Will an Independent Children’s Lawyer be appointed for my children in my parenting proceedings?

,

An ICL (Independent Children’s Lawyer) can be appointed in parenting matters in which proceedings have been commenced in the Federal Circuit and Family Court of Australia. An ICL is a court-appointed, legally aided solicitor who independently acts on behalf of a child or children in proceedings. However, they are not appointed in every single parenting matter before the Court.

An ICL does not ‘take instructions’ from children in the same way that solicitors act on behalf their parents. Rather, an ICL acts on the best interests of the child. An ICL is required to consider the views of the child; however, in assessing the matter and all the evidence available, they are to provide the Court with their own perspective about what arrangements they view are in the child’s best interests.

Pursuant to a historical case of Re K [1994] FamCA21, the Court will only appoint an ICL if some or all of the following criteria are met:

  • Alleged child abuse;
  • Unsuitability of either parent to care for the child;
  • Intractable parental conflict;
  • Proposal to remove the child far away;
  • Alienation of the child from a parent;
  • Proposal to separate siblings;
  • Cultural/religious difference;
  • Neither party is legally represented;
  • Special medical procedure is proposed for a child;
  • Anti-social conduct of a parent;
  • Strong wishes are expressed by a mature child.

As such, there are only specific types of matters in which an ICL is appropriate. If an ICL has been appointed by the Court and a Final Hearing has not occurred, there is a requirement for the ICL to meet with the child to give them the opportunity to express their wishes. The ICL is not, however, required to meet with a child under the age of 5 years, or if the child does not wish to meet with the ICL to express their view.

Although an ICL is paid for by legal aid, partners (mother and father) are requested to contribute to the ICL’s costs in the proceedings unless an exemption is granted.

To speak with one of our experienced solicitors at Southern Waters Legal, contact us at (02) 9523 5535 or info@southernwaters.com.au.

/0 Comments/by

Building Resilience in Our Children After Separation Through Positive Communication

,

Navigating life as a separated or single parent brings its own set of challenges, which may leave you feeling exhausted and low in emotional resilience. Juggling and separating your feelings about your ex-partner with a child’s feelings about the other parent is challenging.

The phrases and language we use post-separation can either empower our children or inadvertently reinforce negative beliefs that may diminish our children’s emotional resilience and self-esteem. Let’s delve into five toxic phrases that separated parents should avoid, and how to reframe these conversations to foster a positive environment for your children.

Phrase #1: “Your father/mother is useless with money.”

When tensions run high post-separation, it’s easy to vent frustrations about financial matters. However, casting blame on your ex-partner in front of your children can instill a sense of instability and anxiety. Instead, focus on discussing financial responsibilities calmly and constructively. For instance, you might say, “We have different ways of handling money, but we both work hard to provide for you. Let’s talk about how we can budget for things together.”

Phrase #2: “I can’t do this alone.”

Feeling overwhelmed is natural during times of transition, but voicing this sentiment to your children can inadvertently burden them with your emotional struggles. Instead, emphasise your strength and resilience: “It’s challenging to juggle everything, but I’m learning new ways to manage. We are like Dory – we just keep swimming!”

Phrase #3: “Your father/mother is selfish and only thinks about themselves.”

Encourage empathy and understanding: “Everyone has different needs and perspectives. Let’s try to understand where they’re coming from.”

Phrase #4: “Your father/mother never cared about us.”

Instead, focus on positive aspects of the co-parenting relationship: “Your father/mother loves you very much, and we both want what’s best for you.” “Your dad/mum is great at helping you with football practice/cooking/homework”

Phrase #5: “I don’t know how we’ll make ends meet.”

Financial worries are common post-separation, but expressing hopelessness can instil fear in your children. Instead, focus on proactive steps: “We’re making adjustments to our spending so we can manage our expenses better. It might be tough for a while, but we’re working on it together.” “It’s good to have a goal and save for this, let’s set a goal”.

Phrase #6: “I can’t believe your father/mother did that. They’re so irresponsible.”

Reframe to maintain respect: “We may have different ways of doing things, but your father/mother is learning and growing just like we all are.”

Phrase #7: “Your father/mother always causes problems.”

