It is sometimes trite to think about the spirit of goodwill during the Christmas season and the making of New Year’s resolutions for the coming year.

For those who have experienced relationship breakdowns in the past year, this is an opportune time to reflect on life over the past year and how you might make a fresh start in 2014. Why not think about your role as a parent and how co-parenting and better communication can occur for the benefit of everyone?

Co-parenting is a child centered process where parents work together in a cooperative manner for the benefit of the children. This can sometimes involve having standard household to ensure that children have consistency.

You and your former partner’s emotional relationship has ended. However, your relationship as parents will continues. Your children will benefit from seeing their parents having civil conversations, going to social events together and participating other important events.

If you have experienced communication issues, consider a post separation parenting course with Centacare or Relationships Australia. These courses will allow you to work on your communication strategies and ways to help you and your former partner work towards building resilient children.

Modern technology can also help assist in cooperative sharing of information relevant to the children. You might want to consider things like:

1. using Google Drive or Evernote to share photographs, school reports, permission notes or school requirements/book lists for the New Year;
2. using Google Calendar or a shared calendar in iCloud to share important dates, events or holiday times. These applications are free and can be used across mobile devices such as smart phones or tablets;
3. using the web site https://www.ourchildren.com.au/ for a low fee of $99.00 per year. This site also provides a single email address that can be given to a school or other service providers which then sends emails directly to both parents automatically.

The Christmas and New Year period can be a stressful time for separated families and perhaps some of these ideas may lead to a better and brighter 2014.

As lawyers, it’s in our nature to focus upon the more legalistic aspects of what we do, but at Best Wilson Buckley Family Law we are making a conscious effort to refocus on the most important people to you, your kids.

Separation can be so painful, but often those the suffer the most are those without the capacity to change the situation. The attached video has been produced by the Family Law Courts and is a powerful way of communicating what kids of any and every age can feel when confronted with parental conflict.

If you’d like to know more about the research around the impact on kids of conflict, or the services we have in our community to both prevent conflict and to help your kids if they’re feeling the pressure, please don’t hesitate to let us know. We want the best outcome for you, which will in every instance also be the best outcome for your kids.

ATO REVISITS ITS OWN INTERPRETATION OF TAXATION LAWS AFFECTING PROPERTY SETTLEMENTS

On 13 November 2013, the Australian Taxation Office (ATO) issued a draft Taxation Ruling (TR13/D6) under which the ATO proposes to reinterpret its own rulings that had previously been used to provide an exclusion from certain tax consequences for property settlements.

The draft ruling by the ATO will effectively stop the use of section 109J of the Income Tax Assessment Act. This section had been used to exclude transactions such as the transfer of money or other property from a private company to a spouse as part of a property settlement.

The current draft Taxation Ruling alters this position considerably and is inconsistent with many private rulings that have been issued by the ATO since 2004.

The ATO’s draft determination proposes to change this position and provides that payments (or transfers of property) to a spouse from a private company will be considered as a distribution of the company’s profits and subject to tax like an ordinary dividend.

This effectively means that when distributing retained profits or property owned by a company, the spouse receiving the benefit of any payment from a company will be assessed to pay income tax on the amount received.

This may disadvantage any spouse receiving property or funds from a company as a result of a property settlement. They will now need to factor in the taxation consequences of receiving those funds or property and the tax that they will have to pay as a result. This will have a major effect on property settlement negotiations for parties at the end of a relationship.

In our view, they place an unnecessary and significant burden on parties who simply wish to finalise their property settlement matters in circumstances where they have used companies for business or asset protection purposes.

The draft ruling states that, while the ATO will not actively audit these matters, if a person’s taxation affairs are audited and examined for any other reason, the ATO will enforce its view under the draft ruling. This will not apply to holders of private rulings from the ATO, as they can rely upon a private ruling for protection from any reassessment.

Victoria Legal Aid has recently released a series of nine educational videos on the subject of separation. The videos are available online and offer practical information that also reflects upon some of the experiences of families during separation.

