Time Limits for a property settlement - Am I out of Time?

Breakups can be emotional, overwhelming and stressful, often far from your mind is the idea that there is a deadline for a property settlement.

The Family Law Act sets limitation periods in bringing an application to the Court for a property settlement for both married and de facto couples. It is important to be aware of these time limits, otherwise you could run out of time to make a claim through the court.

Time limits for married couples

For married couples, the time limit for filling an application for a property settlement is one year after a divorce order takes effect. Whilst this time may appear to be short, keep in mind that because you must be separated for a period of 12 months before being eligible to apply for a divorce order. Therefore you effectively have at least 2 years before time runs out and the clock doesn’t start ticking until you are divorced.

Therefore, it is essential to make sure you have your property settlement effectively legally sorted when you are divorced. However, I would advise you to seek legal advice regarding property matters at least as soon as you separate, you can then make informed decision as to when is the best time to pursue a property settlement and make sure the assets are protected in the meantime

Time limits for de facto couples

Alternatively, those in a de facto relationship have a time limit of two years after separation (there is no divorce for de facto couples).

Although the date can be clear cut in some relationships, often it is not. For example, if you separated but continued to live under the one roof or had periods of reconciliation, there is scope for disagreement over when the date of separation actually occurred. (In 10 Things to Know about Divorce I explain further what separation looks like). Again, seeking legal advice early on in the process is preferable, especially if there is some doubt about when the clock starts ticking.

Oops, I missed the deadlines

Ran out of time? Don’t panic just yet.

Under section 44(6) of the Family Law Act, the Court has the power to grant parties leave to file an application to the Court for a property settlement out of time.

To allow this, the Court must be satisfied that hardship would be caused to the party or a child of the relationship if leave is not granted. Hardship is not defined within the Family Law Act, and so the Court considers what constitutes hardship on a case by case basis.

In bringing an application out of time you therefore need to give a reason for your delay in brining proceedings and further demonstrate how hardship is caused or else leave may not be granted. Also keep in mind that the mere loss of the opportunity to bring proceedings is not in of itself hardship and so this reason alone may not be sufficient enough to be granted leave.

These set time limits demonstrate once again why it is so important to seek timely legal advice and discuss your circumstances with a family lawyer. Here at OFRM, there are 5 family lawyers, including 2 family law specialists, available to meet with you to discuss your circumstances and best way forward from here. Call 03 5445 1000 to speak to someone.

Can I join in? Applications for parenting orders by a third-party

It is not uncommon to receive an enquiry from someone whom is not a biological parent to a child (e.g. grandparents, step-parents and other relatives) about their options to spend time with the children of others, such as their grandchildren.

The Family Law Act provides that “any person concerned about the children’s care, welfare and development” can seek Orders in relation to children.

Whilst this seems like it could include a broad range of people, before allowing such parties to seek such Orders, the Family Court places the onus on an Applicant to provide evidence which justifies their need to spend time with the children and evidence that their Application would be in the children’s best interests .

The Full Court of the Family Court in the matter of Mankiewicz and Anor & Swallow and Anor said

Whether or not permission should be given [to a third party to joint proceedings] is a question of fact… to be determined on the basis that an applicant can demonstrate he or she is concerned with the care, welfare or development of the child. It will be a matter for the judge to decide in the individual case.

Case law in the area suggests that the Court will consider evidence such as the role the Applicant had in the lives of the children in the past, the nature of their relationship and their influence on the wellbeing of the child. As always, the Court’s paramount consideration is the best interests of the children.

The Full Court in Mankiewicz and Anor & Swallow and Anor considered an appeal made by maternal great grandparents who had made numerous Applications over the years to obtain parenting orders to allow them to spend time with their great grandchildren. In 2009, at first instance, their Application was unsuccessful with the Court finding that their relationship with their great grandchildren was not of such a nature to warrant their involvement in the proceedings. They did not meet the threshold required to be involved in the parenting arrangements for the children. They were unsuccessful in subsequent appeals, with the Full Court not being persuaded that such an Application was in the children’s best interests.

If you would like further advice about your options to seek parenting orders, including matters where you are not a biological parent to such children, you should contact our experienced family law team.

10 things to know about divorce

10 things to know about divorce

When a married couple separate, the whole event is often described as a divorce.

However, divorce has a very specific meaning under Australian law. It is not a property settlement, it is not a separation, it is not sorting out the arrangements for children. A divorce is a court order ending a marriage. It is like the official tearing up of your marriage certificate. There are a lot of myths and misunderstandings around divorce, so here’s 10 key things to know about divorce.

1. For a divorce order to be made, your marriage must be broken down irretrievably.

That is, you will not resume married life. You’ve made up your mind and it is final.

2. You do not need to provide the court for a reason for your divorce.

The Family Law Act 1975 established the principle of no-fault divorce in Australia. Therefore, the court does not need to hear or judge the reason why the marriage has irretrievably broken down, that can stay between the two of you.

