On 11 June 2020, our Principal, Damien Greer, spoke to the Royal Australian College of Physicians on the impact that COVID-19 has had on family law matters.
To read more about the impact on family law matters, please read our article where the most frequently asked family law related COVID-19 questions are answered by our team.
For the article referred to in Damien’s presentation, please go to http://news.mit.edu/2020/pandemic-health-response-economic-recovery-0401#.XuHo2rw_kOY.email
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Frequently Asked Questions As the government’s response to the COVID-19 continues to develop and impose more restrictions on individuals and businesses alike, many of our clients have contacted us with questions about how those restrictions are likely to impact upon their family law matter. In this blog article, we aim to address some of the […]

The post COVID-19 & Family Law Issues appeared first on Damien Greer Lawyers.

Frequently Asked Questions
As the government’s response to the
COVID-19 continues to develop and impose more restrictions on individuals and
businesses alike, many of our clients have contacted us with questions about
how those restrictions are likely to impact upon their family law matter.
In this blog article, we aim to address
some of frequently asked questions we have received from our client’s over the
past few weeks, as well as pass on information to our client’s about how their
matter in particular may be affected.
Are the Courts still open and/or how will my court date be (procedurally) affected by COVID-19 issues/restrictions?
By Carolyn McKenna, Lawyer at Damien Greer Lawyers
The Family Court of Australia and the
Federal Circuit Court of Australia remain open and operational and will
continue to assist parties during these uncertain times. 
At this stage, most (if not all) procedural
hearings are being conducted by telephone, with the Courts contacting parties
in advance by email to provide telephone and video-conference details. 
The Courts are also conducting Case
Assessment Conferences, Conciliation Conferences and mediations through
telephone and video-conference facilities.
However, some interim hearings, urgent
matters and Trials are still being conducted in Court. It is at the Court’s
discretion to determine whether a matter should be heard in person or by other
means.
Where a matter is heard face-to-face,
there are strict limits on the number of people allowed in the Courtroom at any
one time (namely, 8 people) and there are guidelines as to where each person is
required to sit to comply with social distancing rules.   
Matters that have already been given a
court date containing child related and family violence aspects will remain
listed.  Urgent matters, priority trials
and contested hearings will also remain listed.
Non-urgent property only trials may be
adjourned, and non-urgent parenting trials may also be adjourned, but this will
be determined at the Judge’s discretion. 
We will keep clients updated in this regard.  If you do not hear from us that your court
date has been moved, then you can presume your matter is going ahead on the
allocated date.
Documents to be lodged with the Court will be filed through the Commonwealth Courts Portal or by emailing the local Registry.   A list of the Federal Circuit Court Registries can be found here.
At the current time, the Courts are
accepting electronic signatures on Court documents to encourage social
distancing and to prevent parties having to attending upon a qualified witness
to witness their signature.  However, the
deponents of the Affidavits (or Financial Statements) will be required to be
available by way of video conferencing, telephone or in person at a subsequent
court event to swear or affirm that the contents of their Affidavit (or
Financial Statement) are true and correct to the best of their knowledge,
information and belief.
Please note that the acceptance of
electronic signatures only applies during the current COVID-19 pandemic.
Should you have any questions about how the COVID-19 pandemic will affect your court matter, please do not hesitate to contact our office on 07 3837 5500 or at [email protected]
Are mediations/family report interviews still occurring and/or how will they be affected by COVID-19 issues/restrictions?
By Carolyn McKenna, Lawyer at Damien Greer Lawyers
Unless you have been told
otherwise, mediations and family report interviews will continue as scheduled,
however to protect all parties involved, mediations and family report
interviews will most likely take place by telephone and/or video-conferencing. 
For mediations, we will discuss and arrange with clients
beforehand if it is appropriate for them to be present in our office for the
mediation.  If this is the case, it is
highly likely that the mediator and other party (and their legal
representation) will attend the mediation by telephone and/or video conference.
For family report interviews, we will confirm with clients
beforehand the arrangements put in place by the individual family report
writer.
If you have any concerns regarding your mediation/family report interview, please do not hesitate to contact our office on 07 3837 5500 or at [email protected] 
How will COVID-19 issues/restrictions impact upon my shared parenting arrangements?
By Carolyn McKenna, Lawyer at Damien Greer Lawyers
During these uncertain times, previously
agreed parenting arrangements or Court Orders may be affected and may need to change
temporarily. 
While the Court acknowledges that it is
in the best interests of children to maintain their relationship with both
parents, we appreciate that parents also need to take into account the changing
circumstances and any health risks associated with facilitating time with the
other parent. 
Locations of changeovers may close, such
as schools or shopping centres.  If
possible, arrange with the other parent an alternative and agreed changeover
location now.  If it is safe for both
parties and there is an agreement between the parties, consider if changeovers
can take place at parents’ homes.
If children are unable to travel
interstate to spend time with a parent (i.e. because flights have been
cancelled or a State or Territory has applied border restrictions), consider
arranging regular Skype/FaceTime calls and rearrange make up time for later in
the year. 
The most important thing to remember is
what is in the best interests of the child. 
While there are a lot of genuine concerns, the COVID-19 pandemic should not
be used as justification for limiting or stopping a child’s time with their
parent.  If it is necessary, the Court’s
will need to later consider whether a parent had a ‘reasonable excuse’ to do
so.
We suggest that all parents be sensible
and pragmatic about these issues and seek legal advice before limiting,
stopping or changing the child’s living arrangements without the consent of the
other parent.
We (and the Courts) encourage clients to
be flexible and creative in the current circumstances and to work and
communicate with the other parent as much as possible in discussing and
agreeing on new arrangements.
However, we recommend that any temporary
changes be documented in writing by consent where possible, either by text
message, email or correspondence through lawyers.  However, please always consider obtaining
legal advice before signing any documents reflecting agreed changes so as not
to inadvertently enter into an open ended Parenting Plan.
If you have any concerns regarding changing parenting arrangements, please contact our office on 07 3837 5500 or at [email protected]
Will I be able to travel interstate to spend time with my children despite the COVID-19 restrictions?
By Carolyn McKenna, Lawyer at Damien
Greer Lawyers
Some Australian States and Territories
are applying border restrictions in response to the Government’s protocols for
non-essential travel.
The Queensland government has clarified
that a party is exempt from the requirement to self-isolate for 14 days if that
party enters Queensland from interstate to comply with or pursuant to Family
Court Orders. 
However, this exemption does not apply if
a party has travelled to a COVID-19 ‘hotspot’ which is determined by the Chief
Health Officer. 
This means that unless a parent has
travelled to a COVID-19 ‘hotspot’, it is not a ‘reasonable
excuse’ to prevent children travelling to Queensland to spend time with a
parent.
As the restrictions are changing and
developing rapidly, we recommend clients check the restrictions in place for
the relevant State or Territory prior to any travel, or refusal to travel. 
To keep up to date on the travel restrictions for Queensland, please check the Queensland Government’s website.
To keep up to date on the travel restrictions for each State and Territory, please check the Australian Government’s website.
In the event that you are travelling
pursuant to Family Court Orders, when you are crossing any State or Territory
border you will be required to provide a copy of your Court Order as evidence
of such essential movement to border control personnel.
Please ensure you also carry current
photo identification.
Should you or your child be prevented
from travelling interstate due to restrictions or lack of Orders permitting
such travel, we recommend clients consider arranging regular Skype/FaceTime
calls between the child and the absent parent to maintain their relationship.
If you require a copy of you Court Order, or you have any concerns regarding travelling interstate, do not hesitate to contact our office on 07 3837 5500 or at [email protected]
What should I do if the other parent has a confirmed or suspected case of COVID-19 and there are Family Court Orders in place?
By Carolyn McKenna, Lawyer at Damien
Greer Lawyers
If the other parent has a confirmed case
of COVID-19, has a suspected case of COVID-19, has been in close contact with a
confirmed case of COVID-19, or has arrived in Australia after midnight on 15
March 2020, that parent is required to self-isolate for 14 days.
The Australian Government also recommends
that those living with you must also isolate.
Complying with the Australian
Government’s recommendations regarding COVID-19 is paramount, and you may be
unable to comply with you Court Orders if a parent (or child) is required to
self-isolate.
Should the other parent be required to
self-isolate, and your child is in their care, your child will be required to
self-isolate with the other parent for 14 days. 

