When one spouse inherits money after a couple separates, it can be unclear whether or not this inheritance can be included and dealt with in the couple’s property settlement. Should it be considered as part of the asset pool or should it be considered a separate financial resource? We explain everything you need to know about inheritance after separation in Australia.
Inheritance Before, During and After Separation in Australia
Any inheritance received early in the relationship or before a couple starts living together will most likely be treated as an initial contribution to the marriage, therefore, part of the asset pool. If the inheritance was received during the relationship, chances are the benefactors’ intentions was for the funds to benefit both spouses; for example to be put towards renovating a home, or for a holiday. In these two instances, inheritance would generally be treated as a monetary contribution to the shared asset pool.
It is a general rule that inheritance received late in the relationship or after separation will not be viewed as a contribution to the shared asset pool. However, each matter is dealt with case-by-case, and certain circumstances may lead to both spouses receiving funds. For example, if the benefactor was the wife’s father and the husband had a close relationship with the father-in-law and even cared for him during the illness, the Court may find that both parties are entitled to the inheritance. Should one party receive inheritance after separation, this property may be considered a financial resource rather than an asset. This means is that the inheritance should not be included in the total asset pool to be divided.
Asset by Asset vs Global Approach
The Court mostly adopts a “global approach” to property settlement by pooling all the property, valuing it and then dividing it. However, the Court may also adopt the “asset by asset” approach, meaning the inheritance will be considered a financial resource and separate from the other assets. This approach is more complex than the “global approach”, and is rarely taken. The “asset by asset” approach may be used if the inheritance was received later in the relationship, after separation or if the relationship was short and both parties kept their assets separate.
Holland vs Holland
While it may seem that inheritance is relatively safe when received after separation, there have been cases in Australia where inheritance has been ruled as a joint asset.
In the case of Holland vs Holland from 2017, the husband and wife were married for 17 years before deciding to separate. The husband received an inheritance amount of $715,000 five years after separation, but prior to the divorce. The trial judge excluded this inheritance from the pool and treated it as a “financial resource”. However, the wife appealed this decision, stating that this amount should be included as an asset and divided accordingly. The Court granted the wife’s appeal, stating that it was incorrect to deem the inheritance as a financial resource of the husband only.
This case illustrates the importance of finalising financial matters as soon as possible after separation.
Speak to a Lawyer About Your Inheritance After Separation
If you have recently separated from your spouse and you believe you are entitled to an inheritance received after separating, we do recommend seeking legal advice immediately. Contact us to speak to our lawyers and find out how we can assist you with dividing inheritance in you property settlement.
The post Is Inheritance After Separation in Australia Safe? appeared first on Emerson Family Law.

Declaring bankruptcy can have a significant impact on family law disputes, and it is not uncommon for the Family Court and Federal Court to deal with the bankruptcy of a party to a de facto relationship or marriage. Bankruptcy combined with divorce or separation can be an extremely stressful and emotional experience. Each case can be quite complex. So how does bankruptcy affect family law issues?
What is Bankruptcy?
The Bankruptcy Act 1966 defines the term as a person:
“a) against whose estate a sequestration order has been made; or
b) who has become a bankrupt by virtue of the presentation of a debtor’s petition.”
To become bankrupt, a person may either lodge an application, or a creditor can petition for that person to become bankrupt. When a person is declared as bankrupt, a trustee will be assigned to take over all financial affairs by managing assets and paying creditors. Categories of assets excluded include superannuation, a motor vehicle up to a certain value and most household goods.
Bankruptcy can occur in any of the following family law matters:

Marriage;
De facto relationships;
Separation/divorce; or
Negotiating property settlement;