3. You must have been living ‘separate and apart’ for at least 12 months.

This is easiest to prove when one of you has moved out of the former matrimonial home and you have been separated ever since. It is common for people to been separated but have lived separately under the one roof for all or some of the 12 months of separation. To prove you were separated during this time, you must show there was a change in the way you related to each other after separation in comparison to beforehand. This could include:

• Sleeping in separate bedrooms;
• No sexual relations or intimacy;
• Not helping each other out with household chores such as cooking each other dinner or doing the other persons laundry;
• Having separate finances ;
• Not attending social functions or events together;
• Not socialising together.

Periods of Reconciliation

It is also common for people to attempt reconciliation after they have separated.

If the reconciliation lasts for a period of less than 3 months, you may add the periods before and after the reconciliation together to obtain the necessary 12 months.

However if the reconciliation lasts for a period longer than 3 months, the clock starts again for the 12 month period at the end of the reconciliation period.

4. You must demonstrate to the court that there have been reasonable arrangements made for the care and welfare of any children under the age of 18.

This involves explaining the arrangements made for the child in line with their:

• Living needs
• Schooling needs
• Health needs

5. If you are applying for a divorce within two years of when you got married, you will need to prove that you have attended counselling.

Visit the Family Relationship Centre website for a list of court certified counsellors that can give you a certificate demonstrating to the court you and your spouse have attended counselling.

6. You must have a jurisdictional connection to Australia in order to apply for a divorce here.

Either you or your to be ex-spouse must either:

• Regard Australia as their home and intend to live here indefinitely after the divorce; or
• Be an Australian citizen by birth, descent or by grant of Australian citizenship; or
• Ordinarily live in Australia and have done so for 12 months immediately before filing the divorce application.

As long as one of the above criteria is satisfied the Court will be able to hear your Divorce Application, regardless of where you were married or where you previously lived.

7. The Court will only focus on your divorce application.

Many people come to us thinking a divorce application also encompasses a property settlement, spousal maintenance, child support and interim orders. Although this may be the case on US TV shows, it doesn’t work that way in Australia. The court will only consider whether or not it should grant a divorce. The court does not have to have any regard for if both parties of the marriage want to get a divorce or if only one party does.

Property and children’s matters are separate court applications.

8. A divorce is not obtained overnight.

When the application is filed the Court will list it in court for a hearing. The date of the hearing will most likely be a couple of months away.

Provided that the court is satisfied that you have met all of the requirements a Divorce Order will be made but it does not take effect until one month and one day after the hearing.

9. Until your divorce is final, neither of you are able to get married to anyone else.

If you do, you will be committing bigamy which is a criminal offence in Australia. Perhaps just put a few more months into the wedding planning and wait for after the divorce has taken effect.

10. The Will you made during your marriage will now be invalid.

If you have a Will at the time the divorce is obtained certain clauses will be revoked because of the divorce. These clauses include any provision you have made for your former spouse, any grant of power you have given them or if you appointed them as an executor of your will.

Any clauses that appoint your former spouse as a trustee of a trust in which the beneficiaries of the trust include children of your former spouse will not be revoked. This means your former spouse will have control over money or property you have your children.

If you separate from your spouse and do not have a Will, your former spouse may still inherit if you die before a Divorce Order is issued by the Court. If you have never made a Will, only a Divorce Order will ensure that your former spouse will not be able to inherit your assets.

Rather than leave these matters to chance it is best to be on the safe side and make a new Will after your divorce to ensure your intentions concerning your former spouse are crystal clear.

Getting agreement about property through the courts

Most family law property matters are resolved by agreement.

Sam McGee has written previously about how family law disputes can be resolved without going through the courts at all.

Even when court proceedings have been started, in the vast majority of cases a compromised agreement is reached at some point.

Whether or not there are court proceedings on foot, it is critical that once an agreement has been reached it is made binding. One of the ways to make an agreement binding is to apply for final orders to be made by consent.

Even when by consent, final orders can only be made by the court if the court is satisfied that, in all the circumstances, it is just and equitable to make those orders.

This means that getting final orders by consent really has two steps:

1. Coming to an agreement with the other party, and
2. Persuading the court that the agreement is “just and equitable” so that orders can be made.

In a recent case listed in Melbourne, a husband and wife reached an agreement for a property settlement that provided for the wife to receive a payment from the husband of $30,000. This was out of an overall property pool of $251,000 (non-super) and $54,000 (super). The husband was retaining the rest of the pool and all of his super.

Effectively, the wife was getting between 9% and 10% of the overall pool.

Court proceedings were already on foot (and a final hearing was a week away) when the agreement was reached. The husband and wife sent their agreement to the court and requested that final orders be made by consent. The agreement appears to have been sent to the court without any supporting information explaining how the agreement was a just and equitable outcome.

Federal Circuit Court Judge Anthony Kelly directed that the parties file an agreed Statement of Agreed Facts so his Honour could consider whether he could make the orders as agreed.

A statement of agreed facts was filed, but his Honour found that he “could not, without more, make a final order approving the parties’ proposed compromise.”

Reading the judgment, it seems that there was just not enough meat on the bones in the Statement of Agreed Facts to justify the agreement. This resulted in an exchange in court where his Honour commented “I am concerned that an award of 9% [to the wife] for even a relatively brief marriage is not just or equitable and I cannot approve it and will not approve it.”