Should the other parent be required to
self-isolate, and your child is in your care, your child may need to remain in
your care until the other parent’s isolation period has ended – however, this
should be discussed and agreed upon with the other parent.
The Court expects all parents to act in
the best interests of their children, and we ask clients to consider
alternative solutions for contact if a child is away from a parent due to
self-isolation.  Consider increasing telephone
or FaceTime calls, or arranging for make up time once the isolation period has
ended.
We recommend that any temporary changes
be documented in writing by consent where possible, either by text message,
email or correspondence through lawyers. 
However, please always consider obtaining legal advice before signing
any documents reflecting agreed changes so as not to inadvertently enter into
an open ended Parenting Plan.
We remind parents that the COVID-19
pandemic should not be used as justification for limiting or stopping a child’s
time with their parent.
If you have any concerns about changes to your parenting arrangement, please contact our office on 07 3837 5500 or get started online.
What should I do if the other parent will not facilitate my child’s time with me due to COVID-19 issues?
By Sarah Dibley, Associate at Damien
Greer Lawyers
The answer to this depends on the basis
upon which the parent is refusing to facilitate a child’s time.
The Courts expect parents and carers will
act in the best interests of children, which includes complying with Court
Orders in relation to parenting arrangements, providing it is safe to do so.
A mere concern that a child may be
exposed to COVID-19 will likely not be a sufficient reason to fail to comply
with a Court Order.
However, if there are, for example,
safety concerns that have arisen where one parent, or someone in close contact
with that parent, has been exposed to COVID-19, this may restrict the safe
movement of a child from one house to another.
Even if strict compliance with orders is
not possible, the Court expects that parents will work together in the best
interests of their children to formulate a comparable alternative option that
is within “the spirit of” or achieves the purpose of the Orders.
In the event a parent is found to have
failed to comply with an Order without a ‘reasonable excuse’, a range of
penalties may apply.
In the event the other parent will not
facilitate a child’s time with you due to COVID-19 issues we recommend you seek
specialist family law advice at the earliest available opportunity.
In the event there is no apparent
reasonable excuse, and if negotiation or mediation is unsuccessful or
inappropriate, you may be required to make an application to the Court.
If you have any concerns about changes to your parenting arrangement, please contact our office on 07 3837 5500 or get started online.
What should I do if the other parent and I have been able to reach an agreement to accommodate the COVID-19 issues?
By Josh Williams, Associate at Damien
Greer Lawyers
If you and the other parent have
been able to reach an agreement, then your agreement should be recorded in
writing.
We recommend that, at a minimum,
this should be recorded by way of emails, text messages or some other form of
communication app that can be accessed and produced to a court at a later date.
We further recommend that the
agreement be set out clearly in numbered or dot point form, and that both
parties acknowledge by way of text or email that the points accurately
represent the agreement reached between the parties.
It is important that the parties
take the time to do this as:
A clear understanding of the agreement by both
parties makes it less likely that there will be a disagreement in relation to
the terms at a later date;
In the event of a disagreement, the parties can
refer back to the terms agreed between them;
If there are ongoing proceedings before the
family courts, these terms may need to be referred to at a later date and a
written record is much better evidence than an oral account of the terms. This
is particularly so if a party attempts to allege a contravention at a later
date.
If parties wish to alter the
operation of existing orders in a more permanent way, they can consider
entering into a Parenting Plan.  We
recommend that all parties obtain legal advice prior to entering into any
further Parenting Plans or Consent Orders to ensure they have a full
understanding of the effect and consequences of same.
For more information about Parenting Plans or Consent Orders, please contact our office on 07 3837 5500 or get started online.
My income earning capacity has been negatively affected by COVID-19 – how will this affect my family law matter?
By Josh Williams, Associate at Damien Greer Lawyers
A number of industries have been
heavily affected by the COVID-19 outbreak and the government’s subsequent
preventative measures. As a result, a great many people have lost their jobs
and source of income.
This has potential relevance to
three (3) family law areas, namely:
Property settlements; Spousal maintenance; and Child Support.
Property Settlements
The court has an established
process that it follows when determining applications for an alteration of
property under the Family Law Act 1975 (Cth). One part of that process
is for the court to consider the future needs of each party, which includes a
consideration of their respective income earning capacities.
The key word in this
consideration is ‘capacity’, and it is not necessarily the case that a sudden
loss of income represents a loss of earning ‘capacity.’
For example, someone in a
profession that is able to obtain a similar job at a similar level of income
has not lost their earning ‘capacity.’
Whereas, it may be argued that a
musician who is unable to perform at live venues or concerts (due to government
social distancing restrictions) has lost their capacity at least for as long as
those restrictions apply.
It is important to acknowledge that
we are in the early stages of this crisis, and the economic effects will likely
be felt by many industries for a great deal of time.
If it can be successfully argued
that you have lost you earning ‘capacity’ then this may affect the overall
division that you receive in property proceedings.
Spousal maintenance
If you are the payer of spousal
maintenance pursuant to an Order (whether interim or final) and you have lost
your income, it is important that you act quickly.
If you are able to reach an
agreement with the payee to vary the terms, then you may not need to make an
application to the court but you should record your agreement in writing.
If you cannot reach an agreement
you may need to bring an application to the Court to vary or discharge the Order,
as failing to pay maintenance pursuant to an Order is a contravention of an Order.
If your former partner has lost
their job, then they may not have the capacity to support themselves or pay
spousal maintenance.
It may be worth considering
alternative arrangements such as lump sum spousal maintenance if that is an
option that is available.
Child Support
Where there is a Child Support
Assessment in place, it is likely to be affected by a loss of income of the
payer, and possibly the payee.
If an Assessment is in place, you
should approach the Department about having your child support obligation
re-assessed if you have lost your source of income.
If you have a Binding Child
Support Agreement in place, you will still need to meet your child support
obligations under the Agreement unless a loss of income was a ‘terminating
event’ for the purpose of your agreement.
If you cannot meet your
obligations under the Agreement you may need to make an Application to the Court
to set aside your agreement, however, the Court will only do this in particular
circumstances and these applications are not often successful.
To obtain tailored advice on how a COVID-19 loss of income is likely to impact your family law financial settlement or child support arrangements, please contact our office on 07 3837 5500 or get started online.
How will COVID-19 impact upon the valuation of my assets (business, real estate, superannuation)?
By Wendy Miller, Special Counsel at
Damien Greer Lawyers
Your business
The
devasting impact of COVID-19 on businesses is widely reported in the daily
news. If your business is one of those that has already closed or is likely to
close then there is no doubt that this closure will affect its value.
Valuing an operating business
that earns a fair rate of return usually involves consideration of the value of
assets owned by the business as well and the consistency and quality of its
earnings.
On the earnings test, the value
of a business that has been affected by COVID-19 will be less than it would
otherwise have been. On the assets test, the effect of COVIS-19 is less clear.
It would be reasonable to expect that in the short term, there may be very little
if any affect.
If we knew how long it is going
to be before a business could recover it would be sensible to delay a valuation
until the business has fully recovered from the effect of COVID-19. Such a
decision would clearly be in both party’s interests.
Real Estate
The effect of COVID-19 on
property values is less clear.
In the short term, there may be
no impact on the market value of a property. 
Much will depend on how long the impact of COVID-19 will last and the
opinion of the valuer who values the property.
Part of their analysis is to
compare sales of similar properties in the area to the subject property. This
means that the location of the property may be another factor to add to the
uncertainty.
Even if the market value of a
property is not affected, its sale may take longer if there is less buyer
demand. 
If a property is to be sold, it
will be a decision the parties will have to make jointly as to when that
property should be listed for sale.
If one party wants to sell the
property and the other party will not agree, then the only way to resolve this
impasse is to commence proceedings and ask the Court to make an Order that the
property be sold. This should only be a last resort.
Superannuation
For those who hold their
superannuation in a commercial Fund, where that Fund invests in the stock
market then the value of their superannuation entitlement in the Fund in the
short term may not be affected.
However, the value of their
superannuation may be affected in the long term.
The extent to which a person’s
superannuation will be affected will vary between Funds and will depend on the
range of asset classes the Fund invests in.
For family law purposes, there is
not much a person can do about this situation as it is the Trustee of the Fund
who makes investment decisions and values a member’s superannuation
entitlement.
Self-Managed Superannuation Fund
As with commercial funds, the
effect of COVID-19 will depend on the type of assets the Fund owns.
If those assets are mainly shares
traded on the stock market then the value of the Fund will vary according to
the value of those shares at any one time.
If the Fund owns property then
the effect of COVID-19 is less clear. Its value will only be affected if
COVID-19 is responsible for a fall in the market value of the property.
For family law purposes, parties,
who are usually the trustees of their Fund (or directors of the corporate
trustee), have some control over how to manage the effect of COVID-19 on the
assets owned by the Fund.  They can
decide to change the type of assets owned by the Fund and they can decide to
delay valuing the Fund until it recovers from the effect of COVID-19.
Alternatively, they can decide to
do an in specie super split between them as part of their property settlement
so they each take a share of the assets at their present value.  
To obtain tailored advice on how COVID-19 is likely to impact your family law financial settlement, please contact our office on 07 3837 5500 or get started online.
My partner and I have separated but due to COVID-19 restrictions we are still living together.  Will we be able to apply for a divorce?
By Caitlin Wilson, Associate at Damien
Greer Lawyers
Yes – you will still be able to apply for a divorce if you
are still living together due to COVID-19 restrictions, or other reasons
altogether.
While it is a requirement to be separated for a period of 12
months (or longer) prior to being able to make an Application for Divorce, it
is not a requirement for parties to live apart after they’ve decided to
separate.
Parties can make an Application for Divorce if they are ‘separated under one roof’, however, you will need to file an Affidavit of yourself to explain why you have continued together following separation.  To learn more about what should be included in this Affidavit, click here.
You may also need to file an Affidavit of a third party (or
parties) to provide evidence of your separation as well.
To avoid a dispute about the date of separation at a later
time, if it is appropriate to do so, consider communicating your separation to
your partner in some form of writing (text message or email) to confirm your
intention to separate as well as what you say is/was the date of separation.
This will help support your Application for Divorce where
you have separated under one roof and will avoid any confusion with respect to
the date of separation.
To obtain advice about an Application for Divorce or being ‘Separated Under One Roof’ due to COVID-19 or other reasons, please contact us on 07 3837 5500 or get started online.
What should I do if I am isolated with my partner and I have been a victim of domestic violence, or I have a genuine concern that I will become a victim of domestic violence?
By Scott Richardson, Special Counsel at
Damien Greer Lawyers
If you are
in a relationship (spousal, defacto or intimate personal relationship) and have
been subjected to an act of domestic violence by your partner, you are able to
seek protection for yourself or your family members by filing an Application
for a Protection Order in the State Courts.
It is not a
requirement for you and your partner to separate or live apart prior to an
Application being filed.
“Domestic
violence” includes physical violence, verbal abuse, emotional or psychological
abuse, and/or behaviour that is controlling or coercive.
The Courts
can make Temporary Protection Orders prohibiting your partner from committing
further acts of “domestic violence” and if necessary, can make an Order
requiring your partner to vacate the family home, if required.
Temporary Protection
Orders can be made on the same day you file your Application.  
The
Covid-19 restrictions mean that the initial court appearance is likely to be by
telephone.
It is also
likely that your application, after Temporary Protection Orders are made, will
be adjourned for approximately three (3) months before coming back before the
Courts.
If you are
in immediate danger, please call 000.
For more information on how to obtain a Domestic Violence Order (or respond to an Application for one), please contact us on 07 3837 5500 or get started online.
The post COVID-19 & Family Law Issues appeared first on Damien Greer Lawyers.

Over the past few days in particular, we have had a number
of enquiries about how the COVID-19 pandemic will affect our client’s family
law matters.
In this blog article, we aim to address some of the issues
that have already arisen or may arise, as well as pass on information to our
client’s about how their matter in particular may be affected.
The Court System
The Family Court of Australia and the Federal Circuit Court
of Australia have just announced a number of urgent and new changes to how
Court matters are to be handled moving forward, and until further notice.
The Court will continue to take new Applications and to hear
matters that are already on foot. 
However, the manner in which the Court will hear matters and the
priority that is given to particular matters, has changed.
Some of the main changes are as follows:
Matters that have already been given
a court date containing child related and family violence aspects will remain
listed.  Urgent matters, priority trials
and contested hearings will also remain listed.However, there will be a limit of 8
people in a courtroom at any one time (excluding the Judge and their support
staff). While there are usual around 30-35
matters in a Judge’s Duty List, all listed for a start time of 9.30am, moving
forward these high-volume lists will be staggered to reduce the number of
people in attendance.  Again, we will
notify you of any change to the start time of your matter. All matters remaining in the
Callover list in Brisbane, Sydney, Parramatta and Adelaide will be postponed
until further notice. Non-urgent property only trials may
be adjourned, and non-urgent parenting trials may also be adjourned, but this will
be determined at the Judge’s discretion. 
We will keep clients updated in this regard.  If you do not hear from us that your court
date has been moved, then you can presume your matter is going ahead on the
allocated date. Where and if appropriate, Trials,
Appeals and interim hearings will be conducted by telephone or video
conferencing.  Again, we will advise you
if this is applicable to your matter.Where attendance is required,
divorce hearings will be conducted by telephone from now until the end of June
2020.All Case Assessment Conferences and
Conciliation Conferences will also be conducted via telephone. Family Reports arranged by the Court
will proceed as arranged, unless parties are notified otherwise. All reports
will be conducted in accordance with social distancing principles.
It
is possible that the Courts may close in the future. 
We
recommend that clients continue to look to alternative dispute resolution to
resolve their family law matter, including negotiation, mediation and family
dispute resolution.
Parenting Matters
There is a great deal of uncertainty and concern with
respect to compliance with agreed and/or Court Ordered parenting arrangements
with COVID-19. 
Parents have also been concerned about what it will mean for
them if a ‘lockdown’ was Ordered.
Children’s time with each parent
It is important for children
to maintain their relationship with both parents, however, we appreciate that
parents also need to take into account the changing circumstances and any
health risks associated with facilitating time with the other parent.
We therefore encourage clients to be
flexible and creative in the current circumstances. 
For example, if children are
unable to travel interstate to spend time with a parent (i.e. because flights
have been cancelled), is it possible to arrange regular Skype/FaceTime calls
and rearrange make up time for later in the year?  If an agreed venue has been closed, can the
children spend time with the parent at an alternative venue?
The most important thing to
remember is what is in the best interests of the child.  While there are a lot of genuine concerns, the
COVID-19 pandemic should not be used as justification for limiting or stopping
a child’s time with their parent.  If it
is necessary, the Court’s will need to later consider whether a parent had a
‘reasonable excuse’ to do so.
We suggest that all parents
be sensible and pragmatic about these issues and seek legal advice before
limiting, stopping or changing the child’s living arrangements without the
consent of the other parent.
Changeovers
Locations of changeovers may
close, such as schools or shopping centres. 