The videos touch upon subjects such as informing your children about separation, getting legal help, planning for the future, dealing with family violence, the division of property and money, and the resolution of disputes.

You can find the online videos on the Victoria Legal Aid website here.

Best Wilson Buckley Family Law also offers a free, comprehensive Family Law Guide that seeks to inform and educate people who are either contemplating separation, or who have already separated. The Guide takes you from your first meeting with a lawyer, right through to separation, child support and property settlement.

The Best Wilson Buckley Family Law Guide provides general legal information and aims to inform readers about the potential issues ahead of them. The Guide also seeks to provide some information and assurance about what the future holds after a personal relationship breaks down, and where to turn to seek further advice and support.

Superannuation is a class of property they can be divided between spouses.

Since 2001 superannuation has been able to be split between the parties to a marriage. In March 2009, legislation was introduced to enable de facto couples to be able to split superannuation.

As part of a property settlement, parties can now split superannuation by agreement. A court make an order about whether superannuation should be split from one party’s superannuation fund and paid to the superannuation fund of the other party.

How do I get information about my spouse’s superannuation?

The Family Law Superannuation Regulations and the Family Law Act allows the trustee of a superannuation fund to provide certain information about either your superannuation interest or your spouse’s interest even if you are not a member of your spouse’s fund.  This information can then be used to negotiate a split of superannuation entitlements.

An application is made to the superannuation fund to provide the current balance and other necessary information about a superannuation entitlement. Most funds charge administration fee to provide this information. It is necessary to obtain up-to-date information about superannuation as account balances can fluctuate with changes in the financial markets.  A superannuation fund is prohibited from telling another party that an application has been made for information about their superannuation entitlement.

Can’t we just use the statements from the super fund?

Fund statements are often issued only a few times per year. As the value of “accumulation” superannuation funds are generally linked to changes in the financial markets, up-to-date information is essential.

Some superannuation funds need to be valued by an actuary as the value of some funds is based on a complicated formula involving salary, contribution rates, and period of time a person has been a member of the fund.  There might also be other benefits that may not be payable until retirement that can affect the current value. These types are generally referred to as “defined benefit” superannuation interests.

It is important to obtain accurate information about superannuation. It can affect the outcome of your property settlement. In one matter I was involved in, the parties had agreed to use figures from their superannuation funds that had been obtained from a year end statement. However, on obtaining information from one of the parties’ superannuation funds, the figure being used by the parties was inaccurate.  The fund’s earnings had grown significantly within a three-month period as a result of the trustee changing its investment strategy. This added tens of thousands of dollars to the property pool.

Superannuation is a complex area and you should obtain independent financial advice from a licensed financial planner or investment advisor if you are considering whether superannuation should be split as part of your property settlement.

It is important to remember that unless you meet the criteria to access your superannuation early, you may not be able to access any funds received as part of a superannuation split.

Important Notice

This article contains general legal information and is not a complete statement of the law. You should obtain specific advice about your own circumstances and not rely upon this article until you have done so. Best Wilson Buckley Family Law Pty Ltd will not accept any liability or responsibility for loss occurring (including negligence) as a result of any person or entity acting or refraining from acting in reliance on any material contained herein.  Information current as at date of posting.

© Best Wilson Buckley Family Law Pty Ltd 2013

Liability is limited by a scheme approved under professional standards legislation

The ACT has signaled that it may make further changes to same-sex marriage laws prior to any High Court legal challenge by their federal counterparts in order to ensure the laws validity.

The ACT has received new advice from advocacy groups and constitutional law experts that would suggest that in order for the laws to be valid and withstand a constitutional challenge, the ACT should make further amendments.

The amendments would place further emphasis on the distinction between marriage and same-sex marriage and ensure consistent terminology throughout the Act. Experts believe the distinction is necessary to survive any challenge from the Commonwealth.

The challenge, which has been described as a David v Goliath battle between the ACT and the Commonwealth over marriage laws, will be subject to a directions hearing on Friday. The Commonwealth will continue its request for a full hearing prior to December.

