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When parents are separated, communicating with each other can sometimes be difficult.  Emotions are high and arrangements need to be made for the children but parents are still human and still feel the hurt associated with the breakdown of a relationship.  That said, responsible parents need to find ways to co-parent harmoniously and with the children front of mind.  These days, there is technology that can assist separated parents with their communication if face-to-face communication proves to be difficult.

If you are a separated parent and having difficulty communicating about your children, here are some helpful apps you might like to trial:

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If you have reached an agreement with your ex-partner regarding arrangements for your children, there are 2 ways that you can document that agreement, specifically:

  1. Parenting Plan; or
  2. Consent Orders.

Both Parenting Plans and Consent Orders document your parenting arrangement and include all relevant matters concerning your children such as where they will live, their communication with each parent, the responsibility each parent will have for the children and outlines a format for parents to communicate about schooling, medical and other major decisions.

However, there are significant differences between the 2 documents. This below table outlines the differences and the advantages and disadvantages of each option.

Consent Orders are completed by parties, lodged with the Court in addition to an Application for Consent Orders, and if accepted by the Court are made into Court Orders.

 Benefits of Consent Orders

  • Binding and enforceable;
  • Can incorporate your property settlement terms if you have also agreed on a division of your assets and liabilities;
  • Unable to be varied or overturned unless there is a significant change in circumstances warranting such an amendment (we note this can also be a disadvantage);
  • There are penalties if a parent does not comply with the Orders (unless they have a reasonable excuse for doing so).

 Disbenefits of Consent Orders

  • Difficult to vary or overturn unless a party can prove that there has been a significant change in circumstances to warrant such an amendment. Accordingly, you must be sure when signing orders that you are able to comply with them and that they will practically work for your children and family circumstances.

Parenting Plans can be drafted in any form that the parties select and are not required to be approved by the Court.

Benefits of Parenting Plans

  • Little to no formality requirements, and does not need to be witnessed;
  • Can be amended and varied to reflect your changing parenting arrangements.

Disbenefits of Parenting Plans

  • Unable to be enforced, noting that it does not have the force of a Court Order, but rather, merely acts as evidence towards the ‘intention’ of the parties;
  • There are no consequences if a parent does not follow the terms of a parenting plan.

We recommend that families with any of the following issues enter into Consent Orders, so that if any issue does arise and becomes contentious in the future, it can quickly be resolved by reference to the Orders and, if necessary, enforcement by the Court:

  • Negative and/or poor parental communication;
  • Domestic violence;
  • Mental health issues;
  • Children with health difficulties;
  • Risk that a parent may relocate with the child;
  • Disputes in relation to the children’s schooling, name, culture, or medical decisions; or
  • Have a history of one or both parents not complying with previously arranged agreements,

We recommend that as soon as you and your spouse have reached an arrangement for your parenting, that you obtain specialist family law advice before signing off on any documentation to ensure that the agreement you have reached is appropriately reflected in your agreement, is an arrangement that will practically work for you and your children, and is enforceable.

It is no secret that communication is the key to a healthy relationship.  However, communication is also key to a healthy (insofar as it can be healthy) separation.  A breakdown in communication during a relationship can lead to separation and a breakdown in communication whilst going through a separation can lead to heightened emotional stress and difficulties being able to resolve your matter.

As such, we have set out below, our 10 top tips for communicating better with your ex in no particular order:

1. Accept the situation and acknowledge that you cannot control the way your ex communicates with you

Though many of us wish we could change things with the wave of a wand, such magic only exists in the realms of Harry Potter and fantasy.  Nobody can control another human being.  This means that nobody can control the manner in which another human being communicates.  Your ex may never change, no matter how much you wish they would.  If you can learn to accept and acknowledge that, then you can learn to ignore any poor communication that is directed at you and focus only on the communication that is important and relevant.

2. Recognise that you can only control how you react to the communication you receive from your ex

Only you are in control of you.  This means you can control what you do and what you say.  Whilst you cannot control how another person communicates with you, you can control how you react to that communication.  If you are receiving poor communication, it will almost never assist the situation to respond with poor communication.