If possible, arrange with
the other parent an alternative and agreed changeover location now.  If it is safe for both parties and there is
an agreement between the parties, consider if changeovers can take place at
parents’ homes.
Alternative care arrangements
We recommend clients make
arrangements should child care facilities and schools close. 
It may be more appropriate to
seek support from the other parent, rather than a grandparent, who may be more
vulnerable to COVID-19.
Several different care
arrangements for the child should be discussed with the other parent in the
event that one or both parent’s contract COVID-19 and/or have to go into
isolation.
The more parents can think
about and talk about these issues in advance, the smoother things will go if
and when this situation arises.
Changes to parenting arrangements
During these uncertain
times, parenting arrangements may change temporarily. 
We recommend that any temporary
changes be documented in writing by consent where possible, either by text
message, email or correspondence through lawyers. 
If you have any concerns
regarding changing parenting arrangements, please contact our office.
Breaching parenting orders
We remind clients that if
they are considering breaching parenting orders, both generally and due to
concerns around COVID-19, that parent must have a ‘reasonable excuse’ to do so. 
It is not
enough for a parent to simply be concerned about COVID-19 to justify breaching
parenting orders. 
We also hold the view that,
generally, it would not be reasonable for a parent to breach parenting orders
if they have the opinion that the other parent does not have the same standards
of hygiene as them. 
We recommend parties make
contingency arrangements now in the event one or both parents, or the child,
contracts COVID-19 and/or isolation is required. 

If you have concerns about
whether it is reasonable to breach parenting orders in the circumstances,
please contact our office as soon as possible.
Domestic violence Issues
It
is certain, in these uncertain and ever-changing times, that tensions and
anxieties will be on the rise.  This
means that there is the potential for domestic and family violence to also increase.
If
you are in immediate danger, please contact the Police on 000.
If you would like assistance, please contact our office, or call the 24-hour national sexual assault, domestic family violence counselling service on 1800 737 732.
Property settlement Matters
Superannuation splits
Please be aware that
superannuation splits may be affected in the current climate.
Superannuation splits are
often expressed in dollar terms.
Given the uncertainty and
volatility in the share market at present, it may no longer be just and
equitable to enforce the terms of a superannuation split in a Consent Order or
a Financial Agreement.
For those matters that have
not yet been finalised, it may be preferred for superannuation splits to be
expressed in percentage, rather than dollar terms, to take into account the
uncertainty of the market.
Please contact our office if
you have any concerns regarding superannuation splits.
Business valuations
Much
like superannuation splits, given the uncertainty of the market at present,
business valuations that have recently been obtained may need to be
reconsidered.
Many
businesses have already been adversely effected by COVID-19 while others have
thrived.  The effect of COVID-19 on the
value of a business is an unknown at this time and one that requires expert
third party advice.
Please
contact our office if you have any concerns regarding the effect of COVID-19 on
your business valuation or financial settlement.
Real estate valuations
Again,
it is an unknown as to how the COVID-19 pandemic will effect the real estate
market.
We
encourage clients to get in touch with us to discuss their concerns and obtain
third party advice where necessary.
Child Support and Spousal Maintenance
We
have already started to hear that a number of people have been laid off, are
unable to work or have been forced to work reduced hours as a result of
COVID-19.
In
these cases, it may be appropriate to seek or expect that a reassessment of
child support payable may be made, given that the Child Support formula takes
into account each parent’s income. 
If you have concerns regarding child support, do not
hesitate to contact either the Child Support Agency or our office.
Spousal
maintenance also takes into account each party’s income and their capacity to
meet their own reasonable weekly expenses as well as contribute to any deficit
in the other party’s capacity to meet their reasonable weekly expenses.
If
there is a spousal maintenance Order in place and you have concerns that you or
the other party will not be able to meet that Order because of a change to the
level of your/their income as a result of changes to your employment from
COVID-19, please contact us as soon as possible to discuss the circumstances
and whether a change to the arrangements is appropriate or necessary – as well
as what alternatives might be available.
Overseas travel
We
remind all client to check on the Australian Government’s website before
travelling overseas.
If
you are not an Australian citizen or permanent resident, you may not be able to
return to Australia.
In
any event, at present, you will be required to self-isolate for 14 days upon
your return from overseas. You will need to think about how this will effect
your family law issues, for example, your parenting arrangements or your
ability to attend a court hearing.
If
you have travel arrangements with children to go overseas in the future, we
recommend parents discuss whether the travel is appropriate and necessary at
this current time.
Communication
In
the current climate, people are becoming more anxious regarding their health,
employment and their family’s well-being. 
We remind all clients to be considerate of others. 
If
communication between parties are amicable, we encourage clients to call the
other party to discuss any concerns they may have to prevent any
miscommunication or misunderstandings, but ultimately, to ensure where possible
that any changes to agreed arrangements are reflected in writing
Our office remains open (although many of us will be working from home to do our part in social distancing).  Should you wish to contact our office or should you require any advice about the effect of COVID-19 on your family law matter, please call us on 07 3837 5500.
The post Damien Greer Lawyers’ top tips for clients during COVID-19 appeared first on Damien Greer Lawyers.

If you and your partner are considering
a divorce, then it’s more than likely that
you’ve also considered living separately during the process. However, while it
is a requirement to be separated for a period of 12 months prior to being able
to make an application for a divorce, it is not a requirement for parties to live
apart after they’ve decided to separate.
In fact, it’s common for couples who
are separated to live together, even if this is just for a short period of time,
following the breakdown of their relationship. This is known as being ‘separated
under one roof’.  In this article,
we’ll explain all you need to know about applying for a divorce if you have
separated from your partner but have remained living together ‘under one roof’.

Why Do People Separate Under One Roof?
Separation is a difficult time for
both parties. However, there are several reasons why separated couples continue
to live together in the short term, including (but certainly not limited to):
Financial reasons – If you’ve already budgeted your household income and now need to work out your personal income following the split, it can be difficult to budget initially. For this reason, many separated couples continue living together because they cannot afford to pay rent or a mortgage on their own. Stability for children – If there are children from the marriage, moving out of the former matrimonial home might be particularly difficult for both parents and children alike. For this reason, many separated couples continue to live together in order to provide some stability for the children in the short term. In practical terms for the parents, this can also assist them in reaching a resolution about their future parenting responsibilities and make decisions about where the children will live and how much time they will spend with each parent, as they can discuss these arrangements together before physically moving out of the former matrimonial home. Convenience – Many of us choose our family home because it’s close to work or school. For this reason, it’s often easier and more convenient for couples to live together for a period until similarly convenient arrangements can be made. 

How Do We Prove that We’re Separated Under One Roof?
If you and your partner continue
living together for all or part of the 12-month separation period, you will need
to provide the court with an Affidavit (along with your Application for
Divorce) that deposes to a change in the marriage, whether gradual or sudden, and
that evidences that speaks to the fact that while you are still living
together, you and your spouse have still in fact, separated.
You may also need to file an
Affidavit of a third party (or parties) to provide evidence of your separation
as well.
Your Affidavit should explain why
you continued to live together following separation and  should also try to cover the following factors
to show that while a physical separation has not occurred, there has been a
breakdown in the relationship and no reasonable likelihood that the
relationship will resume: 
Any changes to the financial aspects
of the relationship following separation– For example, closing down joint
accounts, opening of separate bank accounts, or changing the responsibility for
payment of liabilities;  Any
changes to the nature of the household – For example, giving evidence that you
no longer share a bedroom, cook meals for one another or complete household
chores for one another; Any
changes to the social aspects of the relationship – For example, giving
evidence as to when family and friends were notified of the relationship
breakdown or giving evidence to show you are no longer treated as a couple socially
(e.g. you are no longer invited to social events together that you were invited
to as a couple or would have been invited to as a couple during your
relationship); The
absence of a sexual relationship;Any
changes to the nature of your commitment to one another– For example, whether
there has been a withdrawal of intimacy, companionship and support to the other
party;What government departments you have
advised of your separation if you receive a government benefit (e.g.
Centrelink).
If you and your partner are
separating prior to a divorce and would like advice about ‘separation under one
roof’, please contact
us on 07 3837 5500 or get
started online. We can handle all aspects of your separation and
divorce and guide you through what can often be a difficult and confusing process.

The post How Do I Prove I’m Separated Under One Roof? appeared first on Damien Greer Lawyers.

When our clients come to visit us,
we’re often asked “how long will my divorce take?” Unfortunately, this is often
a tricky question that is not always easy to answer.
At present, and generally speaking,
it usually takes a few months for a divorce to be finalised. This timeframe
starts when you first file your application with the court and finishes when a
Divorce Order is issued by the court.
However, what is not included in this
estimate is the timeframe leading up to the filing of an application for
divorce.  The length of this timeframe depends
on whether you and your spouse agree on the facts contained in the divorce application,
whether the application needs to be formally ‘served’ on your spouse (where a
sole rather than joint application is being made) and whether appropriate
arrangements are in place for the children prior to the application being made.

What’s the Difference Between Separation and Divorce?
Before you consider filing for
divorce, it’s important to know the difference
between a divorce and a separation. Separation occurs when one party
communicates to the other that the relationship has ended and they then act
upon that communication.  Physical
separation does not by itself bring to an end the matrimonial relationship –
rather, it is the departure from a state of things that is determinative of
separation, rather than being physically separated from a person or place (e.g.
the former matrimonial home).
A divorce is an Order from the Court
that is obtained by one or both parties that confirms that in the eyes of the
law, you are no longer married.
You can only file for divorce once
you have been separated for a period of 12 months. This can include a period
where you’re considered to be ‘separated
under one roof’.