Foster understanding and empathy: “Sometimes we have disagreements, but we’re working on finding solutions that work for everyone and remember that the most important thing is we both love you very much”.

Phrase 8: “Don’t tell your mother/father anything we did and discussed.”

Children need to feel safe across both homes which includes the flow of information. Just as you don’t want to use them as a messenger, you do not want them to feel they live in two separate worlds that cannot cross over.

Aiming to provide a child-centered approach when communicating with our children on difficult topics, can promote a healthier co-parenting environment and protect children from being caught in the middle of parental conflicts. By choosing our words carefully and fostering open, supportive communication, we can empower our children to navigate the challenges of separation with resilience and optimism. This can assist in helping our children build a future where they feel secure, loved, and capable of overcoming any obstacles that come their way.

/0 Comments/by

How do I obtain a Passport for my Child after Separation?

,
I’m Separated… Do I need to ask for Consent to travel overseas with my Child? And how do I obtain a Passport?

Many parents wish to travel with their child (or children). Travel is one of life’s greatest luxuries, however many parents do not realise the legal restrictions on taking their child overseas once they have separated from the child’s other parent. Two common questions we often receive as family law solicitors are “Do I need permission from my ex to take my child on a holiday overseas?” and “How do I obtain a passport for my child?”.

Do I need permission to travel?

The general rule is that a child should not be removed from Australia without the consent of both parents or a Court Order. If you try to take a child outside of Australia without either of these things, the child’s other parent could apply to the Federal Circuit and Family Court of Australia (“Court”) for a Recovery Order seeking that you return the child to Australia immediately.

Further, pursuant to sections 65Y and 65Z of the Family Law Act, the parent who intends to travel commits a criminal offence that carries a sentence of up to 3 years in prison, if the child is taken overseas unless:

1. There is a Court Order in place permitting you to take the child overseas; or
2. You have the written consent of the other parent.

The above two provisions apply to cases where parenting Orders have been made, or where Court proceedings have been commenced and parenting Orders are pending.

Can I stop my ex from taking my children overseas?

If you have concerns that the child’s other parent may remove your child from Australia and not return, there are a number of measures in place to prevent your child from leaving the country.

Option 1

One option is permitting travel only to countries that are signatory to the Hague Convention, which is an international treaty between over 90 countries (including Australia). Countries that are signatory to the Hague Convention have agreed to uphold parenting Orders from other signatory countries and force the return of children if they are taken or retained overseas without the other parent’s consent.

Option 2

Another option includes obtaining a Child Alert to prevent the issue of an Australian passport. A Child Alert requires the Department of Foreign Affairs and Trade to scrutinise any passport application received in relation to your child. However, it is important to note that this does not guarantee that the application will not be granted, and it does not stop a child from travelling overseas.

Option 3

A third option is to have your child placed on the Federal Police Family Law Watch List (known as the ‘Airport Watch List’). This would alert the Australian Federal Police if someone were to attempt to travel overseas with your child and they would not be allowed to leave Australia, however, there are limitations to this method.

To apply to have your child’s name added to the Airport Watch List, you need to have:

• Court Orders limiting or preventing the child’s overseas travel and which seek that the Australian Federal Police put the child’s name on the list; or
• A pending application before the Court for such Orders; or
• Have a pending Appeal before the Court for such Orders.

If your child’s name is on the Airport Watch List, you may still travel overseas with your child, however, you will need to provide notice of such travel to the Australian Federal Police.

How do I obtain a Passport?

To obtain an Australian passport for a child, the Australian Passport Office generally requires:

1. Each person who makes decisions in relation to long-term issues (previously known as ‘parental responsibility’) for the child to sign the passport application; or
2. A Court Order made by the Federal Circuit and Family Court of Australia providing one parent with the power to obtain a passport for the child without the other parent’s consent.

In the absence of the above-mentioned Order, and if the other parent will not sign the passport application, you may be able to make an application to the Australian Passport Office for a passport to be issued under ‘special circumstances’. For example, if there is a family violence order in place, there has been no contact with the other parent for an extended period time, or if the travel is urgent.