Under section 79 of the Family Law Act, three types of property of the marriage will likely be dealt with by the Court include the bankrupt’s property vested in the trustee, the bankrupt’s property which does not vest in the trustee, and the non-bankrupt spouse’s assets.
Bankruptcy and Family Law
Substantial amendments were made to the Family Law Act and Bankruptcy Act 1966 in 2005, in order to improve the process between bankruptcy and family law.
These amendments grant the Family Court to deal with proceedings for property settlement and spousal maintenance where the non-bankrupt spouse may obtain a share in vested assets of the bankrupt. Section 79 of the Family Law Act outlines that the Court has the power to adjust property interests between spouses, regardless of whether or not that asset is held in a sole name. For instance, if a matrimonial home is held in the bankrupt spouse’s name, the Court may come to the conclusion that it is a joint matrimonial property, and that the non-bankrupt party’s interest in the property must be protected. Under section 79, the trustee may also apply to the court to be joined as a party to the family law proceedings.
Section 75(2) of the Family Law Act sets out numerous factors that may be taken into account by the Court when deciding the distribution in property settlements and maintenance. The court must have regard to the effect of any proposed spousal maintenance order on the ability of the creditor of a party to recover the creditor’s debt.
Section 58(5A) of the Bankruptcy Act states that “nothing in this section shall be taken to prevent a creditor from enforcing any remedy against a bankrupt, or against any property of a bankrupt that is not vested in the trustee of the bankrupt in respect of any liability of the bankrupt under (a) a maintenance agreement, or (b) a maintenance order”. What this means is that the bankrupt person can be pursued for child support debt and payments, regardless of the financial status.
Rights of the Non-Bankrupt Party
In a situation where one party is bankrupt and the other is not, the non-bankrupt party to a de facto relationship or marriage can make an application to the Family Court for an injunction. The injunction’s purpose is to restrain the trustee from declaring or distributing assets or property amongst the bankrupt party’s creditors before a property settlement matter is resolved. The Court then will decide who has priority rights to the property – the creditors or the non-bankrupt spouse.
Five Step Process for Property Settlement
To determine property settlements, regardless of whether a party is bankrupt, the Court applies the following five step process:
1. Determine and value the parties’ property;
2. Determine if it is ‘just and equitable’ to make an order altering the parties’ existing interests;
3. Assess the parties’ financial and non-financial contributions to property and the welfare of the family;
4. Consider the future needs of the parties outlined in section 75(2) of the Family Law Act; and
5. Determine that the order to be made is just and equitable.
The Court must also take into account the effect of any proposed property settlement order on the ability of the creditor to recover the debts from the bankrupt party.
Speak to a Lawyer About Bankruptcy and Family Law
Whether you are the bankrupt or non-bankrupt party, it is essential to acquire legal advice and representation, particularly when it comes to bankruptcy and family law matters such as child or spouse maintenance. Our team at Emerson Family Law are highly experienced in dealing with children’s matters, divorce & separation and property settlements. Please get in touch to see how we can help you.
The post Bankruptcy and Family Law: How Does One Affect the Other? appeared first on Emerson Family Law.

Co-parenting is when two parents work together to help raise a child after a separation or divorce, with each parent taking an active role in the child’s life. While co-parenting after divorce can be a challenging prospect for parents, it is an excellent arrangement in terms of providing your child with a stable, supportive environment as they come to terms with the divorce and move into the future.
The nature of your relationship with your ex-partner when co-parenting is likely to have a strong impact on your child. Research has found that a functional co-parenting arrangement has a positive impact on children’s psychological adjustment post-divorce, meaning that they are more able to cope with their updated familial situation in a healthy manner.
Here, we share our tips for successful co-parenting after divorce:
Create a Clear Co-parenting Arrangement
When embarking upon co-parenting after divorce, it is important to create a clear parenting arrangement, which can include details such as:

Where the children will live;
When the children will spend time with each parent;
Where the children will attend school;
How the children will be financially supported

