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In our Family Law video series we discuss the common questions we get asked by our clients. In this video Georgia and Leona discuss Collaborative family law and if this is the right approach for your matter.

In our Family Law video series we discuss the common questions we get asked by our clients. In this video Georgia and Leona discuss avoiding the court process in a family law matter.

If you are going through the process of Separation and Divorce and you don’t want to end up in court, what can you do? what are your options?

In our Family Law video series we discuss the common questions we get asked by our clients. In this video Georgia and Leona discuss how does divorce work and is this the ‘messy’ part of the process?

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.

Going through a separation can be one of the most challenging times a person will experience.  It is challenging both emotionally and financially and the challenges faced by parties going through a separation can sometimes lead to poor decision-making.  In our experience, there are some really common mistakes that parties make when going through their separation. Here are our top 5:

1.          Using family and friends for legal advice: 

One of the most common things we hear from clients is something along the lines of “My friend got divorced and they got this so they told me I can get that too”.  Listening to what happened to your friend or family member who went through a separation can be one of the most common mistakes you can make as your expectations may be for an entirely unrealistic outcome in your circumstances.

Each matter is unique, with its own set of facts and circumstances.  Those facts and circumstances will have the biggest impact upon the outcome of a matter as will other variables such as how a matter is resolved.  Just because your friend or family member got something does not mean that you will get it too.  You are paying your lawyer good money for quality legal advice that has come about as a result of rigorous training and a wealth of experience and you should listen to that advice as opposed to a colleague at morning tea!

2.          Becoming entrenched in a position: 

Going through a separation is expensive, even if you manage to sort out your issues with little legal intervention.  This is because there is a division of assets, so everyone is already walking away with less.

In some matters it is tempting for parties to want to chase every single rabbit down every single hole but this often leads parties to become entrenched in their position and forget the bigger picture.  So often, we see clients who want to “stand firm” or “make them accountable” however, the family law process is the wrong place to look for vindication; the family law process is best used to try and look for a resolution.  As such, it can be very important to approach the matter at all times with an open mind, considering the commercial reality and looking to settle as early as possible.

3.          Telling your lawyer only half of the story and not doing your homework: 

A lawyer can only prepare a client’s case so far and on the instructions they are provided.  If you only tell your lawyer half the story, then your case will only be prepared half the way.  Invariably the whole story often always comes out towards the end of a matter, particularly in Court proceedings.  One of the worst things you can do is not be upfront about everything with your lawyer because then your lawyer does not have the ability to try and get in front of it.  This can cause issues of credibility, which can significantly negatively impact your end result.

Similarly, if you don’t do your homework (yes there will be homework) then this can severely inhibit your lawyer’s ability to prepare your case because your lawyer will not have the information available to progress your matter.

4.          Involving the children: 

It is unfortunately very common for parents to involve their children in their separation unnecessarily.  This can be a conscious and an unconscious decision.  Notwithstanding whether it is a conscious or unconscious decision, involving your children in your separation is a big mistake and should be avoided at all costs.

Firstly, it is quite damaging to children to be involved in their parent’s separation, regardless of the child’s age.  Children are already adjusting to a massive change in their family circumstances and to then deal with the stress of being involved in their parent’s separation and any acrimony does absolutely nothing to protect a child’s interests.

Secondly, involving the children in your dispute can lead to the Court holding you in a very negative light which can have a negative impact upon your outcome.

5.          Posting on social media: 

In this age of social media and instant technology, it can be all too tempting to vent your frustrations and seek support from your social media friends.  This is a very big mistake.  Once something is on the Internet, there is a digital footprint and it can be accessed and used against you.  To put it really simply, posting about your family law matter on social media or the Internet can be an absolute strategic disaster.

There have been numerous cases in the Family Court whereby parties’ social media posts have been accessed by the other party and used against the poster in their proceedings.  These posts are often viewed by the Family Court as being indicative of a total lack of insight into behaviour and can result it an unfavourable outcome.  If in doubt, put the phone away and step away from the computer.

It is only natural that at some point, emotions may get the best of you when going through a separation.  However, if you can avoid making any of the above mistakes, then you will significantly assist in the proper preparation of your case.

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.