There has been enormous outcry in recent weeks as a result of the media reporting that some child psychologists and parenting experts are of the view that some young children risk “brain damage” by sleeping over at Dad’s place. The media’s summation is both flippant and dangerous, but importantly it highlights a body of research which should be given some consideration by separated parents (and in some respects every parent).

The views arise from research undertaken around “attachment theory”, the idea that the optimal physical and emotional development of a young child relies upon a solid and reliable attachment to a primary caregiver.

The complexity of the theory is beyond this forum, but in very general terms the theorists maintain that if an attachment figure (and there can be more than one) is not readily available to a child, the child lacks security and can form internal coping mechanisms which can detract from their ordinary, and optimal emotional and physical development. Anxiety and insecurity in this regard is not always reflected in overt distress, but can also be reflected in certain behaviours including emotional withdrawal and regression.

So what relevance does the research and very existence of the theory have to a family law lawyer? The Court is increasingly, and properly in my view, influenced by psychological opinion relevant to what would be a optimal care arrangement for a particular child involved in a dispute, and that opinion, in turn, is heavily influenced by psychological and developmental research.

Like most research, there is enormous danger in the misapplication of the theory. That said, the research around attachment theory will, in many instances, facilitate insight and understanding into why young children react in the way that they do to the absence of a parent. This is not to say that a child is damaged every time they exhibit anxiety and distress around transitioning between separated parents, but care does need to be taken to avoid a child developing serious insecurity, anxiety, and/or behavioural regression.

Without doubt, the best course is for separated parents to work collaboratively with a psychologist who is experienced in this area and seek specific advice in relation to a child’s unique needs. Whilst there will be some infant children who are attached securely to multiple adults and able to move safely and securely between them, there will be children who cannot do so, and should not be endangered.

Family law proceedings can be complex, with answers sometimes difficult to come by. Compounding this problem is the fact that everyone has an opinion as to how family law “works” despite the absence of their qualifications, and the media and fictional court room dramas provide no greater clarity.

As such we have compiled a quick list of some commonly asked questions in order to dispel some myths, and to provide an understanding of the family law process.

Family law proceedings are heard by a judge and a jury.
Family law proceedings are heard before a judge and a judge alone. There are no jury trials in the family law court system.
Family law proceedings are public.
Courts are not only places that must do justice, but they must also be seen by the public to do justice, and do so independently. To this end, almost all proceedings before a court in Australia are open to the public. Family law proceedings are held in open court unless the court orders otherwise. However, it is considered an offence to disseminate to the public the specific names of parties involved in family law proceedings.
Judgements are published on the family law courts website, as well as on free public databases such as AustLII and paid databases. Judgments are anonymised, which involves the removal of all identifying information.
I have to go to court to get divorced.
The court plays a role in all divorces, but depending on your circumstances the level of involvement may vary significantly.
To apply for divorce, an application must be made and lodged with the courts. These applications can be lodged personally with the court, or online via the Commonwealth Courts Portal.
If you are making an application for divorce and the parties to the marriage have no children under the age of 18, you do not have to attend the court hearing.
If you are making a joint application for divorce, and the parties to the marriage have a child or children under the age of 18, you do not have to attend the hearing.
If you are making a sole application for divorce and you have a child or children under the age of 18, you must attend the hearing. The other party is only required to attend if they have lodged a Response to Divorce and seek to oppose the application.
Please note: a divorce hearing will not deal with property settlement or with child custody issues. Those issues will be dealt with separately.
I have to go to court to reach a property settlement.
If an agreement is reached and encapsulated in a Binding Financial Agreement or Application for Consent Order then no attendance at Court is required.
If no agreement can be reached, you will be required to make an application to the Court.
I don’t have to pay any child support, as I do not see my children.
A person has a financial obligation to provide for their child or children, regardless of the amount of time spent with them.
Only a child’s parents can seek an order in relation to the time that a child spends with them
Parenting orders are orders made by the court that set out care arrangements for a child. Parenting orders are normally applied for by a child’s parents, however any person concerned with the care, welfare and development of the child may apply.
Property will be divided in a 50/50 split
There is no set formula for the court to use when determining a property settlement. Property settlement splits are determined on a case-by-case basis with consideration given to a series of complex considerations.
You can apply for a divorce and be granted one within a week/fortnight/month.
To qualify for divorce in Australia, parties must satisfy the court that there is no reasonable likelihood of resuming married life. To do so, parties must have lived separately for at least 12 months. Further requirements also exist for newly married couples seeking a divorce.
During the period of separation required for a divorce, parties cannot see each other or live in the same house.
Separation can take place under one roof in certain cases.
A de facto relationship only occurs if we both declare we are in one.
A de facto relationship for the purposes of the Family Law Act requires that both parties live together in a relationship on a genuine domestic basis. Parties are not required to “declare” their relationship as de facto for it to be so.
My lawyer can provide me with all the taxation and financial advice I will require.
Your family lawyer is not in the best position to advise you in relation to complex issues of taxation and financial planning. Best Wilson Buckley Family Law works closely with accountants and financial planners to ensure the best possible combination of legal and financial advice.

Where a child is born to a de facto or married couple by way of artificial conception reliant upon a third party donor, the question of parentage becomes inherently more complex. Biologically the child is the product of the third party donor, and one of the intended parents, but the clear intention of the process is to render both intended parents, exactly that, parents of the conceived child. The law now recognizes this intention in rendering the intended parents `parents’ at law, but this does not necessarily prohibit a third party donor from securing Orders of a parental nature.

The potential complexity (and heartbreak) of these arrangements is no more evident than in Reiby & Meadowbank & Anor [2013] FCCA 2040.

To use a recent Federal Circuit case as an example, a child (X) was born to the Respondents (Respondent 1 & 2), by artificial conception. The child was aged 2 at the date of the decision of Judge Small. The Applicant provided genetic material for use during the artificial conception process. The Respondents were in a de facto lesbian relationship at the time of the procedure, and the Applicant consented to the procedure.