You may also be able to make an application to the Court seeking an Order for the other parent to sign the passport application, or an Order giving you the sole power to sign a passport application.

What happens if I go to Court?

If you make an application to the Court seeking either of the above-mentioned Orders, the Court will consider various factors, including but not limited to:

• The reason for your travel;
• How long you propose to travel for;
• Whether the child will miss out on time with their other parent and if so, how this can be addressed;
• Which country you are travelling to; and
• If the Court is satisfied that you will be returning the child to Australia.

The Court may also request that you pay a sum of money, called a ‘travel bond’ as security that you will return the child to Australia. More often than not, if one party seeks to go on holiday and their ex-partner refuses to sign an application for the passport, communicating to such ex addressing the following, ensures that the application is signed: Confirmation of travel date/time.

What Court Orders should I seek?

It is important to seek legal advice in relation to the most appropriate Orders to seek to ensure that there are no issues in the future should you wish to travel overseas with your child or apply for a passport for your child. At Southern Waters Legal, our team of family law solicitors are experienced in dealing with overseas travel and passport issues and is here to offer you expert legal assistance.

If you are concerned that a parent may be planning to remove your child from Australia without your consent, you should contact us at (02) 9523 5523 as a matter of urgency, to make an immediate appointment with one of our experienced family law solicitors.

/0 Comments/by

Changing Your Child’s Surname After Separation: What You Need to Know

,

We frequently see situations where two parents end their relationship, and the parent who has reverted to their maiden name, or never actually took their partner’s surname to begin with, wants to know whether they can change their children’s surname. For example, common requests are to hyphenate the children’s name to include both parents’ surnames, or sometimes to change their surname completely. The short answer is that a parent cannot change a child’s surname without the other parent’s consent.

If parties are not able to agree in relation to the proposed change of name and there is no previous Order of the Court allocating sole parental responsibility to one parent, the parent hoping to change the children’s surname is required to file a Court application in the Federal Circuit and Family Court of Australia asking the Court to decide. In making this such decision there are several considerations the Court must consider, however ultimately, the Court must weigh up whether it is in the children’s best interests to change their name, some relevant factors in making this decision include:

• The short–term and long-term effects to the child of the change of name;
• The extent of contact with the parent whose surname the children currently have (past and future);
• The extent to which the child identifies with the parent whose surname they have;
• The extent to which the child identifies with the parent whose surname they do not have;
• Any embarrassment likely to be experienced by the child with the proposed name change;
• Any confusion of identity that may arise for the child, if the surname is or is not changed.

Ultimately as with every family law matter, there is no one guaranteed outcome, and the Court assesses each Application for a change of name on a case-by-case basis and with the best interests of the children at the forefront of its decision–making.

If you’re dealing with a family law matter or want to learn more, our dedicated and highly experienced team of family law solicitors is here to assist. Get in touch with us at (02) 9523 5535 or email us at info@southernwaters.com.

/0 Comments/by

How do I protect a gift or early inheritance I give to my children?

,

Early inheritances and gifts towards adult children are increasingly common as the generational wealth gap widens over time. Can such inheritances and gifts be protected in the event of a separation?

We are often approached from both:
1. Parents who intend to give funds to a child and want to protect the funds from a future separation, or have already advanced such funds; and
2. Adult children, who has received or are going to receive funds from their parents and either:
        a. Are in a relationship and want to protect the funds in the event of their separation; or
        b. Are going through a separation and are wondering what they can do.

Legal Solution

The options for protecting gifts/early inheritances are limited and depend upon a family’s specific circumstances. However, they include:

• Entering into a loan agreement with your child and/or child’s spouse, ensuring such agreement is drafted correctly, is commercial and is complied with. If this is the case though, is it really a gift?
• An adult child entering into a financial agreement with their partner/spouse that provides for the repayment of the contribution from the parents to either the parents, or, to the child prior to any further distribution. For example, if the parents gifted $500,000 to the child, then upon separation, prior to dividing a pool of assets worth $1 million, the child (or child’s parents) are to receive $500,000, before the remaining $500,000 is divided between the child and their partner.
We commonly see agreements prepared in the absence of family lawyers such as caveats on the title of properties, loan agreements and mortgages that do not meet the requirements of the Federal Circuit and Family Court of Australia. When that occurs the Court must ask whether the funds were a gift (and if so, to whom), or a loan. If they are found to be a gift, then the funds are ordinarily part of the pool of assets available for division between the parties.
What you should not do

If ever there is a thought or intention that funds gifted are to be repaid make sure you action it early. We sadly see good intentions and wishes so often forgotten. So do not sit on your hands and hope it will be an amicable separation where intentions are honoured and you see eye to eye. In our experience that does not occur and there is often a disconnect between parents, their child and the child’s spouse.