Read More

So, where should we meet? Appropriate changeover places for the collection and delivery of children 

Although each parent’s behaviour towards the other parent at changeovers will have the most impact on the children, the changeover destination does also contribute to the overall vibe of an integral part of parenting arrangements. Whether the parenting arrangements are established pursuant to a parenting plan, consent orders, or by order of the court, or whether the arrangements are more informal, changeovers are a regular component of separated family’s lives.

The arrangements which are made to facilitate the collection and delivery of children from one respective household to the other are often arrangements which are difficult to establish.

Should changeovers be at the other parent’s home? Should they be at the child’s school? Or should they be at the local contact centre, McDonalds, KFC, petrol station, or police station? The alternatives are really endless, and it is important that thought is given to the best place for your family to meet.

There is no hard and fast rule as to which location should be selected, and most locations are not suitable at all times. For instance, schools are not open during holiday periods or weekends, and contact centres may be unavailable at the required times, given the high level of demand for their services. This requires consideration to be given to other places.

When deciding on the best collection point for your child or children, it may be beneficial to consider what messages and associations the subject children may draw from the ultimately selected destination. Do you think that the association your child may draw from moving from Mum’s care to Dad’s care and back again, with the police station is positive? While sometimes the involvement of the police in changeovers may be necessary, should their involvement not be warranted, adverse inferences may be drawn and this may be unnecessarily damaging to the child.

Similarly, the association children may draw from being delivered and collected to and from a local family restaurant, such as McDonalds, may bring with it negative connotations, and may not instill the happiness that the destination may have been selected to provide.

Ultimately the changeover location that should be selected should be one where both Mum, Dad, and most importantly the children feel happy, safe and secure. After all it is all about the best interests of the children, and ensuring that their transition between their two homes is a smooth one.

Generally speaking, if you hold property with your partner or spouse, there’s two ways that title in a property may be held:-

as tenants in common (where each of you have a distinct and separate portion of the title, for example a one-half interest each, or a two-thirds/one-third interest respectively); and
as joint tenants (where each of you own an entire property together, and you don’t have specific separate interests as such).

If you’re not sure – there’s a quick, easy and relatively inexpensive way to ascertain how your interests are registered on the title of a property, and you should speak with your legal representative about undertaking a title search with the Department of Natural Resources and Mines.

If it is the case that you hold your property interests as joint tenants, in the event either of you were to pass away, then the entire property passes to the other surviving joint tenant (regardless of what you might have said should happen in your will). This can, for obvious reasons, be a cause for significant concern if:-

you’re yet to start (or you’re in the midst of) property settlement negotiations; and
property settlement proceedings have not been commenced.

If you both already hold your interests in a property as tenants in common, then there is no automatic transfer of your interest in the property to the other owner in the event of death. In fact, you can deal with your specific interest in the property pursuant to your will. Be conscious though that if your property settlement hasn’t been finalised formally, your former partner or spouse may apply to the Courts to have a portion of your estate in those circumstances.

It’s for these reasons that it is generally preferable to:-

change any existing joint tenancy arrangements, to a tenancy in common arrangement as soon as possible following separation; and
give priority to the early resolution of your property settlement dispute rather than leaving matters be.

Recently, there has been much publicity about children having been removed by a parent from one country, supposedly on the basis of that parent taking a holiday with the children, and not returning the children.

Increasingly we live in a society where parents do not necessarily come from the same countries and have family or cultural ties to other countries. Naturally, parents may wish to expose their children to their home culture or allow them to have a relationship with extended family overseas.

The Hague Convention on International Child Abduction (Hague Convention) regulates the return of children who have been wrongfully removed from a jurisdiction where they are the subject of parenting arrangements that have either been agreed to by parents or have been ordered by a Court.

Some countries are not signatories to the Hague Convention. To ensure that children are not removed from Australia, the Family Law Courts can make orders that restrain a parent from removing a child from Australia.  In doing so, the Family Law Courts are assisted by the Australian Federal Police who operate the Airport Watch list and PACE Alert system.