The Applicant and Respondents had discussed, in general terms, the conception and arrangements for the child prior to the procedure on multiple occasions prior to the birth of X. However it was not until 8 months after the procedure had been undertaken that the parties attended the offices of a lawyer. After the meeting, the Applicant had his solicitors draft a Minute of Consent Order and a Statement of Agreed Facts, with the ultimate goal of applying to the Court for Parenting Orders following the birth of the child. This however surprised the Respondents, as they believed that no solid agreement had been reached at the meeting.

Not long after this, the Applicant filed an Initiating Application with the Court. Throughout the child’s early months X still spent regular and frequent time with the Applicant at the Respondents’ home, and on occasion at his home.

In the proceedings, the Applicant sought time with X. The Respondents sought that they share parental responsibility of the child (to the exclusion of the Applicant), and that the time that the Applicant can spend with X be limited, and that the Applicant be regularly drug tested.

The Law

Section 60H of the Family Law Act clearly states that where a child is born to a woman as a result of artificial conception that uses a third party genetic donor whilst the woman is married to, or in a de facto relationship with, another person who is the intended parent, the child born as a result is deemed to be the child of the woman and her partner.

Whilst X’s parents are the Respondents, that does not exclude the Applicant from applying for parenting orders, as a parenting order, per section 64C, may be made in favour of  “a parent of a child or some other person”.

Section 61DA requires that in the making of a parenting order, the court has to apply a presumption in the interests of shared parental responsibility that is to be vested in the child’s parents. This presumption applies only the Respondents, and not to the Applicant, who by virtue of section 60H, is not a parent of X.

The Applicant sought a parenting order under section 65C(c), as a person concerned with the care, welfare or development of a child. The Court agreed that the Applicant was indeed a person concerned with the care, welfare and development of X, rather than a parent.

The Applicant’s application sought a graduated regime that would lead to a reasonably significant amount of time being spent with him, some five nights per fortnight. This regime would have a considerable effect on X’s relationship with her parents. The Respondents wished for the Applicant to have an ongoing relationship with X, but not to the extent that the Applicant proposed. The Court noted that the Applicant is “nothing if not a committed father”, as he continued to pay child support (where he was not obliged to).

In its final orders, the Court expressed that it wished for X to have a genuine and meaningful relationship with the Applicant, but for that not to negatively impact the primary family unit of the Respondents.

The final orders allowed the Applicant to spend time with X for a few hours over the period of 2 days per week. The orders are made in contemplation of X’s continued development, and include orders for when X begins school, at which point the Applicant is granted less continual time, but is given contact over some weekends, and school holidays.

The Respondents retain sole parental responsibility over X. The Applicant was also ordered to cease the use of illicit drugs within 24 hours of, and during the care of X, and to refrain from the consumption of alcohol within 12 hours of X being in his care. Interestingly, and despite not holding parent status at law, it was directed that the Applicant be named as X’s father on medical and educational forms, and be at liberty to attend events and functions that a family member would normally attend. The Court also directed that doctors and other health practitioners should be authorised by the Respondents to allow the Applicant to speak to them with regards to X’s health.

Unfortunately, we see a lot of clients as their second or third family lawyers. Usually these clients have spent a significant amount of money, and have yet to really either progress the matter or they’re at a loss as to what is going on. As a result they are often disenchanted, a little wary and sometimes exhausted. Like all professions, there are good family lawyers and there are bad family lawyers. Here are my top 10 tips to help you avoid the good from the bad:

Avoid lawyers who claim to be both fierce litigators and collaborative negotiators. You cannot be both. Some firms do however offer sub-specialists such as negotiators, parenting litigators, experts in business/commercial family law etc which allows you to choose the lawyer to match your needs and your style.
Choose a lawyer or law firm that specialises in family law. Practising in this jurisdiction requires an absolute commitment to family law. As a hot political topic, there is continued pressure on government and legislators from various lobby groups to make changes to the legislation and regulations relating to child support, children’s issues, prenuptial and cohabitation agreements, superannuation, tax, the involvement of third parties and there are frequent changes in the Courts approach from new case law. Also, in my view, part of the expertise you are “buying” must necessarily include knowledge of Court process, the most effective mediators, the best counsellors, the premier family law barristers, and best business valuers. That expertise must further include an intimate understanding of the judges of the Court, their preferences, and the means by which the best outcomes are achieved before them.
Check the admission date of your lawyer and ask the question as to how long have they specialised in family law. Often those lawyers claiming to have experience in fact have very little.
Beware of the lawyer that talks about “winning”. I believe that you win when you achieve the most optimal outcome in the circumstances. Often when one party feels that they have “lost” as a result of a legal process, it will lead to immeasurable conflict for children being co-parented for years to come. In my mind, that conflict and the associated risk is not a “win”.
Talk to your lawyer on the phone before making an appointment to see them. Make sure you are comfortable with their style. Are they easily able to be understood?
Don’t be afraid to look for another lawyer or ask for another lawyer at the same firm (if possible) after your initial meeting. A good relationship with your family lawyer is vital.
Expect your lawyer to see red flags around corporate and trust practice, taxation issues and less than advantageous financial outcomes. Whilst arguably the domain of a skilled accountant and financial advisor, you should at the very least expect your lawyer to be able to read and understand a set of financial statements and know when further advice of that nature is needed.
Look for firms that provide a few points of contact at the firm who have a good working knowledge of you and your matter. There is nothing more frustrating than not having important questions answered when you need to them or having your matter left stagnating while “your lawyer” is on leave.
You wouldn’t see a doctor without a referral and a strong recommendation – adopt the same approach with your family lawyer. Ask for a recommendation from those people and professionals in whose judgment you trust. The best marketers may not be the best family lawyers.
Whilst it should never be used as the sole basis for a decision as to which family lawyer you use, compare your lawyers charge out rates with other specialist family lawyers. You need to try to seek a balance. Too many people go with the cheaper hourly rate not thinking that what a specialist family lawyer can do in 3 or 4 hours may take the “cheaper by the hour” non specialist 8 or 10 hours to do. We see this often. On the other hand, very high charge out rates (over $500 per hour) and you may not be able to progress your case very far before you run out of money. Often firms with family law sections are competing alongside the firm’s other areas of law such as insurance, property, construction and other corporate and commercial areas. This places significant pressure on family lawyers to have the same charge out rates as their colleagues in the same firm.