3. Do not threaten, name call or belittle

There are precious few, if any, situations where threats name-calling or belittling will assist anyone to resolve a dispute or improve communication.  Even if the other party’s approach is to do this to you, avoid stooping to this level.  It might feel good in the moment, but ask yourself “will this actually make a difference”?  The answer will almost always be no.

4. Approach communication as if it is a business transaction

Family law is emotional, it deals with people, emotions, children, separation – the hard stuff.  What follows is that communication becomes emotional, it is only natural.  We have found however, that by keeping communication as business like as possible (without sounding like you are aggressively wrapping up a merger and acquisition), this can assist in taking some of the heat out of it and foster a better communicative relationship over time.

5. Do not use your children as leverage

One of the most damaging things that we see is a parent (or both of them) putting their children in the middle of their dispute.  This only damages the children and will only serve to brew bitterness and resentment that leads to damaging and toxic communication.

6. Be patient and give space

It is only natural that things will be raw at the beginning of a separation and maybe even for a significant period of time after.  Be kind to yourself and patient and give yourself and the other party some space.  If it is too difficult to communicate in person initially then send a polite text message or email.

7. Do not flaunt your new partner to either your ex or your children

When parties separate, one or both parties may eventually move on and start a new relationship.  If a new relationship develops quickly, this can be understandably a difficult time for the other party.  The unfortunate result can sometimes be the hurt party reacting bitterly and can have a negative effect on communication.  Introducing a new partner quickly can also be quite hurtful to your children.  As such, accept and acknowledge that a new partner may hurt feelings and do your best to be respectful of that and consider how serious the relationship is before introducing a new partner.

8. Consider getting help from a professional 

There are counsellors, mediators and dispute resolution practitioners who specialise in helping parties going through separation learn to communicate better with one another.  By taking the step of getting help early, you can learn strategies to communicate effectively which may assist in achieving a quick resolution.

9. Do not put down your ex in front of others

Don’t underestimate the power of word of mouth.  If your ex or your children gets wind of you putting your ex down in front of others, this can be quite emotionally damaging and breed bitterness.  If in doubt, take a step back and ask yourself whether a put down will really assist in changing the situation.

10. Consider the importance of body language

So much of communication is non-verbal.  Body language can play an important part in relaying a message, as can the way in which the message is relayed.  As such try to sit with an open stance and relaxed as often sitting closed off may deliver the message in a more aggressive manner than that which it is intended.

The above are not hard and fast rules, but just some tips to consider when communicating with your ex.  If communicating by text or email, after a heated exchange or with a heavy topic, write a reply and do not send it.  Leave it overnight and come back and consider.  The take home message is that communication is key, so any strategies to help you communicate more effectively will be useful and assist in your family law matter.

Should you need any assistance please do not hesitate to contact one of our team members at Southern Waters Legal.

This weekend is Mother’s Day, a day that most children recall with fondness in their later years. Unfortunately, for separated parents it can be a difficult day to navigate. To avoid any stress or conflict on the day, it is a good idea to discuss and coordinate a clear arrangement with your former partner now.

Depending on your individual circumstances, some arrangements may work better than others. For instance, some parents arrange for the children to spend the entirety of the Mother’s Day weekend with their mum and that such arrangement is also implemented for dad on Father’s Day later in the year. Alternatively, other parents agree to share part of the day or weekend with the children if it is important that the children have the opportunity to celebrate their mums and other significant maternal figures in their lives such as their grandmothers or step-mums.

There is no one-size fits all arrangement when it comes to organising special occasions with your former partner. Some helpful tips to ensure your children have the best Mother’s Day include:

  1. Remember it is about the children. Although it is called “Mother’s Day”, the occasion is an opportunity for kids to celebrate their mums just as Father’s Day is an opportunity with kids to celebrate their dads. It is important to not let this day become a competition about “whose day it really is”.
  2. Reduce the potential for conflict. Discuss and organise with your former partner a clear arrangement for the weekend which may include the day, time and location that changeover will occur for the children and who will or will not be present at changeover.
  3. Reciprocate the arrangement for Father’s Day. It is often beneficial to agree that the same arrangement agreed to for Mother’s Day is also implemented for Father’s Day. This way, neither mum or dad feel like they are missing out on celebrating special occasions with their children.
  4. Confirm the arrangement set out in your parenting Orders or parenting plan. If you and your partner have already negotiated arrangements for Mother’s Day and included that agreement in Court Orders or parenting plan, it may be beneficial to confirm the arrangement prior to the weekend to ensure that there is no confusion for you, your former partner or the children.