It is difficult to imagine that after that exchange the wife would have still been prepared to agree to only a payment of $30,000.

To me, the lesson from this case is less about whether or not the agreement was fair and more that it is very important that when asking a court to make consent orders a lot of care and attention goes into explaining why the agreement is an appropriate outcome. Skimping on this step can result in further delays, more costs and – worst of all – it can disturb the agreement altogether.

It is possible to make agreements about family law property settlements binding without going through the court system and for advice about that or any other aspect of your family law matters you can see a member of our Family Law team by calling 03 5445 1000.

Location orders for children

In the unfortunate situation where a parent removes a child and the other parent is unable to locate the child, a party can make an Application for a Location Order.

A Location Order requires a third party, such as the Australian Federal Police or Centrelink, to provide to the Court any information about the location of the child and/or the parent who has taken the child.

As well as the Application, the Applicant must also file a supporting Affidavit setting out:

1. Their personal history and the personal history of the other party;
2. The history of the relationship between the parties;
3. Details of the history of previous court proceedings between the parties (or lack thereof);
4. The relationship between the child and the Applicant;
5. The possible location of the child and the basis of that belief;
6. Any steps that they have taken to locate the child prior to filing the Application;
7. The anticipated effect if the Court did not make the Order; and
8. Why they believe the other party (e.g. Centrelink or the Australian Federal Police) will have the required information (e.g. the other party is believed to be receiving Centrelink payments.)

As with all parenting matters, the Applicant needs to convince the Court that the making of the Order is in the child’s best interests.

If the Application is successful, the third party (e.g. Centrelink or the Australian Federal Police) will provide the necessary information to the Registrar of the Court.

Location Orders can be a useful or necessary step in such situations, which thankfully are extremely rare.

Supporting the needs of children with mandatory mediation in family law matters

As Sam McGee, one of the Family Law Specialists at OFRM, wrote recently, mediation is a useful way to resolve family law matters.

Legislators and the Court have also recognised mediation’s value and have made it mandatory for parties to enter into mediation before commencing court proceedings for children’s matters. The way in which this is made mandatory is by the Family Law Court rules requiring in most circumstances that parties cannot commence court proceedings seeking orders regarding children without filing what is known as a “section 60I certificate”. A 60I certificate is a certificate that confirms the parties have attempted to resolve the matter through mediation known as family dispute resolution before commencing court proceedings.

There are many benefits in using family dispute respolution to sort out children’s matters.

Firstly, it can be a more rapid means of resolving parenting disputes in comparison to litigation, which can take months if not years to finalise. Resolving children’s disputes quickly is particularly important where young children are involved because even relatively short periods of uncertainty or instability can have a significant impact on them.

Family Dispute Resolution also provides the parties in dispute with a forum in which they can be heard and understand the other party’s perspective. Parties, are given the opportunity to speak about issues and experiences important to them in the situation. This might be the first time they are able to speak about the issues surrounding the dispute since separation. Alternatively this may also be the first time they have heard the other party speaking about such issues. These opportunities do not usually present themselves in legal proceedings and can help the parties come to an agreement quicker as they begin to understand the other parties side and find middle ground.

Family Dispute Resolution also assists parties to maintain or develop a cooperative approach to parenting and continuing such arrangements. This is particularly important in children’s matters as parties will need to be able to communicate effectively when circumstances change as children grow older.

Every family has their own unique circumstance and quirks. One of the original proposed advantages of family dispute resolution is that the process can potentially yield better arrangements for parents in dispute in comparison to decisions made by the courts. These tailor made agreements are far more flexible and specific to the needs of the parties than the outcomes available through the court process.

However, if you are in a situation where you think you may need to attend Family Dispute Resolution mediation it is vital that you obtain advice from our family law team before attending. Our family lawyers will be able to advise you on how to approach the mediation and what would be the likely outcome if you have to go to court. Call the Family Law team on 03 5445 1000.

10 things to consider before you start family law court proceedings

Believe it or not, as family lawyers we pride ourselves on sorting a matter out without having to resort to court proceedings. Not having to head to court always means a cheaper, quicker and less stressful outcome for our clients. Invariably it also means that you the client end up with a result you are more happy with in the long term.

Sometimes court is inevitable — maybe because the other party is being unrealistic, or orders are needed to protect assets, or because the law is not clear on what should happen for your particular situation.

But where court is only an option it is worth asking yourself and your lawyer these questions.

1. Will court lead to a quicker result?

Unfortunately, the family law system is plagued with significant delays — 2 to 3 years between first court date and final hearing is not uncommon. While commencing court proceedings can be a good step to take to get things moving, it doesn’t necessarily mean a quicker resolution. Make sure you continue to focus on getting the matter resolved, not just the next court date. You and your lawyer need to have discussed and agreed on the strategy to get the matter to settlement.

2. Would we be better to mediate before court?

In any family court proceedings for a property settlement, one of the first things the court is going to insist on is mediation. Mediation has a high rate of success in resolving matters. If all relevant information is available you may be better trying to arrange mediation before court proceedings.