To many couples, the family pet is almost as important as their children. To others, the family pet is the closest to a child that they have. To a few, they are tools to be used to gain benefit from their ex-partner. To the law, they are property.

Some countries have adopted procedures similar to those for parenting disputes when it comes to the issue of custody and care of a family pet, but not Australia. Whilst some animals, such as those for breeding, may constitute a business asset, companion animals (pets) are essentially personal property, like a television or an album of photographs.

In many aspects a pet is far closer to a person than it is property, pets have names, personalities, rights and can be greatly affected by separation. The unfortunate reality remains, however, that for the purposes of separation they are dealt with as property by the Courts.

Pets Post-Separation

The Courts

As property, a pet is generally given to one party in a settlement. Like any other chattel, one party is expected to take possession, and the other party is expected to relinquish any interest they have in the property in return for compensation (in most instances). Alternatively should neither party want to retain the property, both parties will liquidate their interests in the property, and the profit retained will be divided in a manner the Court deems appropriate.

The Court system will not treat a family pet like a child. It will not award a parenting order for pets, and will not seek to enforce access. The Court is not required to identify the best interests of the pet.

In some circumstances, Courts have ordered that pets accompany a child during visits between parents’ houses. However the order is made with the best interests of the child in mind, and is not an order that represents any sort of shared care arrangement in regards to the pet.

Best Practice

Parties that want a shared care arrangement for family pets may do so by agreement. Such an agreement will often be drafted in a similar manner as a parenting agreement, with arrangements made for custody and care. Parties may also wish to name particular vets to use, training schools to attend and even agree to use a certain type of pet food.

Legal Advice

Should you require any advice in regards to any aspect of family law, you can contact Best Wilson Buckley Family Law Toowoomba on (07) 4639 0000 or Best Wilson Buckley Family Law Brisbane on (07) 3210 0281.

Picking a High School can be a difficult decision for most parents, but post-separation this process can be particularly difficult.

Regardless of a separation, parents will need to consider factors such as a school’s academic performance and support, sporting facilities and sporting history, against artistic focus, social aspects and location. The decision about a child’s school is a joint decision and where an agreement cannot be reached, the Court will need to be involved and an Order. The Court is a third party decision maker and the Judge will take the decision and choice away from the parents.

In a case decided last year by the Federal Circuit Court of Australia, Judge Coakes was faced with the difficult, yet all too common problem of deciding a school for X, a 12-year boy. X and his parents identified as Aboriginal, and X had previously shown a strong affiliation and love for his culture. The case takes into account not only differing opinions from both parents, but also the potential significance of cultural and religious factors in making these decisions.

In this case, both parents proposed different schools for differing reasons. The Father wanted a public school that had a number of Aboriginal students and significant cultural activities. The mother wanted a private college that, whilst religious, also reported 25% of enrolments coming from families that do not identify with any particular religion. The college offered less cultural support, but still fostered Aboriginal culture, and taught above and beyond the required curriculum in relation to Aboriginal history and culture. The college also offered significant facilities in the areas of maths, science and computers, areas that X had previously enjoyed and excelled at.

What Does the Court Consider?
In making this decision and any other parenting decision, the Court will have regard to the best interest of the child.

Primary considerations identified by the Court in this matter were, the benefit of the child having a meaningful relationship with both parents, and protecting the child from physical or psychological harm.

The Court also considered the rights of the child to maintain a connection with their culture, as well as having the support to explore and develop appreciation for their culture. This consideration is one of many the Court is required to consider in determining what is in a particular child’s best interest. Each parenting dispute is different and the Court is required to consider the individual circumstances of each matter, weighing up the evidence to arrive at an order that is in that child’s best interest.

The Courts Decision
Ultimately the court decided that the college was the best place for X. The Court identified that X’s culture is relevant, but not determinative in the matter, and was satisfied that both schools offered sufficient cultural opportunities. It was determined that X is best served attending the college, due to the reasons outlined by the mother, and also having regard to the fact that the mother is the primary carer, and will have a greater responsibility for X’s day-to-day attendance at school.

The Court noted that X’s father is able to foster X’s cultural heritage and assist X in any conflict that may arise in matters taught at the college.

Conclusion

It is unfortunately the case that one parent will believe that the other parent has “won” and they have “lost” whenever the Court is asked to make a determination. In reality, neither parent is the “winner”. The costs associated with litigation, both emotional and financial, ensure that both parents suffer the “loss”. Litigation is often a matter of ‘principle’ and separated parents lose the control they once had over decisions for their children.

It is to that end that negotiation, collaborative law, mediation, arbitration and family dispute resolution can offer parents a way of ‘meeting halfway’ on an issue and avoiding the courtroom. Best Wilson Buckley has published a guide on these methods of dispute resolution that can be found here.

Take control of the decisions you make for your children.

Legal Advice
Best Wilson Buckley Family Law has significant experience in all aspects of separation, including parenting matters, child support issues, property settlements and financial agreements. Our extensive expertise allows us to act on behalf of husbands, wives, mothers, fathers, grandparents, sibling, step-parents and business partners and creditors.

Call Best Wilson Buckley Family Law Toowoomba on (07) 4639 0000 or Best Wilson Buckley Family Brisbane on (07) 3210 0281.