As a dad, you may also consider helping your children organise a gift for their mum, whether it be as small as some chocolate, a personalised mug or a handmade card. Special occasions can sometimes make children feel caught in the middle between wanting to do something special for one parent without wanting to hurt the feelings of the other parent. By involving yourself in the process of organising a gift for your former partner, it will not only help ease any anxieties that may be experienced by your kids but also extends as a gesture of goodwill which may assist your co-parenting relationship in the future.

If you are experiencing any difficulty negotiating appropriate arrangements for your children with your former partner, then please do not hesitate to contact the family law team at Southern Waters Legal on (02) 9523 5535 to assist you further.

When parents separate, it is very common for one parent to pay child support to the other to assist in financially supporting the children of the relationship.  In lots of circumstances, the payment of child support is collected and administered through the Child Support Agency, an arm of the Department of Human Services in our Federal Government.

The overwhelming majority of parents do the right thing by their children and pay what is required of them, however there are some parents who try their utmost to skip out on their obligations to financially support their children.  Thankfully, they are the exception rather than the rule.  However, this does raise the question, how are parents trying to avoid paying child support and what are the consequences to those payers of child support who try to skip out on their obligations?

How?

Recently, there has been an alarming number of websites and ‘agencies’ pop up that allege to help people avoid paying child support.  Some of the ways in which they propose people do this include:

  • increasing the time the payer of child support spends with the children;
  • actively avoiding seeking pay increases at work, including saying no to overtime;
  • becoming self-employed so that parties can control the income that is declared;
  • donating to charity to increase the deductions in parties’ taxation returns (thereby lowering their income for the purposes of the child support calculations);
  • having more children; and
  • in the most extreme cases, fleeing the country to a non-participating jurisdiction.

The danger of these websites and ‘agencies’ is that the advice they offer is usually not legal advice and ignores the consequences of these actions (in our view it also just ignores the basic morality of providing financial support for children and fails to remind parents that there are no winners in avoiding child support responsibilities and it often is only the children who suffer as a result).

So what are the consequences of skipping out on child support obligations?  And if you are receiving child support and think your former partner is engaging in any of the above conduct, what can you do to ensure your children are receiving the right amount of support?

Consequences

In some cases, the payer of child support will simply just not pay their child support.  But if this happens there are a variety of remedies available to ensure that child support, or arrears of child support are paid.  These include:

  1. asking the Child Support Agency to have child support deducted by the employer directly from the payer’s wages, however this is dependent upon your child support arrangements being registered with the Child Support Agency;
  2. asking the Australian Taxation Office to deduct owed child support from any taxation returns owed to the payer of child support;
  3. asking the Child Support Agency to issue a Departure Prohibition Order.  This means that the Agency can stop people who owe child support from leaving the country and it has been quite effective, there are recent cases where payer’s of child support have been stopped at the airport on their way to some luxury holiday only to be told that they won’t be going anywhere until they pay up.  It’s the Government’s way of saying that if you can afford to go on a holiday, you can afford to support your children as you are legally required to; and
  4. as a last resort, initiating debt recovery proceedings in Court.

In other cases, as mentioned above, payer’s of child support may take some of the above step to minimise or avoid the amount of child support that they are required to pay.  Thankfully there are lots of remedies available to the parties who are owed child support, the two main remedies include:

(a) Entering into a Binding Child Support Agreement whereby you specify and ‘lock in’ your child support arrangements however the downfall with this remedy is that it relies upon the consent of the other party; and

(b) Lodging an application for review with the Child Support Agency on the basis of special circumstances (such as a suspicion that there has been an under-reporting of income).