PACE Alerts are designed to prevent children involved in Family Law proceedings being removed from Australia without the consent of a parent or the Family Law Courts. The system is used in circumstances where there is a fear (supported by appropriate evidence) that a child may be removed from Australia.

The Family Law Act provides that a child who is the subject of family law proceedings or parenting orders is not to be removed from Australia. There is an exception to allow a child to be removed from Australia with the consent in writing of each party or an Order of a Family Law Court.

A person who removes or attempts to remove a child from Australia may be sentenced up to three (3) years imprisonment.

If you have fears that your child may be removed from Australia without your consent, an Application must be made to a Family Law Court seeking that the child’s name is placed on the Watch list. Evidence must be provided to the Court about your fears so that a Court can determine whether the child’s name should be placed on the Watch list.  Parents can also consent to orders that allow a child’s name to be placed on the Watch list.

During the period between making the Application, the Australian Federal Police (AFP) can temporarily place a child’s name on the Watch list, pending a decision of a Court.

It is important to note that a child’s name remains on the Watch list until a Court makes an order for the child’s name to be removed. A PACE Alert can be “amended” to enable a child to travel outside Australia for a specified period.

If an agreement is reached by parents to allow a child to travel outside Australia, the AFP can act on the written authority of the parents or further order of a Court specifying the period that the child is allowed to travel overseas. The AFP may require a parent to provide information including travel itineraries, return pre-paid airline tickets or other details to enable the AFP to be satisfied that the travel outside Australia is legitimate.

The Watch list applies at all international seaports and airports.

Important Notice

This article contains general legal information and is not a complete statement of the law. You should obtain specific advice about your own circumstances and not rely upon this article until you have done so. Best Wilson Buckley Family Law Pty Ltd will not accept any liability or responsibility for loss occurring (including negligence) as a result of any person or entity acting or refraining from acting in reliance on any material contained herein.  Information current as at the date of posting.

© Best Wilson Buckley Family Law Pty Ltd 2013

Liability is limited by a scheme approved under professional standards legislation

For most people, Christmas is a very important time of the year and if you have yet to sit down with your former partner to discuss Christmas, now is the time to do so. When discussing Christmas arrangements with the other parent, it is essential that you ask yourself these important questions:

Will the children spend time with each parent on Christmas Day and if so, where is changeover going to take place?
Alternatively, will one parent spend the entire Christmas Day with the children this year and the other parent spend time with the children on either Christmas Eve or Boxing Day? If this is the case, will the parent who does not spend Christmas Day with the children this year be given the opportunity to do so next year?
What arrangements are going to put in place for the balance of the Christmas School holidays? Will the children spend half of the school holidays with one parent or will they spend week about time with each parent?

When considering the above questions, it is important to keep in mind that Christmas is also a time where extended families come together. So in addition to the above questions, parents should consider whether this year is a particular year where one side of the family usually enjoys Christmas together and if so, children should also be given an opportunity to spend time with extended family members.

Whilst most parents will be able to reach an agreement between themselves, in the event that parents are concerned that an agreement will not be reached, now is the time to commence discussions. There are Family Dispute Resolution (“FDR”) services available to assist parents in trying to reach a resolution about parenting arrangements and these services include the Family Relationships Centre and Relationships Australia however please note that there is a waiting period to attend mediation. Alternatively, there are private Family Dispute Resolution practitioners who charge for their services although there is usually a shorter waiting period.

If an agreement is still not reached, parents can make an Application to the Court to seek Orders for the children’s time with the parents over the Christmas Schools Holidays. However, this Application to the Court needs to be made by 4pm on Friday, 8 November 2013 and except in particular circumstances, the Court requires parties to attend Family Dispute Resolution prior to making an Application. 

If you have any concerns about what your arrangements will be over the upcoming Christmas Holidays, you can make an initial appointment with our office today. And remember, do not leave it until the last minute.