Unless you are willing for your gift or early inheritance to be included in a property settlement make sure to speak to a lawyer before any movement of money.

/0 Comments/by

Who keeps the pet after a breakup?

,

Historically, furry friends were given little consideration with respect to formalising a settlement following the separation of a couple. They were generally classified as property and if they were included in a settlement at all, they were considered to be a “chattel”. In practice, however, it was not very common that much consideration was given to pets when formalising an overall settlement.

However, by way of the Family Law Amendment Bill 2024, the government has recently proposed further amendments to the Family Law Act to place a greater emphasis on addressing pets when finalising a settlement.

The specific amendments proposed apply particular consideration to pets in determining who will continue to own the pet as a part of a property settlement, which will allow the Court to make Orders providing for the ownership of the pet to one party following separation. The government has suggested that the proposed amendments will work towards ensuring the safety of all family members following separation, including pets, in circumstances where regrettably pets are often used and abused in cycles of family violence.

To enable the Court to make such an Order with respect to the ownership of a pet, it will have to consider some specific factors, including:

1. any history of family violence during a relationship and who the perpetrator of said violence was;

2. the extent to which each person has cared for the pet historically;

3. any history of cruelty to the pet by either person; and

4. the relationships of either person, or a child of the relationship, with the pet.

These proposed amendments hope to solidify the significance that pets have in many Australian families and recognise them as a unique type of property in a way that they have not been recognised historically.

If you have a family law matter, please reach out to us at 02 9523 5535 or at info@southernwaters.com.au. At Southern Waters Legal we have an experienced team of family law solicitors who can assist you.

/0 Comments/by

Is My Ex A Narcissist?

,

As family lawyers, we are often told by our new incoming clients that their ex-partner is a “true narcissist” or that their psychologist has warned them that the examples they have been provided as to their ex-partner’s behaviour lend the psychologist to believe their ex is a narcissist.  What does that mean, is the term thrown around lightly, and what are the implications now that you have to navigate your separation from a narcissist?

Determining whether your partner is a narcissist is a complex and sensitive issue. Narcissistic Personality Disorder (NPD) is a mental health condition characterised by a specific set of traits, and it’s important to approach this question carefully. Here are some common signs of narcissistic behaviour that might help you assess whether your partner exhibits these traits:

Common Traits of Narcissistic Behaviour
  1. Excessive Need for Admiration: Narcissists often require constant praise and validation. They may frequently seek compliments and become upset or angry if they don’t receive the attention, they feel they deserve.
  2. Lack of Empathy: One of the hallmark traits of narcissism is an inability to empathise with others. If your partner shows little understanding or concern for your feelings, needs, or experiences, this could be a sign.
  3. Grandiosity: Narcissists often have an inflated sense of self-importance. They may exaggerate their achievements or talents and expect others to recognise them as superior, even when there’s no evidence to support such beliefs.
  4. Manipulation and Exploitation: A narcissistic partner may manipulate others to get what they want, using tactics like guilt-tripping, gaslighting, or playing the victim. They might also exploit relationships for personal gain without regard for the other person’s well-being.
  5. Sense of Entitlement: Narcissists often believe they are entitled to special treatment. They may expect others to cater to their needs and become angry or frustrated if those expectations are not met.
  6. Difficulty Accepting Criticism: Narcissists typically have a fragile ego, and they may react strongly to any form of criticism, whether constructive or not. This can include becoming defensive, angry, or dismissive when confronted.
  7. Control Issues: A narcissistic partner may try to control various aspects of your life, from your appearance to your interactions with others. This control is often exerted through subtle or overt manipulation.
  8. Superficial Relationships: Narcissists often struggle to form deep, meaningful relationships. Their connections with others may be superficial, with a focus on how those relationships benefit them rather than genuine care or affection.
What to Do If You Suspect Narcissism