Filing for Divorce
The court is not
interested in hearing whose ‘fault’ the breakdown of the relationship was.
Rather, the courts role is to ensure that the requirements for divorce have
been satisfied, namely that:
• You and your spouse
have been separated for at least 12 months (note: it is possible to be
separated but living under one roof);
• There has been an
‘irretrievable breakdown’ of the marriage (i.e.: that reconciliation is no
longer possible); and
• Either you or your
spouse is an Australian citizen or resident, and that you regard Australia as
your permanent home.
However, if you and
your partner have been married for less than two years, you will need to wait
until you have been separated for two years before you can apply for a divorce.
Alternatively, you will
be required to seek counselling from a registered counsellor or seek special
permission from the court to apply for the divorce to be granted earlier.
Sole or Joint
Application
You can apply for a
divorce by yourself (referred to as a ‘sole application’) or you can apply for
a divorce with your spouse (referred to as a ‘joint application’).
If you and your spouse
make a joint application or if there are no children under the age of 18 at the
time you make the application (whether solely or jointly), you will not be
required to attend the divorce hearing.
However, if you make a
sole application and there is a child (or children) of the marriage under the
age of 18, you will be required to attend the divorce hearing.
This is because the
court must be satisfied that either:
• Proper arrangements
have been made for any child of the marriage under the age of 18; or
• Special circumstances
exist as to why the divorce should be granted even though proper arrangements
have not been made.
All divorces will then become final
one month and one day after the day the divorce was granted. This is when the
Divorce Order is issued by the court (this was previously known as a
Certificate of Divorce).
Delays to Divorce Proceedings
If your divorce runs smoothly
through this process, then your divorce should be finalised in a few months,
depending on how long it takes to receive a hearing date from the court.
However, there are several points in
the process where delays can be experienced. For example, if you file a sole
application for divorce, then delays could be caused by you tracking down your
partner to issue them with the papers.
Likewise, if problems are discovered
with the paperwork or if you haven’t followed the necessary procedural steps,
the court will adjourn your hearing to another date, causing a delay. In
addition, delays can also be caused if the court isn’t happy with the agreement
in place to protect the child.
Time Limits
There are no time limits in which to
apply for a divorce and you do not have to wait for your divorce order to
become final in order to obtain a property settlement or formalise the
arrangements for your children.
However, once your divorce order
becomes final, you have a period of 12 months in which to apply to the court
for a property settlement, in the event that you and your partner are unable to
come to an agreement on your own.
If you do not make an application to
court before the limitation date expires, you will forever lose your right to
make an application to court without first seeking leave to proceed out of time
– an application which may not be successful.
If you have missed your limitation date, you should immediately seek legal advice. Our solicitors can advise you about your prospects of bringing an application out of time. For more information about the divorce process, or to get your application underway, please contact us on 07 3837 5500 or [email protected]
The post How Long Does it Take to Get Divorced? appeared first on Damien Greer Lawyers.

There are
a number of ways that child support can be managed between parents.
Some
parents choose to and are able to have very flexible, informal arrangements
between them.
Others prefer
for their arrangements to be managed via the Child Support Agency – and other
parents prefer to formalise the arrangements via a Private Agreement to determine
how expenses that might not necessarily be covered or sufficient under a child
support assessment through the Child Support Agency will be paid by each parent.

Determining
how you want to manage your child support is the first step.
Irrespective
of whether there is a private agreement in place or child support is managed by
the Child Support Agency, as a parent, it is your obligation to ensure that:
If you are
the paying parent, that you pay the full amount of your child support on time; You lodge
your tax return on time; You report
all income accurately; and You tell
the government about any changes in your circumstances.
The Child Support Agency
The Child
Support Agency has designed a formula that takes into account each parents
circumstances to determine what amount of child support is to be paid.
This
formula takes into account:
Each parent’s income and the combined income amount;How much time each parents cares for each child; andEach child’s age.
The costs
of a child is worked out based on research conducted by the Child Support
Agency into what parents spend on children in Australia.
Once an
application for a child support assessment has been made, the Child Support
Agency will contact the applicant and discuss options for collection.
The
formula does not include an allowance for private school fees or health
insurance premiums.
Private Child Support Agreements
The Child
Support (Assessment) Act also provides for two types of agreements that set or
alter the amount of child support to be paid to take things into account such
as:
payment of private school fees;payment of uniforms, books and extra-curricular-activities;payment of private health insurance;additional costs due to the ‘special needs’ of a child.
The two
types of Private Child Support Agreements include:
Limited Child Support Agreements; and,Binding Child Support Agreements.
Binding Child Support and Limited Child Support Agreements: What’s the Difference?
Both
Limited Child Support Agreements (LCSA) and Binding Child Support Agreements
(BCSA) allow parents to formalise their child support arrangements. 
Both
agreements need to be signed by the parties and lodged with the Child Support Agency. However,
both types of agreement are different. As a result, you should carefully
consider which type of child support agreement is right for you. In the table
below, we set out the similarities and the differences.

Limited Child Support Agreement (LCSA)

Binding Child Support Agreement (BCSA)

Only lasts three (3) years.
 

Will only end when a terminating event occurs,
such as the child turning 18, etc.

Parties do not need to obtain legal advice prior
to entering into a LCSA. 
 

Parties do need to obtain independent legal
advice before entering into a BCSA and attach a certificate signed by the
solicitor.
 

A child support assessment must be undertaken by
the Child Support Agency.
 

No child support assessment needs to be
undertaken by the Child Support Agency.

Amount payable by a parent must be equal to or
more than the amount specified in the child support assessment.

Amount payable can be for any amount (including
less than any amount specified in a child support assessment, if the parties
have obtained an assessment from the Child Support Agency).
 

Changing a Limited Child Support Agreement

Changing a Binding Child Support Agreement

The LCSA can change or end if the parents agree
to end the current LCSA, either in writing, or by entering into a new LCSA or
a BCSA.  The new LCSA will again only last three (3) years.
 

A BCSA will end if one of the terminating events
as set out in the legislation or in the BCSA occurs.

If, at any time, the amount payable under the
child support assessment changes by 15% from the previous assessment, in
circumstances which were not foreseen by the LCSA, either party can ask the
Child Support Agency to end the LCSA.
 

The BCSA can end if the parents agree to end the
BCSA by entering into a Termination Agreement or a new BCSA or LCSA. To do
so, both parties will need to obtain independent legal advice.

Once it has been three (3) years since the LCSA
was entered into, either party can give written notice to the Child Support
Agency to end the LCSA.
 

If both parties do not agree to terminate the
BCSA, either party can apply to the Court for an Order to terminate the BCSA.
There are only very limited circumstances in which such an Order will be
made.
 

If both parties do not agree to terminate the
LCSA, either party can apply to the Court for an Order to terminate the LCSA.
 There are only very limited circumstances in which such an Order will
be made.
 

 

If you would like to receive more information about child support agreements, or if you’re unsure which agreement is right for you, then please contact us or get started online today.
The post Different Types of Child Support Arrangements appeared first on Damien Greer Lawyers.

At Damien Greer
Lawyers, we’re incredibly happy to announce that we’ve become a corporate
sponsor for Pride in Law for 2019/20. As
part of this, we’re very excited to see and support the continued work this
group is doing in providing visible legal education, professional networking
and advocacy in the law.
Who Are Pride in Law?
Pride in Law is
a non-political group that aims to link the LGBTIQ+ legal community and their
allies. They formed as an association in 2017, aiming to bring together the
LGBTIQ+ legal profession across multiple disciplines.
The creation of
Pride in Law was a historic moment because it was the first time in Australian
history that an independent legal association was formed for LGBTIQ+ legal
professionals. Included in the association are those who identify as lesbian,
gay, bisexual, transgender, transsexual, pansexual, queer or intersex – as well
as their allies.
An ally is
typically a non-queer person who supports and advocates for the queer
community. Alternatively, an ally is an individual within the LGBTIQ+ community
that is an ally for another member that identifies differently than them.
What are the Aims of Pride in Law?
Pride in Law
have a number of aims that will all help LGBTIQ+ professionals in the legal
sector. Overall, the association seeks to erase homophobia, gender inequality
and other affronts to individuals, families and communities by educating the
legal community about LGBTIQ+ issues.
They also help members directly and
indirectly as they:
Provide visible legal education by organising
scholarly forums and visible events. Organise monthly lawyer-to-lawyer networking
meetings, monthly socials and quarterly networking events. Collaborate with a wide range of lawyers across
multiple disciplines to confront pressing issues involving the LGBTIQ+
community and their allies.
Why Have We Become Allies of Pride in Law?
11 in 100
Australians are of diverse sexual orientation, sex or gender identity. Even
though the reported number of same sex couples tripled between 1996 and 2011,
and even though marriage equality finally came into effect in December 2017,
those in the LGBTIQ+ community are 3 times more likely to experience
depression.
In addition, 6
in 10 experience verbal homophobic abuse and 2 in 10 experience physical
homophobic abuse. On top of this, 42% still hide their sexuality or gender
identity at social and community events, 34% hide their sexuality or gender
identity when accessing social services and 39% hide their sexuality or gender
identity in the workplace.
We, their
allies at Damien Greer Lawyers, want to change that – not only in the legal
profession, but in the wider community. This is why we have decided to partner
with Pride in Law. In becoming a corporate sponsor for the organisation, we
want to advocate for the rights of LGBTIQ+ professionals and promote the
acceptance of the LGBTIQ+ community.
We are very
excited to see and support the continued work this group is doing for LGBTIQ+
professionals and we’re looking forward to helping them build the community up
and tear stereotypes down.
Learn More About Pride in Law
Since their
inception in 2017, Pride in Law have built a proud legacy and they continue to
make great strides. They are not exclusive to any single area of legal
discipline so, whether you’re a corporate lawyer from a top tier firm, a
criminal solicitor, government legal officer, family practitioner, child
protection lawyer, barrister, judicial officer, or personal injuries legal
practitioner, all allies are welcome. 
To learn more
about Pride in Law, please visit their website or contact them today. If
you’re interested in meeting with them to discuss their ideas, then you can
also attend one of their regular meetings.
The post Damien Greer Lawyers Announces Partnership with Pride in Law appeared first on Damien Greer Lawyers.