It is not uncommon for couples when separating to engage in evidence gathering exercises. Parties will often use Facebook and other social media such as Twitter or Google+ in order to gather information such as the location of the other party, their habits, the identity of associates, current relationship status and other activities. On occasion parties will ‘step it up a notch’ and hire an investigator, or secretly record or tape conversations or interactions with the other party. The ultimate goal of these endeavours is generally to use them in court as evidence to support a claim. We consider steps of this nature to be extreme, and often recommended only in very unique cases. The very act of these investigations can often be counter-productive in parenting cases being utilised by the Court as evidence of a parent’s failure to positively support the other parent in their interaction with a child.

It is important to be aware that often potential “evidence” will not be relevant or admissible, no matter how ‘juicy’ it may be. Furthermore, some evidence gathering techniques, whilst producing evidence that is potentially relevant, may do so in a way that is illegal.

In a current case in New South Wales, the Family Court of Australia heard an application by one party requesting that audio recordings and photographs be provided to an expert family report writer in the proceedings. In that case the photographs and recordings appeared to indicate violent behaviour by one party towards both the other parent and a child prior to separation. The other party contended that the tapes only provided parts of the conversation and gave a misleading impression of events surrounding the comments made and behaviour on the tapes.

One issue with the recordings was that they were, prima facie, illegally obtained. Legislation enacted in New South Wales rendered the recordings illegal, and also made the publication of the recordings illegal. Ultimately the Court determined that it was inappropriate to admit the recordings and photographs to be put before the Family Report writer. A number of reasons, including the prima facie illegality of the recordings and the yet to be determined weight, integrity and admissibility of the material were behind the decision. It will be determined at a later date whether the material is admissible, in what manner is will be used and what weight will be given to it in the proceedings that follow.

We would encourage you to be aware of the law that impacts on your evidence gathering activities, and be conscious that the very act of collecting evidence may not reflect positively on you.

This isn’t to say however, that all materials gathered by parties are a useless or risky endeavour. In many situations information gathered by parties can be helpful in resolving the conflict before the Court. Alternatively information gathered may give rise to one party seeking further information elsewhere that may assist the Court in making a decision. For example, a Facebook post that states that one party was somewhere other than they claim to be or with someone they shouldn’t have been with, in violation of a parenting order, may or may not be enough evidence in itself, but could give rise to further investigations being undertaken to determine and gather admissible evidence.

The best person to advise you on situations such as these, and other family court matters, is a family law specialist in Toowoomb and Brisbane. Best Wilson Buckley Family Law Toowoomba and Brisbane are family lawyers who offer specialist knowledge, compassion and commitment in a timely manner.

Call Best Wilson Buckley Family Law Toowoomba on (07) 4639 0000 or Best Wilson Buckley Family Law Brisbane on (07) 3210 0281.

There are times, believe it or not, when some people can work out their property settlement issues amicably and reach an agreement without the need to go to court.

It is important to ensure that any property settlement that you and your spouse agree to is properly documented to ensure that your financial relationship is finalised and all of the loose ends are tidied up. If this does not happen, there could be some serious consequences in the future.

I often recount to clients the circumstances of a previous client who, in attempting to resolve his property settlement matters with his former partner, decided to do an informal property settlement to save the costs of getting solicitors involved. In hindsight, this became a very costly mistake – a million dollar mistake.

On separating from his wife, the former matrimonial home was sold and the proceeds of sale went to the wife. My client retained his business, which at the time of separation was valued at around the same amount as the proceeds of sale of the house. My client thought that this was a fair division of the parties property. He kept his business and went about building it up.

However, the division of property between the husband and the wife was never formally documented. My client went on to form a new relationship some years later and decided to get married. However, the parties had never divorced.

The Family Law Act provides that property settlement proceedings can be brought any time after parties separate and for a period of one year after a divorce order is made.

To enable my client to get married again, he made an application for divorce. Soon after being served with the application for divorce, the wife obtained legal advice about her position. As no formal property settlement had occurred, she made an application for a property settlement some 15 years after the parties had gone their separate ways.

To cut a long story short, my client’s business had grown from a small business in Queensland to a multi-national business with diverse interests. The mistake of not properly documenting the property settlement meant that my client’s soon to be former wife had the ability to have a “second bite” at what was now a very juicy cherry.

It is important to ensure that your property settlement is properly documented by way of a Consent Order or a Financial Agreement. This has the effect of severing the financial relationship between you and for former partner so that you can go about rebuilding or consolidating your financial position after a relationship breakdown.

It can sometimes be the last thing on your mind when you have separated, updating your estate planning documents to reflect the changes in your life or relationship.

However, updating your Will, Power of Attorney and Death Benefit Nominations for your superannuation policies is an important part of moving forward with your life and should not be put into the ‘too hard basket’.

One of the first questions we will ask during an initial attendance is whether you have current estate planning documents. The reason for doing this is simple, you might want to update how your assets will be distributed in the event of your untimely demise.

If you have divorced your former spouse, certain parts of Wills and Powers of Attorney will automatically become invalid.

Binding Death Benefit nominations under superannuation entitlements can last for up to three years and can mean that superannuation and insurance policies will be paid directly to nominated beneficiaries rather than into your estate.

As part of finalising your property settlement, you may which to set up structures to hold property for taxation or asset protection purposes. It is important to consider how this might impact upon your estate planning in the future. We regularly work with financial planners and accountants to ensure that you can utilise appropriate structures which can fit into your estate planning needs in the future.

Although we do not prepare Wills and Powers of Attorney, we are happy to work your professional advisors to ensure that an appropriate referral is provided and that your particular estate planning needs are properly considered.

On Wednesday, the House of Representatives Standing Committee on Social Policy and Legal Affairs made the announcement that it has commenced an inquiry into the Child Support Program.  The Inquiry was prompted by a referral from the Minister for Social Services Kevin Andrews on 27 March 2014.

Federal Member for Dawson, the Hon George Christensen MP will chair the inquiry.  The inquiry is still in its early stages, but will focus on:

Dealing with the under and over payment of child support;
Enforcement options;
Flexibility, and options for children in conflict situations;
How child support fits with mediation and inside Family Assistance frameworks; and
How the child support system and the Family Court interact.