If both parties agree on a parenting arrangement, it is advisable to create a parenting plan or a consent order. A parenting plan is a written agreement outlining your care plan, which does not have to be witnessed and is not legally enforceable. On the other hand, a consent order is a legally binding agreement (or parenting plan) which requires approval by the court.
If you and your ex-partner are unable to agree on a parenting arrangement, you can apply to the court for a parenting order which is legally enforceable. There are numerous considerations the court will take into account when ruling on a potential parenting order, including what is in the child’s best interests as well as any potential family violence issues.
It’s worth noting that people who play an important role in a child’s life who may not necessarily be parents, such as grandparents or other relatives, can also be included in parenting plans.
When creating a parenting plan or consent order to approach co-parenting after divorce, you should seek appropriate legal advice in formulating the arrangement.
Try To Set Your Emotions Aside
Divorce often entails a rollercoaster of emotions, as both parties experience stress, exhaustion and anger. The process of separation can be draining and complicated, so it is completely natural to feel frustrated and highly emotional in the period following a divorce.
However, when it comes to successful co-parenting after divorce, it’s important to not let your behaviour be dictated by negative emotions and instead to focus on what’s best for your child. Remember that your child’s wellbeing is your priority, and you should not let grievances between you and your ex-partner lose make you lose focus of that goal.
As tempting as it may be, avoid venting your frustrations about your ex-partner to your child, or putting your child in the middle of an ongoing conflict between you and your ex-partner. Your child should not feel like they have to ‘choose’ between parents in a conflict.
Work with Your Ex-partner as a Team
After a divorce, it is common for there to be some acrimony in the air. Divorces can be painful proceedings, and the thought of working together with your ex moving forwards might seem like the last thing you want to do.
Despite this, it is important for the sake of your child’s wellbeing that you develop a cordial relationship with your ex-partner which allows you to work in tandem to create a stable and nurturing environment for your child.
Bear in mind that divorce can entail the risk of behavioural issues for affected children, as well as potentially causing your child stress, anxiety and confusion. Obvious conflict when it comes to your co-parenting after divorce will only increase this stress for your child, so you should establish clear and peaceful communication patterns with your ex-partner which allow you to act as true co-parents.
Keep each other in the loop when it comes to important issues concerning your child’s wellbeing such as medical problems, and know when to compromise when it comes to potentially smaller issues such as bedtimes.
Be flexible, take your ex-partner’s opinion seriously and develop a relationship based on respect and a shared commitment to your child’s mental and physical health.
Speak To a Lawyer About Co-parenting After Divorce
A co-parenting arrangement will have a direct and lasting impact on your child’s wellbeing, so you should contact a lawyer to ensure that your parenting plan guarantees the best chance of a positive outcome for your child.
At Emerson Family Lawyers, our team is experienced with matters concerning divorce and co-parenting, so if you are evaluating a co-parenting situation, contact us and let’s discuss your options.
The post Our Tips for Successful Co Parenting After Divorce appeared first on Emerson Family Law.

There is often confusion concerning what it means to be in a de facto relationship in Australia. Many people are unsure as to when a relationship is legally considered to be de facto, as well as the potential legal considerations that can accompany the breakdown of a de facto relationship.
Here, we answer some common questions regarding being in a de facto relationship in Australia:
What is a de Facto Relationship in Australia?
The Family Law Act 1975 defines a person as being in a de facto relationship with another person if:
a) The persons are not legally married to each other; and
b) The persons are not related by family; and
c) Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
This applies to both heterosexual and same-sex couples, and may even apply to people or couples in multiple partnerships simeltaneously.
While this definition may seem straightforward at first glance, the concept of a ‘genuine domestic basis’ is one that can be assessed according to a variety of considerations.
Often the definition of what constitutes a de facto relationship can require the court to make a determination, particularly in the event of a separation where one person may contest the legal nature of the prior relationship.
How Do Courts Determine if a de Facto Relationship Exists?
When a court considers whether a couple should be considered to be living together on a ‘genuine domestic basis’, they will consider factors including:

The duration of the relationship
Whether a sexual relationship exists
The degree of mutual commitment to a shared life
The existence of any children
Whether one partner is financially dependent on the other
The reputation and public perception of the relationship

Typically, in order to convince a court that you were previously or are currently in a de facto relationship in Australia, you will need to prove that you have lived together with your partner for at least two years, although if there is a child in the relationship the court may overlook this requirement.
By assessing these and other factors concerning the relationship, the court will decide whether your relationship should be legally defined as de facto. It’s worth noting that there is no specific factor which the court necessarily gives more weight to than any other, and that each case of determining de facto status is examined on its own merits.
What are the Legal Implications of Being in a de Facto Relationship in Australia?
People who are part of a de facto relationship in Australia have similar legal rights and responsibilities to those of people in marriages. For example, if your de facto partner dies you may be entitled to a share of the intestate estate or financial assistance under the Succession Act, as well as potential social security or worker’s compensation (if your partner died during employment).
The separation process in de facto relationships is also similar to that of marriages, and as such will entail considerations such as:

Division of property
Living arrangements of any children
Potential child support or spousal maintenance claims
Will and estate plans

The imprecise nature of determining de facto status means that upon the breakdown of a relationship, parties may argue about whether the relationship was de facto or not, and how long the relationship lasted. In fact, it is completely possible that you may have been involved in a de facto relationship without even realising or considering it.
If you are trying to prove that a relationship was de facto, evidence which can be presented to a court can include items such as:

Text messages and emails between the parties
Statements from family and friends about the relationship
Bank statements
Photos of the couple on social media
Whether a partner has been listed as a spouse on tax returns