3. How much is court going to cost as compared to just continuing to negotiate?

Make sure that you understand what is the cost of going to court compared to continuing to negotiate — keep in mind it is also not just the financial cost but the emotional cost and your valuable time that needs to be factored in

4. What would a judge be likely to decide in my matter and is that the most likely outcome in court?

It is simply stunning how many people head off to court not having a clear understanding of what the judge is likely to decide in their matter. Experienced and skilled family lawyers will know this and make sure you understand it.

5. Is there a clear offer from me and a clear offer from the side, if not: why not?

It is amazing the amount of times we see other lawyers tell clients to take a matter to court without the client understanding what their position is or what is the position of the other side. In a small amount of cases this is appropriate — like where you have to urgently go to court to protect assets. However, in most circumstances you should

6. How far apart are we?

Again, before you decide to court, make sure you know what the scope of the dispute is. You should also understand from what your lawyer has told you what the difference is in proportion to your likely legal costs — the right result for you is one that has the right balance of these factors.

7. Will you be appearing for me in court at court hearings, if not should we discuss the matter with the barrister before we start court proceedings?

At OFRM, we try to appear on your behalf in court for most court dates, although briefing counsel can be useful in some interim matters and most final hearings. If a barrister is going to be involved, it can be a good idea for your lawyer and you to meet with them even before commencing proceedings as discussing your matter with another person to be included in your team can sometimes provide an insight that can help lead to earlier resolution

8. Have we got all the evidence we need for the court hearing?

I often describe the family law process as a journey of narrowing the number of issues in dispute. Often these issues in dispute are matters which can be solved through evidence – for example bank records to prove what money was received, a valuation to prove what something is worth. Sometimes you are better to close the gap on that evidence than go to court. It’s a good idea to make sure you understand the evidence gaps when thinking about whether to start court proceedings.

9. Is there any sense in me trying to talk directly to my ex to try and resolve it?

You’ve separated, you’ve got lawyers, and there’s been correspondence and negotiations back and forth. It may seem odd, but even with all that water under the bridge many matters can then resolve when people decide to sit down together and work it out. This can make sense as by that time you have a good understanding of the relevant factors and may have adjusted to separation to an extent that you and your ex can have a sensible discussion. There are many situations where this is not appropriate, but where it is, it can be a useful step

10. How long is court likely to take?

The answer can be like how long is a piece of string but don’t go in to court without your eyes wide open about how long the court process will take. Factors like what is in dispute, how long a hearing would take, what evidence needs to be obtained and even which court and which judge will alter the estimate of time.

Is court the only option? Other ways of resolving family law disputes

The vast majority of Family Law disputes are resolved without a Judge needing to determine the matter.

In the Family Court in 2015/6 only 319 cases out of the 3017 cases commenced (that’s only 1%) ended up with a judge making the final decision.

The Federal Circuit Court had 17,523 applications for final family law orders in 2015/6 but of those, only 1,479 cases had the judge make the final decision – that’s less than 9%.

Obviously this means many family law cases are resolved before a final hearing. Even more family law disputes are resolved by negotiation without people having to even go to court.

With our Family Law courts facing severe lack of funding and delay, resolving matters without having to go to court is more important than ever. At OFRM our main aim is to help you resolve your matter as quickly and smoothly as possible — which usually means without going to court.

The Family Law system encourages settling out of court, Alternative Dispute Resolution (ADR) or outcomes without requiring a judicial determination has long been a feature of the Family Law system.

For parenting disputes, it is mandatory for the parties to attempt to resolve their matter through mediation known as Family Dispute Resolution (FDR). There are some exceptions to this requirement such as genuine urgency and allegations of family violence or child abuse but in most instances you cannot commence court proceedings without participating in Family Dispute Resolution.

FDR can be great to resolve matters. Even if agreement is reached it is often a sueful process to narrow and define the issues. However, it is essential that prior to FDR you obtain your own independent legal advice.

For property disputes between separated couples, mediation including lawyers is an extremely effective way to reach agreement. Even parties that find themselves in Court for property disputes are required to participate in this form of dispute resolution and make all efforts to resolve the matter without needing to progress to a Trial.

While not common, the Family Law system also recognises arbitration as a form of dispute resolution whereby an appointed “Arbitrator” effectively determines the outcome after a relatively informal hearing.

This form of dispute resolution can be attractive to both parties if the alternative is a very long wait for the Court to be able to determine the matter by way of a Trial.

A Court Trial or Final Hearing should be seen as the last resort and other options for resolving the dispute should be explored. Ultimately, it will depend upon the issues in dispute and it must be said, the attitude of the other party to the dispute as to what form of dispute resolution would work and the likelihood of its success.

Family Law property settlements and superannuation

When the Family Law Act was established in Australia in 1975, the Act didn’t consider superannuation as an asset to be part of a division of property.

In 2002 the Family Law Act was changed to enable property settlements to include a “split” of superannuation from one spouse to the other.