If you recognise several of these traits in your partner, it’s important to consider your feelings and well-being. Living with a narcissist can be emotionally draining and damaging. Separating can be even harder, particularly if you have instigated the separation. Here are some steps you can take:

  1. Seek Professional Help: Consider speaking with a therapist or counsellor who can help you navigate your relationship and your removal from the relationship.
  2. Set Boundaries: Establishing clear boundaries can protect your emotional health. A narcissistic partner may test these boundaries, so it’s important to be firm.  Consider barriers that may need to be put in place to assist in negotiating including having a legal representative to advocate for you.
  3. Educate Yourself: Learning more about narcissism and how it manifests can help you understand your partner’s behaviour and develop strategies for coping.
  4. Prioritise Self-Care: Ensure that you are taking care of your mental and emotional well-being. This might include seeking support from friends, family, support groups and professional assistance in navigating the Family Law process.
  5. Consider Your Options: If your partner’s behaviour is causing significant distress, you may need to consider how you co-exist moving forward. Do you need to co-exist because there are children involved, if so, what tools can you use to minimise the impact on your health?
Final Thoughts

It’s important to remember that only a qualified mental health professional can diagnose Narcissistic Personality Disorder.   A diagnosis may never be forthcoming as your ex may not recognise their behaviour or the impact it has had on you and the family.

If your ex-partner exhibits several of the traits listed above and you have separated, consider obtaining advice from a specialist in family law who can assist you in navigating this process and who understands the challenges and negotiation involved with a person who exhibits these traits.

At Southern Waters Legal, our team of family law solicitors are experienced in dealing with separation from a narcissist and is here to offer you expert legal assistance.

/0 Comments/by

Navigating the Complexities of Child Support and Tax Compliance: What You Need to Know

,

The child support system in Australia plays a crucial role in ensuring that financial responsibilities are met between separated parents. However, recent revelations highlight significant issues within this system, particularly concerning the manipulation of tax returns to avoid child support payments. At Southern Waters Legal, our Family Law team is dedicated to helping clients navigate these complexities.

The Growing Problem of Non-Compliance

Recent data reveals that over 160,000 parents in Australia’s child support system failed to lodge their tax returns last financial year. This non-compliance has significant implications, as Services Australia, which administers the child support scheme, referred 168,082 parents to the Australian Tax Office (ATO) for overdue tax returns in 2022-23.

Failing to lodge a tax return is a common tactic some parents use to reduce their child support obligations. This practice often involves underreporting income, using cash-in-hand work, or complex business structures to evade proper child support assessments. Such actions can be seen as a form of economic abuse, significantly impacting the receiving parent, who is predominantly female and already facing economic disadvantage.

The Impact of Non-Compliance

The failure to lodge tax returns can severely affect the calculation of child support payments. Without accurate tax returns, Services Australia estimates income based on previous returns or average earnings, may not reflect a parent’s true financial situation. This discrepancy often results in unfairly low payments, depriving children of the financial support they need.

The repercussions are far-reaching. According to an interview conducted by the ABC with Lara Freidin from Women’s Legal Services Australia, this issue is a form of ongoing violence and economic abuse. It undermines the stability of children’s lives and places undue stress on the receiving parent, who must often initiate investigations or legal proceedings to address these discrepancies.

An additional impact on those who are tardy and have yet to update their income with child support is that the child support agency can issue a debt if they discover you have not been paying child support at the correct rate and your income bracket.

Government Response and Reforms

In response to these challenges, the recent federal budget allocated $5 million for reforms aimed at improving compliance and enforcement within the child support system. The reforms include enhanced scrutiny of tax return compliance and measures to better enforce payment obligations.

Despite these efforts, the ATO’s enforcement program only managed to recover a fraction of the outstanding child support debts. For many parents, navigating this complex system can be daunting, especially when dealing with hidden income or intricate business arrangements.