Any
separation is incredibly difficult, and can cause a great deal of emotional and
financial strain for all parties involved. However, agreeing on a financial
settlement or parenting arrangements does not have to be difficult, and can be
worked out by agreement/consent.  In this
blog, we’ll discuss some of the simple steps you can take after you’ve told
your partner that you’d like a separation that will help you tackle what can
sometimes feel like an overwhelming task of separating your financial ties and
agreeing on the living arrangements for your children.
Understand your Financial Situation
Ideally,
you should familiarise yourself with your financial position before you decide
to separate.
However,
it is not unusual for one of the parties to the relationship to be more
familiar than the other due to the roles they undertook during the
relationship.  Alternatively, one party
may have more access or control over the parties’ income or assets, making it
more difficult for the other party to understand their financial circumstances
in the post-separation world.
When you
and your partner separate, the Family Law Act 1975 states that both parties
must provide ‘full and frank’ disclosure of their financial position, including
their assets, liabilities and superannuation interests, as well as their
sources of income and/or financial resources.
In order
to ensure your obligations of disclosure are discharged, and to assist in being
transparent and hopefully reaching an early settlement, you should begin to
gather and exchange all relevant financial documentation that is in your
control with the other party. If it is the other party that has the documents
in their control, you should be prepared to make requests for these documents
early on. 
The
documents you should be prepared to provide, obtain copies of or request
include (but are not limited to) the following:
Bank
account balances and statements for the past 12 months, including joint and
individual accounts; Any
superannuation balances; Written
confirmation of any debts or liabilities that are held jointly or separately; Insurance
policies in sole or joint names; Full
details of any assets held in sole or joint names, such as vehicles; Bank
valuations of properties (including residential and commercial properties); Taxation
documents, including tax returns and notices of assessments, for at least the
past 3 years;Credit
card statements for the past 12 months; Personal
loan statements; Details on
investment portfolios; Documents
relating to any inheritances, compensation payments or lump sum payments
received during your relationship; Details
showing any items owned by parties before they began living together
If you
have any of these documents (or anything else you think may be relevant), you
should take a copy of the original and then collate all of your copies, storing
them in a safe location until you pass them to your legal representative and/or
the other party.
If you do
not have access to this information (potentially because your ex-partner dealt
with finances), then you can discuss this with your solicitor who can assist
you in obtaining these documents.
Talk about and agree on (at least) short term living and financial arrangements
You should
also have a discussion with your partner about short term living and financial
arrangements – both with respect to yourselves and the children.
For
example, you will need to decide:
who (if
anyone) is going to move out of the family home;how, when
and where each party will spend time with the children (at least in the short
term);who will
meet joint liabilities and expenses such as mortgages, rent, household bills,
loan repayments, school fees, etc.;whether any
joint assets should be listed for sale (and what the terms of sale should be).  
Meet With a Solicitor
If you are
not able to agree on short term living and/or financial arrangements – either for
yourself or the children –  you should
seek legal advice as soon as possible.
However, even
if your separation with your partner is amicable and you are able to agree on
short term arrangements, you should still seek legal advice so that you can
understand both your legal entitlements and obligations.
It is
highly recommended that this meeting with your legal representative takes place
before you begin to divide assets and liabilities. That way, you can make
informed decisions and take advantage of any taxation benefits that are
available when a settlement is formalised by way of a Court Order or Financial
Agreement.
When
selecting a solicitor to deal with your separation, you should select an
independent solicitor who specialises in family law mattersFa. Your meeting
with your solicitor will remain confidential and, after your initial
consultation, you can decide when you require further advice or help with the legal
separation process.
Consider Mediation and/or Family Dispute Resolution
While
Family Dispute Resolution is a pre-requisite for any court application relating
to parenting matters (that are not orders made by consent and presuming there
are no issues such as domestic violence, urgency or risk of harm/abuse),
parents are not required to attend Family Dispute Resolution if they are able
to reach an agreement about parenting arrangements on their own.
However,
parents are encouraged to attend Family Dispute Resolution to ensure that they
are covering off on all potential issues with respect to parenting matters that
they may not have contemplated without the benefit of legal advice – e.g.
decisions in relation to long term issues such as the children’s education,
religion and health, how holiday time will be shared between the parents, whether
there should be any restrictions placed on interstate or overseas travel and
how parents will reach a resolution with one another in case of a dispute.
Attendance
at Family Dispute Resolution early on can assist parties in thinking about
these issues, reaching an early resolution in relation to same and ensuring
that any formal documents (e.g. Parenting Plans or Orders) provides for it.
While
attendance at private mediation with respect to property matters is not a
prerequisite for an application to the court, parties should be encouraged to
attend mediation, again to reach an early and comprehensive resolution to all
financial issues.
The
success rates of reaching resolution at mediation and/or Family Dispute
Resolution are very high for family law matters and are a fantastic way to
curtail costs and avoid litigation.
Communicate Your Decision to Separate
You should
also communicate your intention to separate with your partner, first and
foremost, to your partner directly. Disputes have arisen with respect to the
date of separation when a party has not clearly communicated their intentions
to their partner, which can have both procedural consequences with respect to
when you become eligible to apply for a divorce and can also have significant
financial consequences.  As such, it is
advisable to consider confirming your intention to separate in writing to your
partner, following your verbal discussion with them.
You should
also discuss with your partner how you’d like to communicate the news of your
separation to family and friends. There is no legal requirement for you to tell
a third party, however, it may assist you to discuss what information you are
going to provide to others to ensure that  you can keep things as amicable as they can
be, which is helpful when it comes to dividing assets.
More
importantly however, you should also discuss with your partner how you are
going to tell the children about your separation. If possible, this should be
done jointly and should always be done in an age appropriate and child focussed
manner. Reassure your children that you and their other parent still love them,
even if you are no longer going to be living together, and that they do not
have to worry about their own living arrangements (i.e. that mum and dad are
going to make all of those decisions together). Try and keep the conversation
as positive and respectful as possible. Answer any questions that they have as
honestly as you can, but do not go into any detail about the reasons for
separation and/or any financial issues.  Remember that you and the other parent are
going to be co-parenting your children, at least until they turn 18 (but
probably a lot longer than that!) – so laying the groundwork for a positive
co-parenting relationship early on will give you the best opportunity to do so.
If you’re considering separation and would like some advice on the process and your unique circumstances, then please contact us to schedule an appointment with one of our experienced lawyers on 3837 5500 or at [email protected].
The post I have told my Partner that I want a Separation. What Now? appeared first on Damien Greer Lawyers.

When you
enter into a marriage or a relationship, the thought of divorce or separation can
seem unfathomable. However, the sad reality is that 1 in 3 marriages ends in divorce or separation. So, while it may feel unpalatable to think about,
it’s very common and practical to consider protecting your assets and/or how
you will divide joint assets in case the worst should happen.
While
conversations of this nature can be difficult to broach, prenups and Financial
Agreements are becoming less and less taboo in today’s culture and climate.
In this
post, we’ll outline some practical strategies as to how you can approach the
situation with your partner, in what can sometimes start out as an awkward
conversation.
Be Clear and Straightforward
Asking for
a prenup can be a sensitive issue and needs to be handled delicately. Even
though you may not want to open the conversation with something as blunt as “I
want a prenup”, you should get to the point relatively early in the
conversation, and communicate your intentions and objectives as soon as
possible.  This will help to lay the
foundations for open and honest dialogue
Be
prepared to answer questions such as why you want to enter into a prenup and
what you are trying to achieve in doing so. Maybe you have been through a
separation before and want to have peace of mind as to what will happen to your
assets if you separate with your new partner. Maybe you have assets that have
been in your family for generations that you and your extended family wish to
protect. Or maybe a prenup is part of your estate plan.
Whatever
the reason, be as clear and honest with your partner about your intentions.
Timing is Everything
When you
mention the fact that you’d like a prenup can make a big difference to your
partner’s reaction as well as to the tone of the conversation. For example, if
you’re both already in the middle of an argument, then it’s only likely to
become a further point of contention. Or, if you’re both ready for bed, you may
be to be too tired and irritable for the discussion. 
Be
sensitive to your partner and consider raising the subject with them in
private.. If you mention it in the presence of your own family and friends, for
example, then your partner may feel like they are being ‘ganged up on ’.
Ideally,
you should both be in a positive frame of mind and have plenty of time to
discuss the matter, as this will give you both the mental capacity and the
scope for discussion required to tackle the conversation in an adult way.
It is also
important that the conversations and/or the timing of the agreement is far
enough away from your intended wedding date or other related events. This is
because agreements can be set aside if one party feels that they were pressured
or placed under duress to enter into the agreement.
As a
precaution, these conversations and the signing of the actual prenuptial
agreement should happen well in advance of any wedding invitations being sent
and/or any major wedding related events taking place.
Reassure Your Partner
One of the
benefits of a prenup, is that both  people
can benefit from asset protection and/or be provided with reassurance with
respect to future financial support.  
For
example, if your partner is going to give up work (e.g. to have children) or
his/her income is going to be negatively impacted in some way due to the
circumstances of your relationship, a prenuptial agreement can provide for how
that person is going to be supported by the other in the event of separation.
This
should be highlighted to them and reinforced as much as possible. Although a
prenup is often first mentioned by one party, the final arrangement can be
mutually beneficial.
You should
also stress that, if the worst happens , the prenup can save you a lot of time
and money while also allowing you to make your own decisions as a couple,
rather than having a court decide who keeps what.
Listen To Their Thoughts and Opinions
After you
tell your partner of your desire to have a prenup, it’s likely that they’ll
have a number of questions not only about why you/they should enter into a
prenup, but what terms are important for them to have included in the
agreement.
In order
for a prenup to be binding in Australia, there are strict requirements that
must be met under the legislation. One requirement is that each party to the
agreement must obtain their own independent legal advice.  
Encouraging
your partner to go to a lawyer early on in the piece will reassure them that
the agreement is not going to be one sided and that they too will have input
into the agreement to ensure their current assets and/or future financial
assets/interests are protected.
Be Prepared to Pause
If your
partner had never considered a prenup as an option prior to you raising it,
then they may initially reject your proposal. To many people, there is no room
in romantic relationships for business like decisions.  However, the reality is that all
relationships have a ‘business side’ to them such as reviewing expenses, making
budgets and making plans to acquire assets.
If these
‘business decisions’ or roles are not clearly defined or discussed from the
beginning, you could be setting yourself up for failure. It is important to be
on the same page with your partner about your expectations and/or how these
decisions will be made, and a prenup can provide for this.  
At some point during your discussions, you and your partner may disagree about what terms should or should not be included in the agreement. It is important to give yourselves plenty of time and space to think about these issues. Pause discussions and reflect on your discussions as much as needed. Then, at a mutually agreeable time, come back and start the conversation again. No matter what stage of your relationship you’re at, conversations about finances and future financial arrangements can be difficult. However, keep in mind that you’re hopefully discussing something you’ll never need to use. That being said, with a prenup in place, you’ll both always know you’re protected in case the unthinkable happens. If you’re considering a prenup for your marriage and would like some legal advice, please contact us at [email protected] or on 07 3837 5500.
The post How do I Tell my Partner I want a Prenup? appeared first on Damien Greer Lawyers.