Collaborative Parenting – Easy ways to avoid the conflict

When two people separate there has most likely been a degree of conflict, and difficulty communicating. When there are children involved, it is important that both parents have an awareness that the conflict between the two of them is unlikely to have positive consequences for the children. The following suggestions may assist in prioritising your child or children during difficult periods.

Compromise – the old “give and take” principle

It is the old adage of “a bit of give leads to a bit of take” but parents should be aware that making the other parent’s life difficult with respect to children’s arrangements is unlikely to impact positively on the children. Let’s not beat around the bush, and contemplate that facilitating parenting arrangements is easy. It is not. Often parenting Orders are laced with complex paragraphs with respect to time spent between each parent and often, without some level of give and take, any parenting arrangement in place will not operate smoothly. Parents need to have awareness that whilst parenting arrangements may be inconvenient for them, it is most likely the children who are truly inconvenienced by any situation where the there is no “give” and both parents are “taking”.

Make arrangements and note them on the calendar!

Arrangements for the care of children and the time the children would spend with each parent (whether informal or formal) should be made with a view that each party will do all they can to abide by such arrangements. To assist in this regard a good method is to mark specific details of the arrangements for the children in advance on a calendar and then seek comment or agreement from the other parent and by exchanging a copy of the calendar with that parent when such agreement is reached. Such a calendar ensures that each parent is on the “same page” when it comes to when the changeover of the children will occur and where it will occur. The calendar further gives parties the ability to sort out any misinterpretations, misunderstandings or inconsistent inferences between the parents with respect to the parenting arrangements, before a situation arises where both parents think they are abiding by the arrangements only to find out that they are abiding by different arrangements.

Make use of the Toowoomba Children’s Contact Centre

If there is a possibility of conflict occurring between the parents at a changeover then Best Wilson Buckley Family Law would recommend that parents make use of the Toowoomba Children’s Contact Centre.

The Centre is a safe environment for parents to effect changeover of the children without necessarily having to come into contact with each other. The experienced staff at the contact centre will do all things in their power to ensure that changeover of the children is effected in a proper manner and it gives each parent and the child peace of mind that changeover will be facilitated without the added stress that potential conflict brings with it.

Conclusion

There is no consensus on the best way to make parenting arrangements run smoothly. What there is for the most part though is consensus that conflict between parents is unlikely to have positive consequences for the children. Approaching such matters with a mindset of compromise and acceptance rather than the “my way or the highway” approach and implementing arrangements which will lead to the lowest chance of conflict occurring between the parents is essential.

The completely independent Doyle’s Review of Australian Lawyers 2012, following their extensive research, considers Best Wilson Buckley’s Reagan Wilson as one of the state’s best family lawyers.

Doyle’s Review of the best firms and lawyers is compiled on the back of extensive telephone and face to face interviews with clients, peers and relevant industry bodies. All research is compiled on an independent basis.

In addition to the individual award for best family lawyer, Best Wilson Buckley Family Law was ranked as one of Queensland’s top family law firms.

“It’s a great honour to be acknowledged by both our clients and peers in this manner,” said Best Wilson Buckley Family Law Director, Kara Best.

“We are deeply committed to providing excellent client service.”

Family law has the capacity to inflame emotions in a way that very few other issues can. Most will have a story of a friend, acquaintance or family member that has been let down by the system and unfairly derived of time with their children or their material wealth post separation. It is difficult to countenance criticisms of the system that are more general in nature. The law is highly discretionary in that what is in the best interests of a child will depend upon that unique child and his or her situation. Similarly, what is just and equitable when it comes to the division of property will depend upon a myriad of variables, and some might argue rightfully so. One rule for all has potential to generate enormous injustice.

Whilst your lawyer should be in a position to provide you with specialist advice about what will happen in the event that a matter progresses to Court, ultimately you’re unlikely to be amongst the limited number that ultimately reach the doors of the Court and a more pragmatic approach is required in order to get matters resolved quickly and on the best terms for preserving your post-separation parenting relationship.