If you are experiencing difficulties with your child support arrangements, then please do not hesitate to contact one of our experienced team here at Southern Waters Legal so that we can help you navigate the difficulties you are experiencing.

What can you do if your ex-partner has taken your children or kept them for a longer period of time than you agreed? The options available to you depend upon your individual circumstances.

If you have Court Orders
If you have Court Orders that the children live with you and your ex-partner has not returned the children at the ordered time, you should contact the other parent and see if you can reach an agreement about the return of the children.

If you cannot speak to your ex-partner because you don’t have their contact details, they are not answering your calls or because they have gone overseas, or they are simply refusing to return the children to you, you can apply to the Court for a Recovery Order.

A Recovery Order permits the Federal and/or State Police to return the children to you.

I don’t have Court Orders – what can I do?
 If you don’t have Orders because you have just separated, have not agreed upon Orders, have a Parenting Plan instead, or your Court matters are still pending, it is still always best that you try and speak to and reach an agreement with the other parent. If you cannot communicate with your ex-partner or they refuse to negotiate an agreement with you, you can also apply to the Court for a Recovery Order and at the same time you should apply for Parenting Orders for your family moving forward.

My ex-partner has moved away with our children – where are they?
If your partner has moved your children without your approval (even if you have Court Orders that provide for the children to live with your partner and spend time with you), you should attempt to contact your ex-partner, your children or family and friends to try and locate where the children are.

Sometimes it is not always possible to locate your children because your ex-partner isn’t cooperating, you cannot get into contact, no one knows where they are, or because you fear for your own safety and do not want to contact your ex-partner. In such circumstances, you can apply to the Court for a Location Order which will ask an organisation or your ex-partner to provide information to the Court about the location of your children.

If the children have previously been living with you or you have Orders that they live with you, you can also then seek a Recovery Order for the children to be returned to you.

Do I have to go to mediation before Court?
 Normally, before parents go to Court they will need a certificate from a family dispute resolution practitioner stating that they have engaged or at least one party tried to engage in mediation. However, if your children are removed from your care or you do not know where they are, it is more than likely you will not need to obtain a certificate because (depending on your circumstances) your matter will be likely considered to fall into one of the following categories:

  • Your matter is urgent; or
  • You can satisfy the Court that there are reasonable grounds to believe that there has been family violence, child abuse or a risk of either occurring if there was to be a delay; or
  • Your ex-partner has contravened and shown a serious disregard for your Court Orders (if they were made within the last 12 months).

Takeaway tips

  1. Always try and talk to your ex-partner before involving solicitors;
  2. If you cannot communicate with your ex-partner, contact other people like family, friends or your children (if they have their own phones or email address); and
  3. If you cannot reach an agreement, immediately contact a solicitor to assist you in applying for a Recovery Order and/or a Location Order; and
  4. If your children have been retained by your ex-partner it is unlikely that you will have to go to mediation before filing in Court.

If you are experiencing difficulties in your separation you might like to give our experienced family law team at Southern Waters Legal a call on 9523 5535.

What do you think?

We would love to hear your thoughts! Feel free to submit your comments below or comment on our Facebook Page or LinkedIn.

As many of you may know, on and after 31 January 2019 a ‘My Health Record’ will be created unless you choose to opt out. For those of you who haven’t heard about it, a ‘My Health Record’ is an online summary of your key health information, so basically an electronic health care record that will be created for you and your children unless you choose to opt out.  These details will inevitably include sensitive information including confidential health information and address and contact details.

So how does this effect family law clients?

There is an unfortunate and increasing number of parties and children who are at risk of family violence.  In some of these cases, it will be necessary to supress address and contact details from the alleged perpetrator of family violence, so as to try and put in place safeguards to keep those at risk safe.  It appears as though a ‘My Health Record’ could put those safeguards at risk.

Presently, any person with parental responsibility will be able to become an authorised representative for a child’s electronic health record and access information within that record, including location details. The Family Law Act provides that there is a presumption that each parent has parental responsibility unless an exemption or rebuttal applies.  This means in practice that the presumption that each parent should have parental responsibility is only displaced if there is an Order of the Court that grants sole parental responsibility to one parent (thereby effectively removing parental responsibility from the other).