To have this happen the act had to change to recognise superannuation as an asset – although it is an asset different to other assets like your house or car given that is owned by a trust on your behalf and until it vests you really only have a beneficial entitlement to your super. Of course, you also usually will not be able to access your superannuation law, until “preservation age” which for most is many years down the track from your property settlement.

Superannuation interests also vary in their nature. Most superannuation interests are “accumulation interests” where, as with most investments, their value is calculated by the monetary contribution to the superannuation plus investment return less administration fees.

However, there are interests known as “defined benefit interests” where their value is attributed to a formula which usually depends upon factors such as a worker’s average salary at the time that they cease employment. Calculating a member’s value for these interests at any given time is more complicated and under Family Law, there are specific valuation regulations that apply to these funds.

Also becoming more common are self-managed super funds, where the parties have established their own superannuation fund rather than keeping their super in an industry fund.

So how does the court deal with super in determining a property division?

Firstly, it is necessary to value the superannuation. With accumulation funds the valuation is usually quite similar to what is on your annual super statement. For defined benefit funds they need to be valued in accordance with formulas set by the Family Law Act. A self-managed super fund will be valued by valuing the assets that it has.

Then a court needs to determine whether the superannuation to be split and if so how.

Usually for longer relationships where both couples are still some years away from being able to access their superannuation, the Court would take what is known as the “two pools approach” where non-superannuation assets are considered in one pool and the superannuation in another. This approach is designed to reflect the differing nature of super and non-super and to ensure that one party does not end up with a significantly greater proportion of superannuation to non-superannuation.

The differing nature of superannuation interests may result in different treatment from the Courts. For example, superannuation interests that can only be accessed as a pension, have been held not to be property for division between spouses notwithstanding a lump sum value could be attributed to the relevant superannuation interest. In those cases, the superannuation pension was held to be a future income stream, thereby a future resource of that party.

Splitting self-managed funds can often be a bit trickier. While the separating couple may be joint Trustees of the fund which may own commonly held and used assets like real estate and shares, it is important to remember that they are still superannuation assets with those assets more difficult to unscramble to affect a split.

Superannuation and family law can be complex - you really need to make sure you get legal advice from us specific to your situation to make sure your super is dealt with fairly in a property settlement.

Cash under the mattress – when is a final property order not a final property order?

Whether in court or around the living room table, former couples trying to agree on property settlement have an obligation to provide a complete picture of their financial circumstances.

This obligation is very broad and set out in some detail in the Family Law Rules 2004.

Even when making property settlement orders by agreement, the court needs to be satisfied that the proposed split of property is just and equitable. There is no way a court can determine that if there is not a complete picture of each party’s property, liabilities, income and financial resources.

This obligation can also work to level the playing field where perhaps one spouse has a lot more control or understanding of the finances then the other.

What happens if not everything is disclosed?

Even after final orders have been made, a party can apply to set aside all or part of those orders taking into account the non-disclosure.

If that party can prove to the satisfaction of the court that there has been a non-disclosure that amounts to a miscarriage of justice, the orders can be set aside, varied or replaced with new orders.

The same may go for a party failing to disclose something before signing a binding financial agreement (or “pre-nup”).

Before making such an application, there are some things to consider, including:

• Can I prove the non-disclosure? You may find payslips or bank statements showing income or savings that were never disclosed, it may be that simple. But what if the allegation is under-the-table payments or cash under the mattress – what evidence can you provide to the court to show it exists?
• Did you request detailed financial disclosure before the orders were made?
• Is the non-disclosure so significant that it makes the orders unfair? What orders would be made instead? Would I be better off? Could I be worse off?
• Have I disclosed everything? Make sure your own house is in order.

Of course, it is much better to not have to um and ah about applying to set aside final orders by ensuring that there is full and frank financial disclosure before any final agreement is reached. An experienced family lawyer should be able to advise you about what disclosure should be requested and exchanged to enable a swift and appropriate agreement about your property matters.

There are other circumstances that can lead to an application to set aside final orders. If you need advice about this or other aspects of family law, make an appointment with one of our family law team.

Family Law and children's education

With term 2 now well and truly underway, now is a good time to debunk some of the myths surrounding Family Law and children's education.

First up, choice of school. Most separated parents are able to reach agreement on which school their children will attend. Sometimes that is by just continuing at the school already enrolled, or carrying out previously agreed plans.

Often the ability to pay school fees becomes a determining factor, especially when life becomes more expensive post separation.

However, sometimes agreement cannot be reached and then we need to think about how the law will be applied. Thinking about what a judge would do is often helpful in assisting parents to reach agreement.

There is no legal presumption that favours the parent who the children are living with being the one who decides which school — rather the Family Law Act provides the decision between competing proposals must be made on the basis that the best interests of the children is the paramount consideration.

Offering to pay the fees or a bigger share of the fees does not add weight to a parent’s proposal, although the court will be interested to know that the financial commitments for the proposed school can be met fairly by the parents on an equitable basis given their income and financial resources.

The types of things the court looks at in determining which school includes things like the prior intention of the parents, religion and cultural traditions, the amount of travel involved and the ability of the school to meet any special needs or interests of the children.