Negotiating a path following separation is a difficult thing, and often there is little guidance as to how to move forward in a positive way. The desire to protect a child from the repercussions of separation is often the highest priority for separating parents. Whilst the law has the same agenda, it rarely offers practical guidance in relation to protecting children from emotional harm in the context of separation. Lynne Clark and Cheryl Smith are both social workers, with extensive experience in the dynamics of separation and the effect of relationship breakdown on children. In their book Separating Respectfully they have endeavoured to identify twelve `rules’ to protect your children from emotional harm. They include:

Parents must make the decisions around how each child will spend their time
Adhere to any parenting agreement reached
Be on time
Use flexibility wisely (consistency is important)
Negotiate with the other parent before you tell your children of any proposed changes
Never communicate your arrangements through your children
Do not question your children in detail
Do not believe all your children tell you
Respect the role of the other parent, even if you no longer respect the person
Behave respectfully
Prioritise your child’s experiences (in other words maximise the opportunity for your child’s positive experiences whilst in your care)
Focus on yourself and what you are doing right rather than on your former partner and what he or she is doing wrong.

Efforts were made by the Howard Government in 2006 to move the Family Law from a more adversarial or Kramer v. Kramer orientation to a more collaborative approach. Long term research has yet to establish how successful these changes have been in altering the experience of children caught up in parental conflict.

More information in relation to the publication Separating Respectfully can be obtained from www.separatingrespectfully.com

More information can be obtained from Best Wilson Buckley Family Law, Family Law Firm in Toowoomba.
The information contained herein is not intended to be a complete statement of the law on any subject and should not be used as a substitute for legal advice in specific fact situations.

There is a growing incidence of the use of `Facebook evidence’ in family law court proceedings. Extracts from Facebook, printed by a `friend’ and provided to the other parent are routinely annexed to affidavit evidence and the Court asked to infer something negative about the publishing parent. It is imperative that parents be conscious of the consequences of placing any negative comments about another parent on an internet site such a Facebook. `Friends’ may no longer be `friends’ in the context of separation and a heated parenting dispute, and comments made in the heat of the moment may ultimately form the basis for a Court’s decision about time that a child is to spend with a parent. This will be particularly damaging evidence in circumstances where a child has access to a parent’s site and the capacity to view derogatory comments.

The attitude of parents to each other is an important consideration under the Family Law Act, as is the capacity of a parent to foster the other parent’s relationship with a child. Status updates like `My ex is a loser’ or `I just smashed her in Court’ are unlikely to encourage a positive parenting relationship. The Court tends to view such comments as a desire to publish to the world at large, rather than something as discrete as an email or a chat over coffee with a friend. Everyone deserves the opportunity to vent, it is simply important to choose the right avenue. There are specific provisions of the Family Law Act that prohibit parties from discussing court proceedings in a public forum and provide serious penalties for any publication.

It is imperative that children are distanced from verbal or written comments of a derogatory nature. There is an abundance of psychological evidence that clearly establishes the damaging effect upon a growing psyche of being exposed to parental conflict.

Posting photographs or location updates on Facebook can also be used as evidence. For example, in one Family Court decision, a parent was ordered to spend time with the child at his home during contact visits however, a photograph later surfaced on Facebook with the Father and the child at the beach. The Court subsequently found that the parent had breached the Order with serious consequences.

Whilst we are all human, best to keep the above in mind when next updating your Facebook status.

The practice of `Collaborative Law’ offers enormous potential for the community, and particularly where family breakdown and the needs of children are involved.

The concept originated in the US in the early 1990s and involves separating couples and their lawyers making a commitment to attempt, in good faith and with a spirit of full disclosure and honesty, to reach a mutually acceptable settlement without going to Court, and by cooperatively working to address everyone’s legal, financial and emotional needs.