The inquiry will hold hearings in multiple cities, and you can express your interest in attending a hearing on the website. At the hearing, individuals will be given the chance to make short statements to the Committee, provided they fall within the terms of reference for the inquiry.

Stakeholder groups and experts have until Friday 13 June 2013 to make any submissions that address the terms of reference of the committee.

The Committee has also set up an online questionnaire for individuals to share their experiences with the Committee. The questionnaire requires up to 20 minutes and you must be over 18 to complete it.

Further information can be found here

A direct link to the questionnaire can be found here

To express interest in attending a community statement session, fill out the form here.

 

The law recognises that often the following separation there is a need for a couple to remain resident `under one roof’. Despite the continued residence, it is still possible to pursue a divorce application which relies on evidence of more than one (1) year of separation, which has included a period of continued cohabitation. The Court will however require further information than it would if both parties had lived separately for at least 12 months. The Court will have to be satisfied that the requirements for divorce are met, namely that there was a period of 12 months that both parties lived separately from each other, and that there is no reasonable likelihood of resuming married life.

Proving separation where both parties reside in the same residence is often done by presenting to the court evidence of:

A change in sleeping arrangements;
A reduction in shared activities;
A decline in shared household duties;
The dividing of shared financial accounts;
Any notifications made to Government Departments or Institutions;
The notification of family and friends of your separation.

Example: A and B separate, but neither can afford to leave the matrimonial home. B moves into the spare room. A and B also no longer see each other outside of incidental meetings in the vicinity of the house. A and B also do their own laundry, ironing and prepare their own meals. Their friends and family know of their separation, and B has created a separate bank account that B now uses for income and expenditure. A Child Support Assessment has issued and A has advised Centrelink that she has separated from B.

Giving It Another Go
Any attempt to resume the marital relationship for a period of up to 3 months will not force the parties to start again when it comes to the 12-month period requirement. It can sometimes be difficult to gauge when a relationship officially begins again, but factors such as those mentioned above can play a significant factor in determining when the relationship resumed and for how long.

Example: A and B have decided to separate. After living separately for 6 months, A and B decide that perhaps they should try to reconcile their relationship. A and B resume their relationship but separate again after 2 months. A and B do not have to begin their 12 months separation anew, but may pick up where they left off 2 months ago. This means that A and B must continue to live separately for another 6 months before they will meet the 12 month requirement.

Seek Legal Advice

For further advice on the legal requirements of divorce and the technicalities surrounding separation and living arrangements, contact Toowoomba divorce lawyers on (07) 4639 0000.

Kokoda Challenge
Since 2004 the Kokoda Youth Foundation has been supporting young Australians in the Spirit of Kokoda – courage, endurance, mateship and sacrifice.

On Sunday, 4 May 2014, The Kokoda Challenge came to Toowoomba, and Best Wilson Buckley Family Law staff participated in the 15km challenge in support of local youth to be part of the Kokoda Challenge Youth Program (KCYP).

What is Surrogacy

Surrogacy is a term which conceptualises the idea that an eligible person or persons (“the intended parent/s”) can enter into an arrangement with a third party female (“the birth mother”) for the birth mother to become pregnant but the child be raised by the intended parent/s, as if it was conceived naturally to the intended parent/s.

The idea of surrogacy is becoming an increasingly popular option to those intended parent/s that want to be parents but for one reason or another are unable to conceive a child naturally.

The Law in Queensland

In Queensland, surrogacy is governed by the Surrogacy Act 2010 (Qld), however, children who are the subject to properly considered surrogacy arrangements, which are implemented in their entirety, are subject to the provisions of the Family Law Act 1975 (Cth) in the same way that a naturally conceived child is.

Enforceability of Surrogacy Arrangements

Whilst the Surrogacy Act makes provision for legal and legitimate surrogacy arrangements, they are not (save for some limited terms) enforceable in Queensland (neither party is “bound” by the terms). The surrogacy process is very much premised upon the consent and continued consent to a surrogacy arrangement until the end of the process by the birth mother and the intended parent/s. However, orders of the Court which are made as a consequence of a surrogacy arrangement being correctly implemented are binding (including parentage orders which are explained below).

By way of illustration, if a child is born and the birth mother no longer wants to transfer parentage to the intended parent/s then she is not obliged to, regardless of whether or not there is a surrogacy arrangement in place (and in that circumstance the intended parent/s may need to consider their rights under the Family Law Act). Likewise, if the intended parent/s no longer wish to assume responsibility for the child after the birth, then the birth mother retains parentage of the child.

Legal Advice

The requirements for intended parent/s and birth mothers to successfully enter and complete a legal and legitimate surrogacy arrangement in Queensland are onerous.

It is important that any individual considering entering into a surrogacy arrangements seeks legal advice as soon as they begin considering their options.

Each party must have obtained independent legal advice prior to any order being made that transfers parentage of a child (“parentage order”).

Effecting the Transfer of Parentage

After 28 days following the birth of a child, the intended parent/s can apply to the Children’s Court for a parentage order.

A parentage order will only be made with the consent of the intended parent/s and the birth mother. In addition there are a number of onerous procedural and other requirements (including the preparation of a surrogacy guidance report) which must be fulfilled prior to a parentage order being made.

If a parentage order is made, the child is considered to be the child of the intended parent/s for the purposes of the Family Law Act.

If the intended parent/s do not apply for a parentage order within 6 months from the birth of the child, then they will need the leave of the Children’s Court to do so.

Can any intended parent/s or birth mother consent to a parentage order?

To obtain a parentage order, the Surrogacy Act imposes a number of requirements, including that both the birth mother and the intended parent/s have attained 25 years of age and that there is some basis as to why a surrogacy arrangement is desirable rather than a birth by way of natural conception.