The court requires that proper regard must be had to the wishes of the children but there is no presumption that a decision must accord with the children's wishes. The approach the court has taken in past cases is quite circumspect about children's wishes, especially as children can put higher emphasis on things like friendship groups that is less of a factor for them in hindsight.

These days, parents often turn to published Naplan results as an argument for or against a particular school. Such results are only one factor the court would consider and is usually outweighed by information regarding he school that is more specific for the individual child such as for a child talented in maths, that they have a maths extension program or for a child struggling with literacy, they have a reading recovery program.

So what should you do on a practical level?

It's important to not leave such discussions too late as time pressures if you don't sort it out early might mean you are forced into compromises you wouldn't have made if time was on your side. As a rule of thumb you would want to have an agreement on school reached well before school orientation days and interviews start which can be as early as term 1 for grade 6 to year 7 and usually term 3 for Prep. Therefore starting the discussion before kinder and grade 5 start is not excessive.

You should thoroughly research schools to form your own opinion as well as researching the schools your ex prefers. Get the information packs, attend open days and information nights, talk to parents of current students. Think about what your child needs from a school. Think about how it would work practically — drop off and collection, before and after school programs, attending out of school hours functions.

These days there are even businesses which will help parents assess schools for your children.

Your children will benefit if you can reach agreement so put lots of effort into that. Attend mediation to see if you can resolve the issue — but before heading to mediation make sure you chat to us for legal advice because this is a situation where you need very specific advice.

Court proceedings may be necessary and if so OFRM's family lawyers can assist you getting the matter determined by a court on the basis of the right evidence from you in a swift and cost effective manner. Call us on 5445 1000 to discuss further.

When do kids get to make up their own minds?

Of all the issues involved in family law matters involving children, the issue where I suspect the most misinformation exists is whether there is a magical age where children can decide for themselves what the parenting arrangements will be.

Clients assure me that their GP/teacher/friend/counsellor said wait until the child is [insert age here], then it will be up to them.

They have “a friend who went through all this before” and were told that a [insert age here] year old does not have to see Mum or Dad if they don’t want to.

Let me put the issue to rest – there is no magical age.

Technically, the Family Law Act gives power to courts regarding children from the moment of birth to their 18th birthday. What happens in those years in between?

When determining parenting arrangements, the paramount consideration for Australian Courts is what is in the best interests of the children.

It is true that for your average child (not that your child is in any way average), the views of a 15-year old would carry more weight than an 8-year old. But what about a particularly immature 15-year old? Or a very strong-willed 11-year old? Or a 17-year old with a significant intellectual disability? What happens when promises of Xboxes and tickets to see Justin Bieber are influencing the views?

The views and wishes of a child are just one of many things considered when working out what is in that child’s best interests. The importance given to a child’s view can be given more or less significance having regard to:

• Not just the age, but the maturity of the child.
• How strongly the child’s views are expressed and held.
• The existence of other factors, such as factors around a child’s safety, etc.

If a matter is in court the children’s wishes may be determined in a range of ways including the tested evidence of the parties, a family report or an independent lawyer for the child. If court proceedings are not part of the picture a child could be involved through child inclusive mediation.

Once final parenting orders made under the Family Law Act, they are intended to have full force and effect until the child or children turn 18. So what should you do if you have a child under 18 that refuses to see the other parent – or if you are that other parent?

There may be both legal and non-legal solutions this issue, whether or not there are court orders in place. To get advice about this and any other Family Law matters, make an appointment with a member of the Family Law team at O’Farrell Robertson McMahon by calling 03 5445 1000.

Property Settlement Does Not Always Mean Altering Interests in Property

Usually you would expect that if you separate you then have a property settlement — and that a property settlement means one person ends up paying or transferring an asset to the other.

However, in recent times the Family Courts have been prepared to order in some very specific circumstances that each party just keeps what is owned in their own name.

The 2012 High Court decision of Stanford provides that a judge must only make orders altering interests in property if they are satisfied that it is "just and equitable" to do so. For most separating couples, the "just and equitable" hurdle is easily satisfied because there are jointly owned assets and that joint ownership means there has to be an order altering interests.

A recent decision is another example that a Family Law Act Court need not always be satisfied that an adjustment of property should occur, even in quite long relationships. Chancellor & McCoy concerned a couple who had been in a same sex relationship for 27 years. At the end of the relationship the Applicant had net assets worth $720,000 and the Respondent's assets were worth $1.7m. Factors that the court took into account included:

• there was no intermingling of their finances
• the parties did not have a joint bank account
• each party acquired property in their own name with there being little exchange of the detail of these acquisitions to the other party
• each party remained responsible for their own debts
• each party was able to use the remainder of their wages as they chose without explanation or accountability to the other
• the parties at the time of separation were unaware as to the worth of the assets acquired by each of the parties during the relationship and the decisions that had been made in respect to the acquisition of these assets.
• the payment of a weekly amount of about $120 per week as board/rent/mortgage repayments from one partner to another was not considered to be "financial intermingling"
• the court seemed to take on board the argument that one party had been better at managing her finances (especially through salary sacrificing into superannuation)
• that the party with the less assets was still working and able to accumulate further wealth
• that they had equally shared the day to day living expenses

The Trial Judge was not satisfied that altering their interests in property was “just and equitable”. The Judge was influenced by the fact that on the evidence presented each party lived quite separate financial lives and did not combine their income and resources to any significant extent.