If agreement is not reached, and the parties must turn to the Court, then each respective lawyer is obliged to withdraw from any further involvement.
There are significant advantages to the approach:

The process is very interest driven, rather than focussed on tactics and one party `winning’
The focus is on identifying what each party (and their children) require to move forward positively, and reaching agreement about how best to accommodate those needs
The process encourages open, non-confrontational communication in a round table conference format, not angry inflammatory correspondence
It avoids Court, and the significant cost, delay and hostility that often results from going to Court
It avoids handing control over your life and your children to a third party (Judge) whom has no insight into your needs or experience
Children’s needs are given priority
The parties can embrace creative solutions suited to their own family’s needs
Other professionals such as counsellors, accountants and financial advisers who are trained in Collaborative practice routinely engage with the parties and their lawyers to explore solutions

The process is not suited to matters where there are any allegations of risk or violence to a party or the children, where a party is simply wanting revenge against a former partner, or if a party wishes to keep secrets.

Should you be in the midst of separation, I encourage you to seek out a trained local collaborative lawyer and ask them at the outset of your dispute whether your situation would be assisted by adopting the collaborative approach.

To find out more about collaborative law and trained practitioners of this model in the Toowoomba region contact the Queensland Collaborative Law Association

The short answer is yes. Under the provisions of the Family Law Act 1975 (Cth), a parent, grandparent or any person concerned with the care, welfare or development of a child can make application to the Court.

This effectively allows step-parents, and other significant family members and previous carers to seek the assistance of the Court in restoring their role in the child’s life following separation and conflict.

If you need assistance with this area of law, come and see Best & Wilson Solicitors Toowoomba for more information.

The information contained herein is not intended to be a complete statement of the law on any subject and should not be used as a substitute for legal advice in specific fact situations.

There is a growing incidence of the use of `Facebook evidence’ in family law court proceedings. Extracts from Facebook, printed by a `friend’ and provided to the other parent are routinely annexed to affidavit evidence and the Court asked to infer something negative about the publishing parent. It is imperative that parents be conscious of the consequences of placing any negative comments about another parent on an internet site such a Facebook. `Friends’ may no longer be `friends’ in the context of separation and a heated parenting dispute, and comments made in the heat of the moment may ultimately form the basis for a Court’s decision about time that a child is to spend with a parent. This will be particularly damaging evidence in circumstances where a child has access to a parent’s site and the capacity to view derogatory comments.

The attitude of parents to each other is an important consideration under the Family Law Act, as is the capacity of a parent to foster the other parent’s relationship with a child. Status updates like `My ex is a loser’ or `I just smashed her in Court’ are unlikely to encourage a positive parenting relationship. The Court tends to view such comments as a desire to publish to the world at large, rather than something as discrete as an email or a chat over coffee with a friend. Everyone deserves the opportunity to vent, it is simply important to choose the right avenue. There are specific provisions of the Family Law Act that prohibit parties from discussing court proceedings in a public forum and provide serious penalties for any publication.

It is imperative that children are distanced from verbal or written comments of a derogatory nature. There is an abundance of psychological evidence that clearly establishes the damaging effect upon a growing psyche of being exposed to parental conflict.

Posting photographs or location updates on Facebook can also be used as evidence. For example, in one Family Court decision, a parent was ordered to spend time with the child at his home during contact visits however, a photograph later surfaced on Facebook with the Father and the child at the beach. The Court subsequently found that the parent had breached the Order with serious consequences.

Whilst we are all human, best to keep the above in mind when next updating your Facebook status.

I often hear horror stories about how much money has been spent in legal fees associated with a matrimonial or de facto property settlement dispute. Often lawyers are cast in a negative light in this regard. Whilst some blame can, from time to time, be appropriate, it’s imperative that those in dispute with their former partner give serious thought to taking control of their own legal fees and the direction of the dispute.