To get an Order for sole parental responsibility usually involves lengthy Court proceedings at a significant emotional and monetary cost.  It is important to note that parental responsibility is entirely separate from the issue of who children live with and spend time with.  So currently, without such an Order, there is a risk that one parent who may be having no time or supervised time with a child due to significant risk issues, or even a parent the subject of an Apprehended Domestic Violence Order prohibiting them from coming within 100 metres of a child, still has parental responsibility for the purposes of accessing a ‘My Health Record’.

These risks were raised late last year with the Australian Digital Health Agency (ADHA) who will govern the ‘My Health Record’ and it was agreed that a parent can be excluded from being an authorised representative if it can be shown that by being an authorised representative it would put the healthcare recipient’s life, health or safety at risk.  However, it is entirely unclear in practice what would actually satisfy the ADHA so when we put our lawyers’ hat on, it remains a risk.  This also places a burden on parties already going through a horrible and stressful time to prove that they are at risk, which is probably something those parties really do not want to be worried about.

Until such time as the concerns about the ‘My Health Record’ are cleared up and the lawyers have all stopped fighting about it, if you believe that your safety or the safety of your child or children may be at risk then you should immediately opt out of the ‘My Health Record’. You can opt out at any time, however from 31 January 2019 a record will have already been created. So opting out before this date means no online record.

If you have concerns about the ‘My Health Record’ and what it means for you, please do not hesitate to contact one of our team here at Southern Waters Legal on (02) 9523 5535.

What do you think?

We would love to hear your thoughts! Feel free to submit your comments below or comment on our Facebook Page or LinkedIn.

Christmas is an exciting time of year, one filled with love and laughter, but also quite a hectic time of year getting presents ready for family.

Finishing off jobs at work can cause emotions to rise and the stress that comes with it. So can you imagine what would happen in the event that your work involved not only ensuring that everything was done by the strict deadline of Christmas, but also fulfilling the wishes of billions of people around the world?

Recently we found out when we had our new client Mrs Claus come in to see us.

You see, Mr and Mrs Claus generally have a quiet and simple life during the year, but December is absolutely manic for them and finally, in 2018, something snapped for Mrs Claus and she’d decided she’d had enough!

Santa has been working triple-double overtime and Mrs Claus has not been able to see him. With Mrs Claus permission, we’ll talk you through the considerations that were taken into account when Mrs Claus sat down with us for family law advice.

Property Settlement

Whilst everyone knows Santa has a naughty and nice list, his behavior in relation to his family law settlement makes me want to consider whether he actually sits on the naughty list himself.

As is often the case with a property settlement, exact values are not known and parties need to estimate them. For example, when you have a property and one of you want to keep it, you are never going to sell it just to find out the exact value. Accordingly, you will need to agree on a value. This is where things came a bit unstuck with Santa and Mrs Claus. You see, Santa believes his vast property empire at the North Pole and small subsidiaries in each shopping Centre throughout the world that he holds and owns in December each year are worth nothing. Mrs Claus obviously begs to differ. He is one of the largest landholders in the world. Santa’s property portfolio is vast and substantial. Accordingly, we have had to ask a Valuer to value the landholdings in the North Pole and associated areas. Now whilst it may not be prime farming land, or for many people, even considered to be habitable, it is actually home to thousands of elves and a number of reindeer. As such, it does provide substantial value. The same thing applies to Santa’s Toy Operation. Now whilst kids do not pay for the toys they receive, Santa does not do everything of his own accord. Out of complete goodwill, Santa is actually paid a licensing fee to create the toys and makes a healthy profit. He normally takes off for six months each year and goes to a little known Caribbean Island to relax with Mrs Claus.

Santa’s Business

Again, as is often the case, Santa believes that his business is worth nothing without him and that it is not a transferable business and therefore, the value of the business should be considered to be zero. With profits in the hundreds of millions of dollars each year and turn over in the billions of dollars, this is obviously not the case. Santa is running quite a substantial business. It unfortunately looks as though we will be going to Court on this one, but we contend that the Easter Bunny or Mickey Mouse would easily be able to fulfill the role of Santa, if Santa was to no longer at work.

