too!) There are so many issues that can arise when you separate:

  • Parenting issues: The children – who should they live with, how much time should they spend with each parent, should there be restrictions on the other parent when they are with the children?
  • Relocation – Does one parent want to move away from the town or city you’ve been living in and can they just do it? How do you stop them (get a fast court order!).
  • Family Finances – who pays what bills? Who pays the mortgage? who pays maintenance for the children (Child Support)? does someone have to pay maintenance for the other partner (sometimes)?
  • Property Settlement – can one person keep the house? How much do they have to pay the other person? What about the farm that’s been in the family for 6 generations? What about superannuation?

Talk to your ex!

(Preferably after talking to a lawyer) Very often, when people are breaking up, they fight or argue or give each other “the silent treatment”. Once you’ve decided to make the break, try talking to each other – not about what has gone wrong and whose fault it is, but about the practical ways of managing the children, finances, the home, relocation, now that you’re apart. Talk on neutral territory such as a coffee shop over coffee (it’s harder to fight in public).

Traps!

  • Beware of text messaging and emails – it is so easy to inflame the situation rather than resolve problems. If you must use texting and emails, keep it very short, to the point and imagine you are writing to a judge or employer to keep it very, very polite! Re-read what you’ve written before you hit “send” and ask how you would like to receive what you read. Scoring cheap points doesn’t solve problems!

What if we can’t agree?

Sometimes you just have to go to court to have a judge or magistrate decide between what you want and what the other party wants. I’ll talk about that in my next installment.


USEFUL LINKS

Brochure – Marriage Families and Separation

Family Dispute Resolution- find someone in your area