I recommend that you keep the following in mind:

1. Always keep in mind the bottom line. It makes no sense to expend $30,000 in legal fee if you stand to receive a settlement of only slightly more than that;
2. Give some thought to the “go away” factor, how much are you prepared to sacrifice in the context of negotiations in order to move forward positively and without the dispute hanging around your neck;
3. Seek experience and specialisation from your legal adviser (one doesn’t seek out a neurologist to discuss a broken foot);
4. Take time to consider the advice provided, and think seriously before disregarding that advice if you intend to do so;
5. Where possible exhaust the prospect of agreement via mediation or family dispute resolution before contemplating an Application to the Court;
6. Refrain from repeating discussions with your legal adviser about the same issues;
7. Utilise experienced and responsible administrative staff to answer any queries within their capacity and realm of expertise;
8. Where possible seek to prepare written instructions in relation to the history of a particular dispute;
9. When asked to collate documents, take some time to do so in an ordered and easy to follow manner;
10. Utilise email if this form of communication is embraced by your solicitor;
11. Communicate clearly to your lawyer what you need from them, consider putting together a series of questions in the week leading up to your appointment in order to ensure that you address everything on your mind;
12. Ensure that there is an open and honest dialogue with your solicitor in relation to your legal fees; and
13. Seek clarification as to how you will be charged before asking your solicitor to start work.

Professional service is all about reputation and client satisfaction. Be conscious that the great majority of solicitors want only to put you in a better position as a consequence of their involvement.

It is somewhat obvious to acknowledge that Christmas is sometimes a difficult period for separated families. The law recognises that it’s important for children to have some consistency about celebrations of important events like Christmas and Birthdays, and to enjoy time with as many family members as possible.

Ultimately, it is a matter for each family as to how to embrace a peaceful and happy Christmas Day following separation. Some families are in a position to enjoy special days together, with parents putting aside differences to ensure that they are both available to their celebrating child at the same time. This isn’t the most practical option where there is any risk of open conflict, or new partners and children are involved. Some embrace the prospect of a shared day, so one parent enjoys celebrations with the child on the eve of the special day and morning, and either prior to or following lunch the child moves to the other parent to enjoy the afternoon and evening. This works effectively when the distance between households is limited. Based on the routine of extended family celebrations, it might work for this to remain consistent from year to year, or alternatively it could be swapped each year.

Where distance is problematic, many parents agree to the prospect of a child spending the entire Christmas period (or birthday) in alternate years with each parent. For some this is a painful alternative, and whilst telephone and SKYPE time can be enjoyed, often children will be somewhat despondent about the prospect of missing out entirely on spending time with a parent on a special day like Christmas or birthday.

Ultimately, the Court does seek that parents be guided by their children’s needs. Many older children will comfortably embrace the prospect of spending alternate Christmas or birthdays with a parent (and particularly if presents are still exchanged in a ceremonious way on a separate occasion). Younger children may need parents to put aside their personal desires in order to have a more joint day. It is most important to ensure that there is no potential for conflict in the presence of the children. Best wishes for safe and happy Christmas period.

Kara Best
Director

Legislation has now been passed to validate orders made by the Family Law Courts in matters between de facto couples that resulted from an “administrative error” made by the Federal Government.

The Family Law Amendment (Validation of Certain Orders and Other Measures) Bill 2012 passed through the Senate on 22 March 2012. The legislation was introduced into the House of Representatives on 14 March 2012 to enable orders that were made prior to 11 February 2012 to be validated.

On 1 March 2009, changes to the Family Law Act 1975 came into effect to enable the Family Law Courts to have jurisdiction over de facto financial matters that had previously be the subject of state or territory legislation. However, important proclamations under the Family Law Act giving the Courts jurisdiction to made orders and declarations were overlooked by the Federal Government and not made. As a consequence, such orders and declarations may not have been valid and could have resulted in uncertainty about the arrangements for property settlement matters agreed to by parties or ordered by the Courts.

The purpose of the Bill was to ensure orders that had been made prior to 11 February 2012 were validated without parties having to go to any further expense or bring further proceedings in the Courts. The effect of the legislation is to “put persons in the same position as they would have been in” if the proclamations had been made in March 2009. The Bill also makes amendment to the Family Law Act to remove the necessity for proclamations to be made to bring into effect changes any future changes to the Family Law Act to prevent a similar situation from occurring again in the future.

The changes to the legislation are likely to come into effect by the end of March.