In accordance with the Family Law Act, it will be essential for us to do the following to properly advise as to an appropriate %-split in any property settlement to Mrs Claus:

  1. Identify each of the assets and attribute a value to them by exchanging financial information and obtaining valuations where necessary;
  2. Assess both Mr & Mrs Claus’ contributions to their relationship, both at the commencement and throughout;
  3. Assess both Mr and Mrs Claus’ future needs, such as, whether Mrs Claus will have to look after the reindeer after they separate; and
  4. Assess whether the proposed split is just and equitable in light of their circumstances.

Parental Arrangements

Rudolf

Often the financial aspects are difficult to resolve, but they get resolved at the end of the day and parties move on. What is a more pressing issue and one that needs to be managed and dealt with for a lot longer and continuously is who will look after the children of the relationship, where they live and how often each party gets to see them.

Now unfortunately Santa and Mrs Claus were unable to have children, but they do have their reindeer, which they treat as children. Those reindeer, named Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donner, and Blitzen and Rudolph the Red-Nosed Reindeer, were vitally important to both Santa and Mrs Claus and this is where we hit a real stumbling block. You see Santa wanted them to be with him at all times, but realistically, he uses their services just once a year on Christmas Eve and whilst he had a rapport with them, did not spend a lot of time with them. Now, as you can appreciate, while Santa was so busy working, Mrs Claus had to find other things to do and she found comfort in the reindeers. Accordingly, she wanted them to spend all of their time with her. Now this argument could have gone on and on, however we suggested to both Mrs Claus and Santa that they were going to be parents not partners, in relation to the reindeer and that they would need to consider what is in the best interest of the reindeer. Now obviously the reindeer love both Santa and Mrs Claus and wanted a resolution to be reached where they could each see them. Fortunately, it looks like we will be able to arrange this and the reindeer might even be able to go on a trip to that Caribbean Island for a couple of months a year and relax.

In any event, I’ve told Mrs. Claus that before running off to Court about her time with the Reindeer, she’ll need to head off to mediation with Santa to try and reach an agreement.

With all this resolved by Southern Waters Legal in the great Christmas rush that exists around family law and Christmas, Christmas can continue for 2018. Whist at this stage it is only a trial separation and we are hopeful that Santa can obtain a healthier work/life balance and Mrs Claus can recognise the need and desire for Santa at that particular month of the year. The resolution we have reached means that everyone can have a very merry, Merry Christmas.

Santa Claus - Divorce & Separation

It’s in our nature to look out for our loved ones and one of the most valuable assets you will ever ‘own’ is your education.

So it’s not surprising that we receive a number of calls from people wishing to somehow pay for the future expenses of their child or grandchild’s education, in the event of their passing.

Unlike cash, cars or material ‘things’, the gift of education is one that could make a profound difference in your grandchild’s life.

So how can you ensure they’ll have their costs covered – rain, hail or shine?

The answer is rather simple – you set up an education fund for your grandchildren in your Will, through the vehicle of a Testamentary Trust.

Testamentary Trusts created by a Will not only facilitate the provision of your grandchildren’s education fund; they also offer significant tax savings on your inheritance. A win all round!

What is Testamentary Trust?

A Testamentary Trust is a Trust established by a Will. It only comes into effect after the death of the Will-maker.

Can I ensure that the funds can only be used for education or the benefit of my grandkids?

Yes – You tell us how you would like the funds in the education fund paid and we can accommodate this when drafting your Will.

What are the benefits?

There are lots of benefits having a Testamentary Trust Will:

  • Significant tax benefits and savings – at time tens of thousands of dollars can be saved!
  • Flexibility for beneficiaries – each grandchild is different!
  • Asset protection – Protect your inheritance from unwanted beneficiaries or claims.

It is complicated?

We will assist you to understand and draft your Testamentary Trust Will. That is what we are here for! Many of our clients who complete their Testamentary Trust Will are surprised by the simplicity of the process and delighted with the resulting peace-of-mind.

How do I start?

Contact our Estate Planning solicitors, who will be more than happy to clarify your situation and the next steps.