Mediation
is both a common and (almost always) necessary step for resolving parenting
issues, as the Family Law Act makes it mandatory for parents to meet
with a Family Dispute Resolution Practitioner before initiating court
proceedings (except, for example, in circumstances of urgency or where there is
family violence).
Although
some people initially dislike the idea of seeing, let alone attending mediation
with their ex partner, there are several benefits to doing so, as mediation
allows you the opportunity to reach an agreement with respect to your family
law matter with as much detail and specificity as you require, rather than
leaving matters in the hands of the court and losing control over the decision
making process.
Mediation
can also save you time and money when compared with litigation.
In
this post, we’ll discuss what you can expect from mediation, so you can
properly prepare yourself.
What Will the Mediator Do?
The
mediator, or Family Dispute Resolution Practitioner, as the case may be, is an
impartial and neutral party whose job it is to facilitate an agreement between
you and your ex partner.
The
job of the mediator is to facilitate discussions between the parties involved
and to try and create the grounds for an agreement to be formed and signed.
While the mediator is there to help you, the mediator cannot and will
not pick a side.
Overall,
the mediator will try to keep all of the debate positive and constructive.
Although
they will guide the discussion, they will give you plenty of chance to have
‘your say’ and communicate your proposals for resolution.
Your
mediator will remain independent throughout the process.
As a
result, they will not give you legal advice on anything that’s discussed.
This
is the job of your lawyer or representative, who should attend the
appointment with you.
What Format Will the Meeting Take?
The format of mediation is selected by the parties involved and will largely be dictated by the relationship between you and your ex-partner.
If
you remain on good terms with the other party, then you can stay in the same
room as each other for mediation.
However,
it has become increasingly popular for a ‘shuttle system’ to be used.
In
this model, both parties (usually) start in the same room for the introductions
and the overview of the case, but following this, each party will relocate to a
different room.
The
mediator will then move between these rooms, passing on information, relaying
points and communicating offers.
If
you and your ex-partner refuse to be in the same room as each other under any
circumstances (as can happen in situations of domestic violence or particularly
volatile break-ups), then it is possible to not be in the same room as each
other for any part of the mediation.
However,
you must make this known to your lawyer and the mediator in advance of the
appointment so appropriate arrangements can be made.
What Happens if we Reach an Agreement?
All
mediations are geared towards you and your ex-partner reaching an agreement. If
you do reach an agreement, it is always advisable to document the terms of the
agreement and have it formalised.
While
it is important to document the terms of any agreement reached, you should not
sign any documents at mediation without first discussing them (and their
consequences) with your legal representative.
Your
solicitor can also discuss the best course of action with you for formalising
your agreement and will give you advice as to whether a Parenting Plan or
Consent Order is appropriate for parenting matters and whether Consent Orders
or a Financial Agreement is appropriate for financial matters.
How Should I Prepare for Mediation?
Mediation
sessions are incredibly important, as it is the best opportunity to settle your
dispute without taking court action – which can be expensive, time consuming
and unpredictable.
As a
result, you should prepare thoroughly for the appointment, which should include
meeting your legal representative to discuss possible options for settlement,
what is likely to happen to your matter if you do not reach an agreement, what
options you have for finalising any agreement reached and the costs involved
whether an agreement is or isn’t reached. This will help you manage your
expectations and assist you in making fully informed and/or commercially
considered decisions.
Prior
to mediation, you should speak to your solicitor about preparing an opening
statement for the appointment where you can get across any key points, overall
arguments and things you’d like to discuss (i.e. an agenda). This can be
delivered by either you or your solicitor at the appointment itself.
Before
the meeting, you should also take the time to familiarise yourself with all of
the documents relating to your case and consider some possible areas for
compromise. At the same time, you should consider what your bottom line is,
with costs (emotionally and financially) being considered.
If you’ve been invited to a mediation or are interested in arranging a mediation and require legal advice or representation on the day, please feel free to contact us on 07 3837 5500 or [email protected].
The post What to Expect from your Mediation appeared first on Damien Greer Lawyers.

Separating from your partner is difficult both emotionally and
financially. When you separate, as well as potentially paying any costs
associated with a separation or divorce, you’ll also have to separate your finances and
divide your joint assets.
Make a plan for the interim
If you’ve always operated from joint accounts with your partner, it
might be a good idea to open up a bank account of your own. 
However, until you have finalised your property settlement, you should
be transparent about this and also ensure that doing so will not result in a
default of your obligations (e.g. to meet mortgage payments, household bills
and/or in certain circumstances, to support your partner if they are unable to
do so themselves and have relied on you to do so to date). The same can be said
for any joint credit cards that you hold.
Reaching an agreement with your ex-partner about what financial
obligations you are each going to maintain on an interim basis is key to
assisting in the early resolution of matters.
For any joint loans or debts you have (including mortgages on property),
you and your ex-partner will both remain legally responsible for meeting
repayments, until a final agreement has been reached as to whose name the
property and the mortgage is going to be transferred to (or whether it will be
sold) on a final basis. This is the case even if you are no longer living in
your former matrimonial home. For this reason, it is important that
expectations about who is actually going to be responsible for meeting interim
repayments is agreed from the outset.  
Collect Relevant Documentation
Disclosure and the ability to provide documentation to support the
financial contributions you made during the relationship, is an important part
of the family law process. After you have separated, it is advisable that you maintain
and keep copies of the following:
Your
marriage certificate Your birth
certificate Your Passport
Bank and
super statements for all accounts Insurance
policies Tax
returns Documents
associated with any family businesses
To help you get an overview of your current financial position (and the
financial position of your former partner if you have the information), you can
use the asset stocktake calculator online.
If you need a secure new location for your mail, set up a PO Box or have
it redirected to a family member. Also make sure that you change any passwords
for your email, or set up a new email address to deal with the matter.
Seek Legal Help
You and your ex-partner will need to divide your property, superannuation and other
assets as well as your liabilities.
It is important, for a variety of reasons (e.g. stamp duty concessions,
asset protection, protection from liability, etc) to ensure that any agreement
you reach with your ex-partner is formalised either by way of:
Consent
Orders;A
Financial Agreement; orA Court
Order.
Even if you remain on good terms with your partner, it’s best that you
seek independent legal advice and finalise any agreement you have reached. If
you require help and support with your separation or divorce, or require legal
advice on your situation, then please contact us.
Create a Plan for Income and Expenses
If you’ve never had to look after your own finances before, then you may
find the possibility of doing so overwhelming. For this reason, you should sit
down to work out your finances as soon as possible, including:
Your
weekly or monthly budget (including any debts you’re responsible for) Any
government payments you may be entitled to (you can check here) Any child
support payments you may be entitled to (you can check here) Whether or
not you’re entitled to pay or receive spousal maintenance payments (you can discuss this with your lawyer)
Wills, Insurances and Super
Following your decision to separate, you’ll also need to update all of
your important documents, so your wishes are protected.
Change your will to reflect any new preferences, and update your life
insurance to make sure you’re still properly protected. You may also need to
update your nominated beneficiaries in your superannuation fund.
You may also need to consider updating any powers of attorney.
While this checklist is only a starting point, your lawyer, alongside your financial advisor, will be able to work with you to create a plan for your interim and long term financial security. Should you require any further information about the separation process, or if you require family law financial advice, please contact us.
The post Financial Checklist for Separation or Divorce appeared first on Damien Greer Lawyers.

The High
Court has just handed down judgement in the case of Masson v Parsons (Court pseudonyms)
which concerned sperm donors and their parental status at law.
The outcome
of this case will likely have a profound effect on Family Law matters
concerning artificial insemination.
This case
involved a same-sex couple (Parsons) that were relocating to New Zealand with
their child who was born through artificial insemination. The sperm donor
(Masson) was a friend of the mother who birthed the child. Masson sought to
stop the relocation as he wished to be recognised as the legal father of the child.
The High
Court confirmed the parentage rights of the sperm donor.
The Best
Interests of the Child
In Family
law, there is a presumption that shared parental responsibility is in the best
interests of a child. Accordingly, a child should be given access to both
parents.
The chief
issues considered by the High Court were whether the Commonwealth or State
(NSW) law applied to sperm donors with regards to their legal status as a
parent.
The
Commonwealth law did not exhaustively define whether a sperm donor was a parent
– this would allow for Masson to potentially be found to be the parent of the
child and therefore stop the relocation.
On the
contrary, the State law provided that a sperm donor was presumed to not be a
parent.
The Family
Court initially found that Masson was to be recognised as the father. This was
overturned on appeal to the Full Court of the Family Court.
Definition
of Parent
On appeal
to the High Court, the Commonwealth law prevailed over State law and Masson,
the sperm donor, was recognised as the father of the child. In turn, this
resulted in stopping the relocation by the mother.
The High
Court determined that the definition of “parent” should be interpreted
according to the ordinary accepted meaning of “parent” and that a “sperm donor”
suggests a minimal level of involvement in the child’s life.
In this
case, the father provided his semen to facilitate the artificial conception of
his daughter on the understanding that he would be the child’s parent.
Furthermore,
he was registered on the birth certificate as her parent and provided financial
and general welfare support throughout her life.
These
actions indicated that Masson was undertaking a parental role which therefore
fell into the ordinary definition of “parent”.
This ruling
is limited to sperm donors who demonstrate they meet this definition in cases
where the biological mother did not have a spouse or de facto partner at the
time of conception.
 Impact
of decision going forward
A possible
outcome is that people who have provided sperm, anticipating that they will be
treated merely as sperm donors, may be found to be parents after all.
A court
will now determine their parental status depending on their level of parental
interaction they have had with the child.
They will
consider the parties intention as to parentage at the time of conception, the
amount of time the donor has spent with the child and any other support, such
as financial, that they have provided the child.
If the
donor meets the definition of parent, corresponding obligations such as child
support issues and estate obligations may be created.
Those
considering using artificial insemination should now take care when considering
the amount of contact the sperm donor should have with their biological
children – as the court will consider the child’s fundamental right to both
parents if the donor meets the definition of parent.
The post Are Sperm Donors Legally Recognisable as Parents? appeared first on Damien Greer Lawyers.

Although many people assume that their family law matter will end up in
court, this doesn’t have to be the case, and it can often be in your best interests to
settle your case before this point, saving you time, money and stress in the
process. By settling your case and entering into a Financial Agreement or
Consent Orders, you’re keeping the outcome of your matter in your own hands,
and the process is often far more amicable than if litigation begins.
However, this doesn’t mean that resolving your matter is necessarily
easy, and it also doesn’t mean that you should sign a Consent Order or Financial
Agreement that isn’t right for you. In this post, we will help you understand
when to fight and when to settle your case. 