How to Address Child Support Issues

If you’re facing challenges with child support payments—whether as a payer or a recipient—seeking professional legal advice is crucial. A family law lawyer can assist in several ways:

  1. Reviewing financial disclosures: Ensuring that all income and financial information is accurately reported to prevent disputes and discrepancies.
  2. Navigating complex cases: Dealing with hidden income, business structures, and cash transactions requires specialised knowledge to ensure fair assessments.
  3. Enforcing payments: Legal action may be necessary to enforce payment obligations and recover owed amounts.
  4. Appealing assessments: If you believe the current child support assessment is unfair, a lawyer can help you appeal and seek a revised assessment.
Get the Support You Need

At Southern Waters Legal, our experienced Family Law team is here to help you navigate the complexities of separation and child support. We understand that every family situation is unique and requires a tailored approach to ensure fair and just outcomes.

If you are struggling with child support issues or need assistance with your family law matter, contact us today for a consultation, and let us help you secure the support you deserve.

/0 Comments/by

Navigating the Mediation Process Part 2: What to Expect in a Mediation

,

Mediation can offer a constructive and efficient way to resolve parenting and property matters. By choosing mediation, you empower yourself to actively participate in the decision-making process, while attempting a more amicable solution to court, whilst still being guided by an expert in family law who helps you navigate all the views you need to consider and who advocates for you.

Read more
/0 Comments/by

Navigating Privacy & Safety: How to Navigate Shared Digital Devices 

,

Going through a separation or leaving a partner can be a challenging and emotionally taxing time. And in today’s digital age, ensuring your privacy and safety on your Apple devices is paramount. If you’re finding yourself in this situation, here’s a guide to help you protect yourself and your data if you hold an Apple device:

Stop Location Sharing:
  • Navigate to Settings > Privacy > Location Services and turn off location sharing for all apps.
  • If you have shared your location with someone using the Find My app, you can stop sharing by tapping on “Share My Location” and disabling it.
Change Apple ID Password:
  • Go to Settings > [your name] > Sign In & Security > Change Password.
  • Choose a strong and unique password to prevent unauthorised access.
  • Consider enabling 2-factor authentication, if you haven’t already done so, for further security.
Family Sharing:
  • If you have Family Sharing set up, it’s essential to review what access your ex-partner has to your data.
  • Go to Settings > [your name] > Family Sharing and review what is being shared.
  • You can remove your ex-partner from Family Sharing by tapping on their name and selecting “Remove”.
iCloud and Subscriptions:
  • If you share an iCloud account and your ex-partner cancels their subscription, you may lose access to data shared under that subscription.
  • To avoid this, consider setting up your own iCloud account and unlinking any devices that are not yours.
Photos, Videos, and Messages:
  • If you share an iCloud account, your ex-partner may have access to your photos, videos, and iMessages.
  • Consider backing up your data and creating a separate iCloud account for your personal use.
  • This may not be the case unless you share an Apple ID or they have the password. It is recommended that you change the Apple ID password or create a new separate Apple ID if you were sharing one (see above for these steps).
Apple ID and Wallet:
  • Sharing an Apple ID could potentially give your ex-partner access to your bank or Apple Wallet card details.
  • It’s recommended to create your own Apple ID for privacy and security purposes.
Linked Devices:
  • If you have left a device with your ex-partner that is linked to your Apple ID, they may be able to access data stored on that device.
  • It’s best to unlink the device from your Apple ID.

Remember, these are real concerns and it’s crucial to take steps to protect your privacy and safety. If you have any questions or need further assistance, don’t hesitate to contact Apple Support for guidance. 

In times like these, seeking professional legal advice can also be helpful. At Southern Waters Legal, we have extensive experience in assisting people through separation and can provide the guidance and support you need. Feel free to reach out to us for a confidential discussion with one of our experienced Family Law Solicitors today at 02 9523 5535. 

We are not Apple specialists and cannot guarantee these steps alone will fully protect you. This blog is meant as a guide to educate and guide you on risks you may not have considered when separating. We recommend you contact Apple support to be assisted through these steps and gain more clarity if needed.

/0 Comments/by