Commercial Surrogacy

It is important to realise that in Queensland, as well as in other states of Australia (NSW and the ACT), it is illegal to enter into a commercial surrogacy arrangement which is an arrangement where the birth mother makes a profit or is rewarded for giving birth to a child (although the birth mother is entitled to be reimbursed for reasonable costs in relation to a surrogacy arrangement in Queensland).

It is important to ensure prior to entering into any surrogacy arrangement, that legal advice is obtained to ensure that the terms of the surrogacy arrangement are not intruding on what is defined by the Surrogacy Act as a “commercial surrogacy arrangement” as penalties may apply.

Conclusion

Surrogacy arrangements offer a viable option for people who wish to have children but are unable to do so. They can produce fantastic outcomes for all involved, however, need to be managed with caution and with the assistance of sound legal advice.

For more information, contact our friendly team at reception via the form on the right, or call Family lawyers Toowoomba on (07) 4639 0000 or Best Wilson Buckley Family Law on (07)3210 0281

The government-based Child support scheme ceases to operate after a child turns 18. One notable exception to this is when a child turns 18, and they are still attending secondary school. In such a case, an application can be made to the Department of Human Services – Child Support for the child support assessment to be extended until the last day of school. An application of this nature should be made prior to the child turning 18, and after they turn 17.

Once a child has turned 18, all child support matters are dealt with via agreement with the other parent, or through the Family Court System.

Continued Support After Secondary School

Another exception to the general rule is where a child has a physical or mental disability, or is attending further tertiary education, such as TAFE or University.  An adult child or a parent can make an application through the Family Courts for further maintenance.  This is known as “adult child maintenance”.

Adult Child Maintenance for Tertiary Education

When a matter for adult child maintenance about tertiary education comes before the Court, a number of factors will determine whether maintenance is warranted, and to what extend, this include (but are not limited to):

Whether financial dependence between the adult child and their parents has ceased, and for how long. The court is often reluctant to resurrect this dependence after an extended period;
The nature of the course, the estimated costs to be incurred and the prospect for employment at the completion of, or towards the completion of, the course;
Previous assistance and benefits available to the adult child;
The ability of the adult child to provide his or her own financial support.  This includes the ability of the adult child to work part-time during the semester, or full-time during breaks;
The ability of the adult child to complete the course;
The financial circumstances of the parents, or other persons who would be tasked with payments.

Note as to University Fees –  the Higher Education Loans Program (HELP) scheme administered by the Commonwealth Government allows a student to defer payment of course fees until they are earning a certain income. The Court therefore excludes the payment of those fees when calculating the amount of financial support a child requires.

The maintenance will either be directly paid to:

The parent or guardian that the Adult Child is living with; or
The Adult Child.

A parent or adult child can ask the Department of Human Services  – Child Support to collect any maintenance payable on their behalf.

 

If you require advice on any child support matter, call Best Wilson Buckley Family Law Toowoomba on (07) 4639 0000 or Best Wilson Buckley Brisbane on (07) 3210 0281 or email us at [email protected].

I am routinely asked what rules apply to the use of married and maiden names following separation. Interestingly, around half of separated women choose to revert to their maiden name at some stage following separation.

There is often some very good reasons for retaining your married name. These include maintaining professional reputation, and the benefit of being known by the same name as your children. Obviously, in some instances there is a desire to distance yourself from a previous relationship, or establish a new-found independence by reverting to a maiden name. I am unaware of any case where a party has been prevented from the ongoing use of their married name by injunction, and I query whether a Court would find jurisdiction to make such an Order. Ultimately the decision is a personal one.

Technically, as a married woman you have a right to be known by both names, you only `lose’ the right to revert to your maiden name, if there was a need to change your name by formal registration (often called `deed poll’) in order to effect the change (something routinely required where marriage has taken place overseas). A formal name change will be required in that instance to revert to your maiden name.

Where you have simply assumed your married name (which occurs in the majority of cases), you can revert to your maiden name prior to divorce with the use of your birth certificate and marriage certificate (documents which effectively establish the origin of the previous name change and the basis for the reversion). There may be some institutions that will require a divorce order before facilitating any change, but the Australian Passports Office, Medicare and Queensland Transport will not require proof of divorce. As three core identifying documents, most other institutions will thereafter alter your name on their records upon production of your passport, drivers licence or medicare card (or alternatively simply your birth certificate).

Extracts from your birth and marriage registration can be requested from your local Magistrates Court (who in turn will liaise with the Registry of Births, Deaths and Marriages). To notify each organisation of your name change, simply call them or go to each institutions website in order to determine what is required by the agency. If documents are to be lodged by post or fax, please ensure that copies of your original documentation are certified by a Justice of the Peace or Legal Practitioner.

If you have any queries about your individual set of circumstances, contact our team of expert Toowoomba divorce lawyers for a free, no-obligation discussion.

Immunising a child is often a very personal, and for some, a very difficult decision. The Family Law Courts are routinely faced with parental dispute around whether a child should be immunised against some or all of the diseases the subject of the National Immunisation Schedule. This dispute, like any other pertaining to a child in this jurisdiction, is to be determined in accordance with the best interests of the subject child.

The nature in which a child has been parented, and decisions made early in the child’s life, may bear upon the attitude taken to a parent that is now voicing an objection to immunisation.

In many instances these cases have involved detailed evidence from a range of health practitioners, often culminating in the need for a Court to assess the risk to a child of immunisation as opposed to the risk of not immunising a child (both to that child and any children reasonably affected by the failure to immunise).

In many instances the birth of a new half-sibling will prompt an insistence upon immunisation.

In a number of cases the Court has heard from specialists in homeopathic and natural medicine in considering the evidence of Immunologists. The Court has previously allowed for testing to determine natural immunity before imposing immunisation in some instances. Similarly, where concerns arise for a parent in the imposition of multiple immunisations on one day, the Court has allowed for some restructuring of same, assuming there is credible medical evidence to support such an approach.

Similarly, and whilst making no findings as to the benefit of same, the Court has indicated a willingness to allow a parent to couch immunisation dates in care from alternative health practitioners, including chiropractic and naturopathic care. Where immunisations have been rendered medically invalid by the child’s age, the Court will similarly show a preference for avoiding unnecessary medical intervention.