Set ‘Red Lines’ and Areas for Compromise to Help Make a Decision
Lawyers, like their clients, want matters to be resolved as quickly as
possible in a cost-effective manner.
For this reason, before you begin the process, you should discuss any
limits with your lawyer and let them know what you believe is a ‘just outcome’
for your dispute. In turn, your lawyer will be able to give you advice as to
what your likely entitlements are and what a ‘just and equitable’ outcome might
look like.
Your/your lawyers view of what is just and equitable may be different to
your partner’s/the advice they have received, but by being clear with your
lawyer from the beginning, you can set realistic goals for settlement that you
can both work towards as a team.
Remember that as negotiations progress, you may have to give something
up to get something back. This may involve giving up ownership of one asset in
exchange for another. Alternatively, this might involve settling for less than
you had hoped for in order to avoid the time and costs associated with lengthy
litigation.
So, to give yourself the best possible chance of settling sooner rather
than later, make a list of outcomes you’d be willing to accept beforehand, as
well as things you’re not willing to compromise on.
By setting these ‘red lines’ and preparing in this way, you’ll be better
placed to accept or reject an offer, and you’ll have someone to help advise you
either way based on prior conversations and bearing in mind practicalities
(e.g. what you can realistically afford to do/retain).
Remember though, ultimately the decision is in your hands and nobody can
force you to accept or reject any offer for settlement.
Avoid the Idea of ‘Getting it Over With’
Family law matters can often be mentally draining and emotionally
difficult. Nobody enters a relationship with the intention of it ending, but
sadly, this is sometimes the reality. Once your relationship ends, it’s more
than likely that you’ll just want to ‘get it over with’ and move on with the
rest of your life.
At times like this, it’s easy to give in and give the other person what
they want. However, if you make this decision while you’re still in a stage of
grief or denial, then you’re only likely to regret it further down the line – a
sort of ‘buyer’s remorse’ of family law settlements.
For this reason, before you sign any documentation or consider
responding to or making any offers to or from your former partner and their
legal representatives, you should seek legal consultation about whether that proposal
is right for you.
Ask Your Lawyer for Advice
Sometimes, when you’re in the middle of a family law matter, it can be
simple to slip into a ‘me versus my ex’ mentality. If this happens, it can be
easy to focus more on ‘sticking it to the other person’ than getting a deal
that’s right for you.
Yes, it may be true that you may get slightly more if you go to court.
However, it could be that the other party has made a reasonable offer because
they want to move on with their lives, just as you do.
If your ex-partner makes you an offer, you should consult with your
lawyer immediately. They will be best placed to determine whether the offer
you’ve received is fair and is acceptable. If the offer falls in the realm of
what a court would order, your lawyer will be able to advise you of that and
may encourage you to accept it to avoid further litigating the matter – either
in court or by correspondence.
Analyse the Commercial Sense of Fighting On
When an offer is made and you’re thinking about fighting on, consider
how much you’re reasonably likely to gain from continuing to fight the case
verses how much it will cost you to continue to fight the case, both
financially and emotionally, and in terms of time.
For example, it is not worth fighting over an asset or payment of $20,000
if you are going to spend $20,000 in legal fees to get there.
In instances such as this, it may be worth compromising, unless the item
has a high level of sentimental value, which makes it far more valuable to you
than its commercial price suggests. As a general rule, you should try to avoid litigation at all costs, as
it’s risky, time consuming and expensive. However, ultimately, only you know whether
fighting or settling is the best option for you based on your circumstances and
the advice of your lawyer. If you’re currently going through a separation or
divorce and would like an experienced family lawyer to help with your
situation, please contact us.

The post How Do I Know When to Fight and When to Settle my Case? appeared first on Damien Greer Lawyers.

Co-parenting a child following a divorce
or separation can be incredibly challenging; particularly if the relationship
didn’t end amicably. However, you’ll be pleased to know that there are several
steps that you can take that will not only help make co-parenting easier, but
will also help your relationship with your child. Here are our six rules for
the newly divorced parent:
Acknowledge
Although you may no longer be best
friends with your ex-partner, it’s in your child’s best interests that you stay
on amicable terms with each other.
Although you may no longer be a
couple, you still need to act as a parenting team. Although you should still
have a say in the development and parenting of your child, you also need to
accept that your ex-partner has a say, too. If you can still be amicable and make
joint decisions, you’ll find it simpler to raise a child together and your
child will understand the clear structure they have.
It is important that you acknowledge
your child’s right to spend time with, communicate with and have a relationship
with the other parent.
If a Consent Order or a
Parenting Plan has been used to determine how much
time the child should spend with each parent, then it’s important that you
stick to the plan, as this course of action will save you from any other legal
difficulties while also making your responsibilities to your child clear.
By acknowledging the agreed arrangements and pledging to stick with it, you’ll both have a firm basis for a relationship with your child (and each other) going forward.
Communicate
Communication means learning to
communicate with each other to make joint decisions and address any ongoing
issues about your child, but also letting your child communicate with the other
parent.
You should keep both lines of
communication open as much as possible.
Co-parenting isn’t easy, which is
why communicating regularly is so important.
It’s important to remember that
although divorce is difficult for you and your ex-partner, it’s also difficult
for your child. It’s likely that they’ll have a number of questions about the
divorce process and how it will change their life.
You should answer these questions as much as you possibly can, but as part of your new co-parenting relationship, you should both make sure that you’re happy with the answers provided. At all times, you should avoid being derogatory about the other parent and allow your child to have their own relationship with them.
Teamwork
As part of the divorce or separation,
the way that you, your ex-partner and your child live your lives will
undoubtedly change.
To give your child some structure,
you and your ex-partner should decide on some ground rules for your child
together, as this will give them consistency and will also mean that the two of
you cannot be played off against each other.
While you should be making all major
long-term decisions together, which include:
Education;Religious and cultural upbringing;Health;The name/names by which the child is
known; andAny changes to the child’s living
arrangements that make it significantly more difficult for the child to spend
time with each parent;
You should also work as a team to
decide things like:
Technology usage – when and for how long can technology be used? Homework – when and where must it be completed? Curfews – make sure your child has the same curfew at each home
Respect
You and your ex-partner may not love
each other romantically anymore, but in order for your co-parenting
relationship to work, you do need to respect each other.
Your parenting styles may be
different, but this doesn’t necessarily mean that your ex-partner’s parenting
style is wrong and it’s important that you let them parent in their own way and
respect the day-to-day decisions they make for the child. 
However, if you believe that the way
that your ex-partner is parenting your child contravenes your
parenting agreement or a Consent Order, or if they are making major
long-term decisions for the child without agreement or consultation with you, then
you should raise this as an issue.  If,
on the other hand, the issues that concern you are day-to-day ones, such as
what the child eats, what the child wears, what time they go to bed, or how
they are punished, then provided the child is not being put at harm or risk
then you shouldn’t intervene.
Needless arguing will only alienate
your child, who still needs a solid relationship with their parents in order to
flourish. B
Boundaries
You also need to remember that
you’re not in charge of how your child feels about the other parent. You should
not attempt to influence this relationship in any way or ask them to divulge details
about their relationship or the time they have spent with the other parent. Sure,
you can ask them how their time was and speak to them in a positive way about
what sorts of things they did, but this should not be done in a way that puts
any pressure on the children to be ‘reporting back’ on what they did or didn’t
do while in the other parent’s care.
Co-parenting needs boundaries in
order to succeed, so even if you’re tempted to ask about the other parent or
ask your child for details about them, it’s far better if you ask the other
parent directly. If your child feels like they’re merely being used as a
conduit for information, then they’re less likely to enjoy their time with you.
So, instead, while they’re with you, focus on your relationship with them and
enjoy your time together.
Keep Trying
Co-parenting is not easy and you’ll experience
various ups and downs during the process. However, you should never give up.
Yes, you’ll both make mistakes along the way – you’re only human, and it’s a
highly emotional time – but your co-parenting relationship will strengthen over
time, helping your child get along in the world.
Although it’s undoubtedly difficult,
always remember the greater cause: your child. Once you’ve raised a happy,
healthy child, it will all feel worthwhile. So, above all else, remember that
whatever happens, don’t give up. Your child is depending on you!

Follow these six rules and you’ll find it easier to create a strong and solid co-parenting relationship. If you’re unsure on how to create a co-parenting agreement or would like some advice on your specific situation, please don’t hesitate to contact us on 07 3837 5500 or email [email protected].
The post Six Rules for the Newly Divorced Parent appeared first on Damien Greer Lawyers.

A Family Report is used to provide a
court with an independent assessment of a family law dispute. It offers an independent,
expert view of the issues surrounding the parental dispute, which assists the
court in making a decision about the child’s best interests in resolving the
matter. Here we’ll explain everything you need to know about Family Reports.
Why Are Family Reports Written?
Family Reports are written to assist
parents in dispute about what is in their child’s best interests, or to assist
the Court in determining what is in a child’s best interests if the matter is
being litigated.
A family report writer’s job is to make
observations and recommendations about the future care and living arrangements
that are in the best interests of children in parenting disputes.
A family report writer can either be
appointed by the Court or jointly elected by the parties in the parenting
dispute.
Family Reports are often written in
the hope of helping parties reach an agreement on their family law matter. By
providing an independent assessment of the issues in the case, they can make
unbiased judgements and help judges make decisions about child custody
arrangements.
Who Writes a Family Report?
A Family Report writer is often a Family Consultant who
has been appointed by a court. However, they can also be jointly
elected by both parties in instances where there is a parenting dispute.
A Family Report is prepared and written
by either a psychologist or a social worker. These
people have the relevant skills and experiences of working with children and
families in order to achieve the best possible outcome for a child. As a
result, Family Consultants are recognised as experts in children’s matters.
What Happens Before the Family Report is Written?
After the Family Report writer has
been appointed or elected, they will conduct a series of interviews and
observation sessions. If your matter is in court, the Family Report writer will
also read the affidavit and any other material you and your ex-partner have
filed as part of the case.
Usually, each parent is interviewed
individually and observed interacting with the child. Depending on the
complexity of the case and the number of people involved, others may also be
invited to be interviewed. This includes anyone who will be involved in looking
after the child or may be living with the child, including grandparents or
step-parents.
If appropriate, the child or
children themselves may also be interviewed. However, this is age dependent and
the child must consent to the interview. Where possible, children are
supervised by qualified child care staff in a secure area.
The purpose of these interviews is
for someone independent of the family to gather necessary information and make
an informed decision about the best interests of the child. As a result, it’s
likely that the interviewer will ask you about:
Your background; Your involvement with the child
before the separation; Whether your involvement with the
child has changed following separation, to what extent, and why; The issues associated with your
family law dispute; What you believe will be in the best
interests of the child moving forward; and Whether you believe there are any
risks to the child and/or your response to any allegations that the child is at
risk.
It’s important to note that your
interview with the Family Report writer is not confidential. Anything you say
to them can be included within the final report if it’s deemed to be relevant
material and has been used to form their judgement.
When Will I Receive the Family Report?
In order for you to see a court
issued Family Report, it must first be formally released.
Private Family Reports usually take
around 4-8 weeks to be released.
Once the report is released, it can
only be viewed by you, your ex-partner and the respective lawyers. This means
that it cannot be shown to anyone else, including any of the other people
interviewed as part of the case unless the court gives permission for this.
If you publish the report or
disseminate the information within it, then you’re committing an offence under
the Family Law Act 1975.

What Happens if I Disagree with the Family Report?
With family law matters, tensions
and emotions always run high. For this reason, it’s fairly common for one or
both parties to disagree with the observations or recommendations of the Family
Report.
In instances such as this, it’s
important to understand that the Family Report itself is not legally binding,
and a judge can deviate from its recommendations. The court views the Family
Report as an opinion and it is at the discretion of the particular Judge to
decide how much weight to attach to it.
If you dispute the findings of the
report, and your case goes to Trial, you can ask for the report writer to be
called as a witness in the trial. That way, they are open for cross-examination
on their findings.
There are also a couple of avenues
you can use to make an official complaint about your Family Report, depending
on whether your case is in the Family Court of
Australia or the Federal Circuit
Court of Australia.
As a Family Report can be used by the court to make a decision on child custody matters, it’s important that you fully understand their significance and prepare for any interviews you’re asked to attend. If you would like to obtain a Family Report, receive further advice on what the report entails or even challenge a report, please contact us on 07 3837 5500 or at [email protected].
The post Everything you need to know about a Family Report appeared first on Damien Greer Lawyers.