This case is another reminder that you cannot assume that a Court will always interfere with parties' existing rights, even when it is a long relationship.

What is the impact of this decision?

This decision confirms that there is a class of situations, even though small, where it will not be just and equitable to adjust property between a couple at the end of their relationship. The situation where there property has been kept separate throughout their relationship is one of those situations.

On a practical level, this case means it is vital for you to get legal advice if you have separated or a contemplating separating as it may be that your situation is one where a court wouldn't divide property.

To court or not?

If your relationship ends, does that mean you are going to end up in court?

Statistics say unlikely, but what happens in your individual matter depends on a few different factors.

When a relationship breaks down there are a few different issues that could see you end up in court:

• arrangements for the children
• property settlement
• child support

Most people are able to reach an agreement without having to go to court, many people reach an agreement between themselves and their involvement with lawyers is only to have that agreement formalised so that it can't be changed later on.

Ideally, agreement would be reached with the assistance of a lawyer providing independent legal advice to assist you reaching the agreement and to make sure the agreement is fair and importantly that it covers all it should.

The family law process tries to ensure that people use court as a last resort after exhausting trying to reach agreement between themselves. For property matters this is through "preaction procedures" which requires the exchange of relevant documents and offers to try and encourage early settlement. For matters regarding children, this occurs by the court requiring, unless there is family violence or particular urgency, that the parties participate in Family Dispute Resolution and obtain a certificate that they have done so before they can commence court proceedings. In child support matters, there is a system for reviews to happen before you can consider going to court.

If these paths are followed, a matter will only end up in court if the parties have been unable to reach agreement despite significant efforts being put in by both them and their lawyers. This might occur because there is a legal issue that needs to be resolved, a difference on the value of assets or what is best for the children or if someone has unrealistic expectations.

Sometimes court proceedings may commence not because the parties are in hot dispute but rather to try and get things moving more quickly to finalisation. Commencing court proceedings can shorten the length of negotiations as each party is compelled to do certain things by certain dates. I often say that commencing proceedings is like hopping on a conveyor belt heading towards the judge making a final decision - you can jump off with an agreement but otherwise you are moving closer to the judge making the decision if you can't. This means that it may suit your particular situation to start court proceedings rather than continuing to hope that negotiations back and forth will soon reach agreement.

Sometimes though it is necessary to commence court proceedings urgently or sooner rather than later in order to preserve your position - that might for such things as to get urgent orders regarding children, to force the sale of a property or to

So, what are the key things to think about when thinking about court?

• going to court may not always be the worst choice, sometimes it might be unavoidable, sometimes it is the best way to get your matter to resolve
• an experienced family lawyer will work with you to explain the pros and cons of whether you are best to head to court or keep your matter out of court, helping you to make the decision that is right for you

Call 03 5445 1000 if you want to speak further to one of our family lawyers about this.

Facebook brings your life to Family Court

All too often you will see someone venting on Facebook — especially when when they are experiencing difficult and emotional times¹. After separation is not the time to turn to Facebook to share your thoughts as such posts can have dreadful ramifications.

It is not uncommon for Affidavits filed in Family Law proceedings to have voluminous pages of Facebook posts annexed to them:

• photos posted on Facebook of their former partners out drinking alcohol when the children are in their care as proof that a parent is not child focussed or does not have the capacity to meet their children’s needs
• photos of a party on a holiday or with a new purchase might point to money not disclosed or an understatement of their ability to support themselves
• A Facebook post of a parent denigrating their former partner as evidence that a parent is not encouraging the relationship between that parent and the children

In a recent reported case, a father’s Application to have his children returned to him from Australia to New Zealand was not successful as the Judge accepted Facebook evidence from the mother in which the father had told her that he wanted the children to live with her.

Another interesting matter was where Facebook posts of the father and children at the beach was accepted by the court as proof that the father had contravened an order that his time with the children was to be only at the child’s grandparent’s home. A friend of the father, obviously also a accessed the photo, printed it and provided it to the mother. The Court took into account that evidence when finding that the father had breached the Order. The father had also denied taking the child to the beach, so the evidence also negatively affected his credibility.

In another reported case a status update from a mother was admitted as evidence in proceedings. The mother had posted on her Facebook profile:

"I was worried for a while there he wouldn’t turn up, but he was running late. I don’t care. I’ve still got my babies. Felt like being a smart arse and telling him to be afraid that I won’t take them back for another six months which would equal another $20,000".

The mother was found to have deliberately prolonged the proceedings. This status was used as one part of evidence. The presiding Judge concluded that the mother had abused the Court process and had exploited the father by making him incur further legal costs and had wasted the Court’s time and resources. A $15,000 Costs Order was made against the mother.