There appears to be a very genuine concern from the bench in relation to the risk of an adverse reaction in a child, the understandable fears of a parent and the repercussions of such an adverse reaction for a family. This risk though has been considered in many instances to be outweighed by the risk posed by the failure to immunise. A brief survey of the published decisions relevant to this issue reflects a clear preference for immunisation, but a willingness to consider each case on its own unique facts. The most important consideration in preparing your opposition to immunisation is to ensure that your concerns and proposed orders are premised in valid medical evidence.

A relocation dispute in the context of parental separation, is often one of the most painful areas of litigation. Almost consistently both parents are committed, and loving parents, whom simply are pulled by life and circumstance in two very disparate geographic directions. Whether it is to another town, state or country, relocation can have profound effects on all parties involved, including most importantly a child. In 2005 the Standing Committee on Legal and Constitutional Affairs tabled a report on changes to the Family Law Act. The report, entitled Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 dealt with many issues, one issue of considerable concern was relocation. Chief Justice Bryant gave evidence before the committee, where her Honour noted:
Relocation cases are the hardest cases that the court does, unquestionably. If you read the judgments, in almost every judgment at first instance and by the full court you will see the comment that these cases are heart-wrenching, they are difficult and they do not allow for an easy answer. Internationally, they pose exactly the same problems as they pose in Australia. I have heard them described as cases which pose a dilemma rather than a problem: a problem can be solved: a dilemma is insoluble
What is Relocation?
Many parents following a separation will move to another town, city or even country  There is very little restriction, per se, on the rights of an adult to live where they choose. A `relocation’ dispute emerges where the relocating parent believes that the child of the relationship is best placed with them in the new location, and the other parent disagrees. Whilst often referred to as a specific category of case, the Family Law Act (the Act) does not specifically address relocation as a concept. Accordingly, relocation is dealt with under the general principles guiding the resolution of parenting matters in the Act.

Despite the specific proposals of the parties, the Court is at liberty to consider any arrangement for the child assuming that, on the evidence available, the outcome is in the best interests of a child and reasonably practicable. Whilst a Court cannot necessarily require a parent to remain living in a specific location, in many respects the Court will engineer such an outcome by refusing permission for a child to live with the relocating parent should they move away.

Going to Court

If one parent wishes to relocate with a child and both parties cannot come to an agreement, the court will ultimately have to make a decision in regards to the child’s living arrangements. Like any parenting dispute, the Court will be required to make findings relevant to what proposal most aptly accommodates the best interests of a child.

We strongly recommend that you give due consideration to the following issues in the context of mediation before proceedings are initiated:

Is there a way of maintaining the current significance of time spent between residences in the context of the change in residential location of one parent ?
Could the `left behind’ parent potentially consider relocation with the other parent and child ?
What impact will any change having upon the child ?
 Is it realistic for the child to potentially live with the parent not relocating?
 Is the child of an age where they have specific wishes which should be afforded weight ?
What are the reasons for the parent wanting the move ?
What is proposed by way of a new school, and living arrangements ?
Is there potential for an agreement to a short term relocation ?
How can the difficulty and expense of travel between new residential locations be mitigated, and will the cost prohibit time ?
How strong is the relationship between the child and each parent now ?
What capacity will the child have to communicate by electronic means, including telephone, messaging, and skype ?
What attitude have both parents taken to the facilitation of time and meeting the responsibilities of parenthood in the past ?
Is it reasonably practicable to require a parent to remain living where they are ?  Will they emotionally and financially be able to cope ?

It is our experience that where parents have positively facilitated each other’s relationship with the child in the past, permission to relocate a child is more likely. The Court is likely to have significant concern as to the capacity of a parent to facilitate a relationship whilst living a significant distance apart from each other, if the relationship has not been promoted whilst living in the same town.

The High Court has ruled that in addition to considering whether an outcome would be in the best interests of a child, the Court must consider whether it is reasonably practicable to require a parent to remain living with a child in a location against their wishes.  In considering issues of practicability, the High Court pointed to some of the considerations set out above, such as the availability of affordable and appropriate housing, employment and family support, as well as the impact of an Order to remain in the location upon the emotional and mental health and wellbeing of each of the parents.

Seek Legal Advice

Relocation cases are particularly difficult and given their complexity representation is often essential. Best Wilson Buckley Family Law can act on your behalf if you wish to negotiate your relocation, or if you wish to seek the residence of a child where the other parent is moving away.

 

Call Best Wilson Buckley Family Law Toowoomba on (07) 4639 0000 or Best Wilson Buckley Family Law Brisbane on (07) 3210 0281.

By Stephanie Wilkinson
A recent Federal Circuit Court of Australia decision has highlighted an area of the Family Law Act that few outside the family law fraternity know about, the liability for childbirth maintenance. 
Childbirth Maintenance

Section 67B of the Family Law Act outlines that the father of a child who is not married to the child’s mother is liable to make a proper contribution towards:

The maintenance of the mother for the childbirth maintenance period;
The reasonable medical expenses incurred in relation to the pregnancy and birth of the child; and
Any expenses in regard to the death of the child or mother if death occurs as a result of the birth or pregnancy.

Childbirth Maintenance Period

The Family Law Act provides that the maintenance period will always cease 3 months after the birth of the child and will always begin on the day 2 months prior to the date that the child is due. This period may be extended if:

The mother is employed; and
The mother is advised by a medical practitioner that she should cease working for medical reasons directly related to the pregnancy; and
The mother stops work prior to two months before the child is due.

Should these three conditions be met, the maintenance period will begin on the day the mother ceases work.

Proper Contribution

In proceedings for childbirth maintenance, a court will have regard to:

The income, earning capacity, and property and financial resources of both the mother and father of the child;
Commitments of the mother and father that are necessary in order to support themselves or any other child or person to whom they have a duty to maintain;
Special circumstances of the parties that, if ignored, would cause injustice to any person.