If you and your partner separate, one
of the toughest decisions you might be faced with is who the children will live
with and/or how much time the children will spend with each parent.
Disputes over the
children’s living arrangements are common. However, while this can be an
incredibly emotionally draining and tense situation, it is far better if you
and your partner can reach an agreement rather than being required to attend court
and have a Judge make these decisions for your family.
By agreeing to the arrangements
together, you’ll know that the decisions you make are in the best interests of
your child or children and for your family circumstances. Plus, by avoiding
going to court, you’ll be able to save both time and money.
In the majority of circumstances, the
agreement that you and your partner make should be formalised. However,
depending on the relationship between you and your former partner, the age of
the children and their attachments to each parent (among other factors), how
you document your agreement can differ.
In this post, we’ll discuss two
different ways that a parenting agreement can be documented: Parenting Plans
and Consent Orders.
Parenting
Plans
A Parenting Plan documents the
parenting and living arrangements for a child. Within the document, which must
be signed and dated by both parties, provisions should be made for where the
child will live, how much time the child should spend with each parent and how
major long-term decisions will be made (also known as parental responsibility).

It’s important to know that,
although useful, a Parenting Plan is not a legally binding document. At any
time, a Parenting Plan can also be replaced by a new one provided that both
parties agree to do so.
Although your Parenting Plan will
not be legally enforceable, should your matter end up in court, it is likely
that the judge will consider the Parenting Plan before making an Order. For
this reason, before you sign a Parenting Plan, both you and your partner should
seek independent
legal advice.
Overall, although they are not
legally binding, Parenting Plans remain a useful option. This is because, if
you and your former partner are still amicable with each other, it allows for
flexibility and for the Parenting Plan to change as your family’s circumstances
change (e.g. as the children get older).  
Additionally, Parenting Plans can
contain provision for child support and maintenance (unlike Consent Orders).
Consent
Orders
Much like a Parenting Plan, a
Consent Order must also be signed and dated by both parties. It must also
contain information about who the child will live with, how much time it will
spend with both parents and how major decisions will be made.
The main difference between a
Consent Order and a Parenting Plan is that once the Consent Order has been
signed by the parties and sealed/approved by the Court, it becomes a legally
enforceable document. As a result, unlike a Parenting Plan, it can be very
difficult to amend or change a Consent Order unless there has been a “significant
change in circumstances” which varies from case to case.
However, if you and your partner are
no longer on speaking terms, or you do not have the trust in each other to comply
with the terms of a Parenting Plan, then a Consent Order is a good option, as
it provides a long-term, legally binding basis for a parenting agreement.
When you’re choosing between a
Parenting Plan and a Consent Order, you should always ensure that you’re
putting your child’s best interests first. By setting your own guidelines and
expectations rather than asking a Court to make a decision on your behalf,
you’ll be able to ensure that the terms any Parenting Plan or Consent Order are
the best outcome for your particular family circumstances.
Should you require any further assistance in understanding the differences between Parenting Plans and Consent Orders, or should you require tailored advice on which may be best for your situation, please contact us on 07 3837 5500 or at [email protected].
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A divorce can be an incredibly
stressful time for anyone involved. All parties want to achieve the best
possible outcome for themselves when their marriage breaks down and, as a
result, dividing assets can be a difficult process.
However, if you receive legal advice
about the options available to you, then you should be able to minimise the
emotional and financial cost of the process. In this blog, we’ll cover what
assets are included in the asset pool, how these assets are valued and how
these assets are divided.
What
Matrimonial Assets are Included in the Asset Pool?
In a family law property settlement,
the asset pool is the total net value of all matrimonial assets. This pool will
include assets, liabilities and superannuation interests in the name of both
parties, in the name of either party and that are under the control of one
party.
Identifying the assets that are
`matrimonial’ or `relationship’ and so available for distribution between a
separating couple is an important and sometimes complex step in a property
settlement. If you and your spouse or de facto partner cannot agree as to what
assets are matrimonial or relationship, the court will have to decide this.
From the outset, it is important to understand that
the usual approach by the court in this regard is to value the
matrimonial/relationship assets as at the date of trial and not as at the time
of separation.
By the time of Trial, which depending on circumstances
may be 18 – 24 months after proceedings have been commenced it is not uncommon
for the value of assets to rise or fall, sometimes significantly.
While the Court will consider the changes carefully
and, if appropriate, attribute such changes as being a contribution, positive
or negative by a party (which may increase or decrease their overall
entitlement), the value of the asset will be taken as at the date of the trial.
This approach does not mean a party can “dispose” of
an asset prior to settlement, in an attempt to remove it from the pool of
assets without consequence. If a party wrongly disposes of an asset following
separation, the court will carefully consider the factual circumstances and may
decide to notionally “add back” the asset and its value, treating that asset as
part of the matrimonial/relationship and will be taken by the person who dealt
with t as part of their share. This is a complex area of law and cases
surrounding it are developing the law regularly.
According to a recent study,
the following ‘basic assets’ are usually divided in a settlement. The most
popular assets and the percentage of cases they were included in are:
Furniture – 100% Cars – 95%Bank and credit union accounts – 81%
House or unit – 77% Other basic assets – 46%
How
are Matrimonial Assets Valued?
Valuing matrimonial assets is
essential for resolving a family law matter. However, it can be contentious.
Here’s how the value of many of these items is determined:
Real Property
Land and homes are usually the
largest value assets shared in a relationship. Often, parties are able to agree
on a value after appraisals from real estate agents. However, it is often
better to obtain an independent valuation by  an expert jointly engaged by both parties,
particularly as the value will be more precise than an appraisal. This is also
preferred by the courts when there is a dispute over value.
Business Interests
An independent expert should always
be used to help parties agree on a value for a business, even if your business
has an in-house accountant. Parties should jointly instruct a specialist
accountant to carry out a business valuation. In some cases, the value of the
business will simply be the value of its assets minus its liabilities. In other
cases, it is far more complex.
Motor Vehicles
A jointly appointed expert can be
used to obtain a true value of a motor vehicle. However, if the value of the
vehicle isn’t that high, it can be simpler to use a website such as Carsales or
Redbook to provide a value range and agree on a price based on this.
Furniture and Jewellery
Family law courts tend to adopt a
conservative approach to valuing furniture and jewellery, which means that they
often use the second-hand value, not the insured or replacement value.
Again, independent valuations can be
used, but you should consider whether this is a worthwhile cost given the
likely value of the item.
How
does the Court Divide the Matrimonial Assets?
If mediation and/or other negotiations fail and
you need go to court to reach a settlement, then the court will make a decision
it believes is ‘just and equitable’ for both parties.
The court will:
Consider the value of the assets after the payment of any remaining liabilities; Consider the contributions made by each party, including: Financial contributions;Non-financial contributions, e.g. repairs to a property or unpaid work in a family business; Contributions as homemaker;Contributions as a parent; Asses the current and future circumstances of the parties in accordance with a list of factors such as:the age and state of health of each of the parties;the income earning capacity or disparity between the parties;the length of the relationship and its effect on each of the parties’ income earning capacities; andwho will have primary care of the children into the future.Determine, in the whole of the circumstances and the adjustments made (percentage wise) to the contributions and circumstances of the parties moving forward, whether the division of assets is just and equitable.
As the court can apply as much
weight to these factors as it believes to be necessary, there is no set formula
for calculating how much each party will receive.
Many couples can resolve their financial issues outside of court but whether you are able to negotiate an outcome yourself or you require a court to do so, you should seek independent legal advice about which approach may be best for your situation and what your likely range of entitlement is. If you would like to discuss your matter and receive advice on the best course of action to suit your needs, then please call us on 07 3837 5500 or contact us.
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Although many
court cases follow existing laws, some cases set new precedents or interpret
the law in different ways. As a result, these cases become historic and
controversial, influencing how we view future cases for years to come. In this
post, we’ll take a look at some of the most famous cases in the history of
Australian law.
Mabo vs Queensland (No 2) –
1992
Mabo vs
Queensland (No 2) is arguably the most famous court case in Australian history.
The case rewrote national land law, recognising indigenous Australians as the
original inhabitants of Australia. It also ultimately led to indigenous
Australians securing an apology from Prime Minister Kevin Rudd.
Overall, the
case took over a decade to reach the final conclusion, allowing indigenous
people across Australia to claim traditional rights to unalienated land.
Chamberlain vs the Queen –
1984
A murder trial
that proved that the truth can be stranger than fiction, this case was one of the
most widely broadcasted murder trials in history.
The case centred
around the death of an infant on a camping holiday. The prosecution claimed
that she had been murdered by her mother, while the mother claimed she had been
taken by a dingo.
In spite of
questionable blood testing, poor eye witness testimony that often backed the
defendant and a forensic scientist who had their evidence overturned in
previous trials, Chamberlain was found guilty.
New evidence
emerged in 1986 that the child may have in fact been killed by a dingo (this
was corroborated in 2012), meaning that Chamberlain was released and eventually
acquitted.
Al-Kateb vs Godwin – 2004
The case of
Ahmed Al-Kateb is arguably Australia’s most famous and controversial
immigration case. Born in Palestine to Kuwaiti parents, Al-Kateb was stateless.
When he was refused a temporary protection visa in Australia, he could not be
returned to his country of origin.
In its ruling,
the High Court decided that he could be detained indefinitely and that it was
lawful to indefinitely detain any stateless person. Huge controversy surrounded
the decision, which led to Immigration Minister Amanda Vanstone reviewing the
cases of 24 stateless people in immigration detention.
In addition,
other countries found this indefinite detention unlawful due to the European
Convention on Human Rights. Al-Kateb was eventually released (alongside others)
and was awarded a permanent visa in 2007.
Waltons Stores (Interstate)
Ltd vs Maher – 1988
This case is a
classic David vs Goliath story, with a rare victory for David. A case of
contract law, it established promissory estoppel as its own cause of action.
This means that even though a contract hadn’t been signed, it could still be
enforced because it was promised.
Although it was
deemed that the Mahers did not have a contract with Waltons (and were left with
a half re-built building), the court found that Waltons owed damages to the
Mahers because they led them to believe that a contract was merely a formality. 
Commonwealth vs Tasmania –
1983
Our final court
case is a constitutional landmark and an environmental victory. The case saw
the Federal and Tasmanian governments clash in the High Court over the
construction of a hydroelectric dam. While the Tasmanian Government believed
that they had a legal right to build the dam, the Federal Government opposed it
under the World Heritage Convention.
The Federal
Government won a 4:3 majority in the High Court, setting not only a new legal
precedent, but also preserving a key piece of Australian wilderness.
These are just a few examples of hugely influential and controversial cases in Australian law. Although the vast majority of cases follow precedents, it’s always interesting to see how the law evolves and is applied. If you have a family dispute or require legal advice, then please contact us today to see how we can help you. You can call us on 07 3837 5500 or email [email protected].
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