It is also important that parties in Family Law proceedings are aware that Section 121 of the Family Law Act makes it an offence, punishable by jail for up to a year, to publish information in a public forum about Family Law proceedings — this includes publishing on Facebook.

In a 2013 case known as Lackey & Mae (Family law reported cases are pseudonyms) the father and his family members had posted comments and statuses on Facebook in which they criticised and denigrated the Court, the Judge, the mother, the Independent Children’s Lawyer and experts in the proceedings. The Court ordered that the father and his family members remove all references to the proceedings from their Facebook pages. An Order was also made for a Marshall of the Court to monitor the father and his family’s Facebook pages for the following 2 years to ensure they complied with the Order. If they didn’t, then the matter was to be referred to the Australian Federal Police.

It is important that upon separation and during Family Law proceedings you should:

• Change your password — Ensure that only you have the password to access your account.
• Check your privacy settings — Check who can see your profile and how much of your profile they can see. Check that you have to first approve any “tagging” of yourself in photos. Also check whether others can find out your location through Facebook.
• Review your "friends" list and remove people if necessary — People whom you considered friends during your relationship may not be post-separation. Such friends may be waiting to take a screen shot of your slip ups.
• Think before you post — Remember that everything you post has the potential to find its way into evidence in your proceedings. Do not post about your proceedings or your former partner. Be child focussed. If you would not want a Judge to read it, do not post it!
• Consider going offline — It may be best for you to avoid using Facebook (and other social media) until your Family Law proceedings have concluded.

---

1. For the dangers of this our related post titled How to defame someone in 2 minutes or less.↩

What age do the kids get to make up their mind where they live?

Technically speaking the Family Law Act gives courts the jurisdiction to make family law orders regarding arrangements for children from the time of the birth of the child until they turn 18. The age can be even less if the child is married or in a defacto relationship (which throws up a few other legal issues).

Therefore a court can make an order regarding where the child lives up until the child is 18. An order stops being in force once a child turns 18 or marries or enters into a defacto relationship.

On a practical level, this means that you could apply to the court for an order regarding the living arrangements of a 17 year old.

It is important to then take into account how the court deals with such an application. In Family Law courts, the children never get to dictate what is to happen. However, the court is obliged to take into consideration the views of the child.

The court can do this by:

• Having regard to the matters contained in a family report prepared for the court
• Ordering that the children be represented by an Independent Children’s Lawyer — who is obliged to put the children’s views before the court although they can present to the court that they disagree that those views are not in the best interests of the child
• Or by such other means as the court considers appropriate

Usually, the more mature a child is — and I deliberately say mature rather than old — the more their wishes will be compelling to the court. They usually also become more compelling to the parties. However, the court does not just accept the view of the child at face value — the court will look at the circumstances around those wishes. This is what I sometimes refer to as the “PlayStation” factor – looking at why a child may have arrived at a view and is that in their best interests, is it just because someone has promised them a PlayStation.

Sometimes a practical element then comes into play — there is little point in litigating and getting orders if the child is going to make the implementation of those orders really difficult. That is why often there will be interim orders made to either test how something occurs or to gradually introduce the arrangements. It is also possible for the court to order that a counsellor oversees these arrangements.

What does this all mean? In my over 20 years of experience, I would say that the age is not the critical factor — rather you are better to put your effort into making sure your children are well supported so that arrangements are easily implemented.

Assessing Future Needs in Family Law

A while ago on this blog I promised to shed some more light on the 3rd stage of what a court does in considering what is the right division of assets in a family law properly settlement. (see What Percentage Will I Get?)

Us boring family lawyers call that stage the "future needs" or "section 75(2) factors". Having evaluated how each party contributed to the property, the court then turns to this stage.

The family law act stipulates a list of factors to be taken into account at this stage which includes:

• The age of each party
• Their state of health
• The party's income, property and financial resources
• The party's ability to be employed
• Whether the party has the care of a child
• The commitments of the party necessary to support themselves and a child
• The need to protect the role of being a parent
• The duration of the marriage
• The financial circumstances of a person the party is now living with

In addition, the act provides the court can take into consideration "any fact or circumstance which in the opinion of the court the justice of the court requires to be taken into account"

This last provision gives the court pretty wide discretion to take various circumstances into account and adjust he percentage split for them.

So it is the factors like this that mean that even if your contributions were equal during the marriage, one party may receive more of the pool as a "loading" for their future needs.

Family Law and the Aged

It's Thursday morning at the National Family Law Conference and there has been some interesting pondering over the dilemma that faces family law when dealing with a property settlement for older couples. This is a dilemma which will just continue to grow with an ageing population and people expected to live longer.

To complicate these scenarios even further, more of these cases are likely to involve couples in a second or subsequent relationship with their own children from previous relationships.

Add into that mix that the comparative positions may include one party being healthier than the other, one party needing nursing care and the other not, one likely to live much longer than the other.

While the Family Law Act has us look at both contributions and needs, a lot more time is usually spent on looking back at the contributions. When parties are close to retirement or indeed already retired, there is a need to look at what are the future needs. This will mean that we need to look more at the costs people will occur not just in the 3 to 5 years post their separation but right up to death.