When taking into account the first bullet point, the court will disregard any entitlements a mother may have to a pension, allowance or benefit. This is particularly relevant in the example below.

Practical Example

Abrahams v Simm [2014] FCCA 67 was a recent case before the Federal Circuit Court of Australia that dealt with a childbirth maintenance application.

In this application, the Mother sought the sum of $27,061, which comprised of $15,610 for maintenance during the childbirth maintenance period, and $11,451 in regards to the reasonable medial expenses of the pregnancy and birth.

In his decision, Judge Neville excluded some of the claimed medical expenses, such as the expense for a Doula birthing partner and a settling swing. Judge Neville also partially excluded some of the claim for private health insurance cover. Judge Neville also excluded the “Baby Bonus” of $5,000 from being considered a financial resource of the mother for the purpose of assessment, as it is an allowance or benefit. The Father had also already paid a sum of $3200 by way of financial support.

Ultimately the court conceded that as a general proposition, the Father should be responsible for half of the costs and expenses. Taking into account the income, earning capacity and financial resources of both parties it was ordered that the Father was to pay $7,000 in relation to the maintenance of the Mother for the childbirth maintenance period, and a further $7,000 for reasonable medical expenses incurred as a result of the pregnancy and birth of the child.

Looking for Help?

The general principles in Abrahams v Simm should be thoroughly considered, however their implementation should not be considered typical. Personal circumstances weight heavily in a courts decision, and also in an individuals choice to mediate or litigate. The best person to advise you on how your personal circumstances and the law intersect is a lawyer.

Best Wilson Buckley Family Law can provide you with current and relevant legal advice, taking into account your personal circumstances and the courts probable decision. For assistance, call Best Wilson Buckley Family Law on (07) 4639 0000 for our Toowoomba Office, or (07) 3210 0281 for our Brisbane Offices.

By Kara Best

Registering Your Relationship

A registered relationship is a legally recognised relationship between 2 adult individuals in Queensland. A registered relationship is normally considered when marriage is undesirable or unavailable, such as where a couple is opposed to marriage, or of the same-sex.

A registered relationship completely replaces the previous provision for a civil partnership under the Civil Partnerships Act. Any leftover references to civil partnerships or civil partners in Acts or documents are taken to be a reference to a registered relationship or partner, context permitting.

Requirements

To register a relationship, both partners must:
1. Not be married,
2. No be in another registered relationship,
3. Not be in a prohibited relationship (such as a relationship with a lineal ancestor),

And at least one of the proposed partners must:
1. Be living in Queensland at least six months prior to the application.

Registration takes place through the Department of Justice’s Registry of Births, Deaths and Marriages. There is no fee associated with registering your relationship, however a fee is charged if a relationship certificate is requested.

Once the registrar receives an application, they must hold the application for 10 days prior to lodging and registering the application. This in referred to as the registration period.

Important Changes

A registered relationship not only provides state recognition and approval to a relationship, but it also provides certain changes to the legal status of both partners.

It is important that prior to registering a relationship, both parties seek legal advice. Parties to a registered relationship are treated as spouses, and as such registration impacts areas such as:

• Property Law
• Payroll Tax
• Personal Injury
• Guardianship
• Succession and Intestacy

As such it is important that both parties seek to be informed of their new legal status and how it might impact their current situation.

Child support is the means by which money changes hands relative to the financial needs of a child. In some instances it is determined by agreement between separated parents, more often by application of a child support formulae administered by the Child Support Agency (“CSA”) (which is within the Federal Department of Human Services) and very occasionally by Order of the Court. 

A recent article by the Courier Mail highlights however that nationally more than a billion dollars is owed in child support payments, $287 million of which is owed by Queenslanders.

There is a clear means by which an assessment made by the Agency can be challenged if premised on incorrect information. Accordingly if no challenge is made, or the assessment upheld after a challenge, then the presumption is that the support is properly payable and any failure to pay is deliberate and actionable. 

The Federal Government, through the Department of Human Services, can enforce payments in a variety of ways.  Some of these methords include:

Employer Deductions The Department can ask employers to make employer deductions from an employees pay to account for money owed. In these situations the employer will make child support deductions directly from a parents pay to the Department.
Taxation Deductions  All child support parents are required to lodge a tax return unless they are exempt by the Australian Taxation Office (ATO). This allows the ATO to update the Department of Human Services on each parent’s income, and ensure that his or her assessments are correct. Furthermore, the ATO advises the Department before paying out a tax refund to eligible child support parents. The Department may take this refund to meet outstanding support payments. By intercepting tax refunds $116 million in owed payments were recovered  by the Agency in 2013.
Travel Restrictions.   The Department of Human Services is able to issue a Departure Prohibition Order against parents that are planning on travelling outside of Australia, have outstanding child support payments owed, and are refusing to make those payments. This order prohibits the person from leaving Australia until the order is lifted. The order is lifted once the overdue child support is paid, or a satisfactory payment plan has been arranged. Such an order does not require court approval to issue. Last year $7 million in outstanding child support was paid due to Departure Prohibition Orders.
Court Related Remedies.  As a last resort, the Department can seek a court order to collect outstanding payments. Last year $4 million worth of property was seized as a result of court orders.  The Department may also initiate criminal proceedings where there is evidence of criminal fraud, or other criminal activities by one parent in relation to child support payments.

Human Services Minster Marise Payne has stressed that in a most cases parents do the right thing by their children and pay what is required of them but that reminds Australian parents that “It’s not acceptable for parents to actively avoid their child support responsibilities. There are no winners and often it is their own children who suffer as a result.”

Best Wilson Buckley Family Law is able to assist both liable and recipient parents in relation to difficulties with an Assessment,  enforcement of debt or the decision to reach an agreement outside of the formula. Contact our office in Toowoomba by phoning (07) 4639 0000 or Brisbane on (07) 3210 0281, or email us at [email protected].