If you are separating from a relationship and are unsure if it was de facto, or are seeking to make a financial claim against an ex-partner which entails proving that the relationship was de facto, it’s wise to seek proper legal advice.
Can a de Facto Couple Register Their Relationship?
It is possible for a couple involved in a de facto relationship in Australia to formally register their relationship with the government. This will mean that your relationship will be termed a ‘civil partnership.’
Registering a civil partnership means that you will never be required to provide any further proof of your relationship, making it easier for you to organise things which may request proof of a relationship such as superannuation, government payments and tax.
Speak to a Lawyer About Being in a de Facto Relationship in Australia
If you are about to start living with someone and want to create a financial agreement to help secure your future, or you are separating from a relationship and want to know whether it could be legally classified as de facto, our lawyers at Emerson Family Law can help. Contact us and we can discuss your relationship and any legal concerns or queries you may have.
The post Am I in a De Facto Relationship in Australia? appeared first on Emerson Family Law.

Under the Family Law Act 1975, children have a right to a meaningful relationship with both parents, especially if their parents are separated or divorced. It is presumed that once a couple separates, they will share equal parental responsibility of their children. However, there are instances where sole parental responsibility can be obtained.
What is Sole Parental Responsibility?
Sole parental responsibility means that one parent has complete responsibility for the major long-term decisions of their children until the age of 18 years. Under Section 4 of the Family Law Act 1975, major long-term decisions include the child’s:

Education (current and future);
Religious and cultural upbringing;
Health;
Name; and
Living arrangements.

It is important to note that it is not the same as child custody and does not mean the other parent cannot spend time with their children. Sole custody means a parent wants to have sole parental responsibility and sole care of the child.
How Does it Differ From Equal Shared Parental Responsibility?
Under the amendments to the Family Law Act 1975 in 2006, it is presumed that each parent has equal shared responsibility once they separate. Both parents must make a genuine effort to consult the other parent when making these long-term decisions. It does not mean that both parents will necessarily be allocated an equal amount of time to spend with their children.
There is no need for consultation in day-to-day activities such as the child’s bedtime; in this instance, it is up to the parent who has the custody of the child that day to make these decisions.
The presumption of shared responsibility also does not apply in every situation. Some of the reasons why this may not apply include instances where:

A parent has abused a child or any other child in the parent’s family or the family of the other parent.
A parent has been violent or used threatening behaviour to a family member of either parent.

The court must see evidence that it would not be in the best interest of the child to receive equal shared responsibility.
How to Get Sole Parental Responsibility?
The court is generally reluctant to grant sole parental responsibility. However, there are some circumstances where it may be granted.
The court may grant sole parental responsibility if the parents cannot communicate effectively, or they have conflicting views on certain issues – for example health and education. What the court can do is order sole responsibility specifically for these matters.
The best interests of the child will always be a priority to the court. With that in mind, the need to protect any children from physical and psychological harm or exposure to abuse and violence is also a primary consideration. The court may choose to give greater weight to this consideration over a relationship with both parents. Therefore, if one parent is causing harm to the child – physical or psychological – the court will order sole parental responsibility as the solution.
For the Court to provide sole parenting to one parent, that person must provide the Court with full details on all matters relevant to their claim against their former spouse. These details may include any police reports or witnesses to physical or psychological harm and evidence of a total communication breakdown between the parents.
Speak to a Lawyer About Obtaining Sole Parental Responsibility
If you believe that you’re in a situation that requires you to obtain sole parental responsibility, we highly recommend you seek legal advice and representation. Contact us to speak to our lawyers and find out how we can assist you with your sole parenting application and represent you in court.
The post What is Sole Parental Responsibility and How Can You Obtain It? appeared first on Emerson Family Law.

After separation, it is common for children to spend time at each parent’s separate residences. Some ex-couples choose to live relatively close to each other, however, there are instances where a a parent may wish to move a significant distance from the other parent, or, in other instances, move to another city, state or country for work opportunities. When a parent moves with their child to another city, town, state or country, this is referred to as “relocation”. The decision to relocate with children can have a huge impact on the child’s current routine as well as their relationship with their other parent and important relatives. We share what you need to know about child relocation and the law in Australia.
Consent to Relocate
The Family Law Act does require the relocating parent to speak to the other parent and obtain their consent to the relocation. If the other parent is agreeable to the move, it is best to make arrangements as to when the child can see that parent once relocated. For example, the agreement could be for the child to spend school holidays with the other parent.
However, if the parent does not agree to the child relocation, then it cannot occur and a court order must be obtained to allow the move. If the move occurs without the consent of the other parent, the court may require the parent to return with the child until a decision has been made by a court at a hearing.
If the parents cannot agree, the relocating parent can ask the court for a parenting order with a provision for the child to relocate. The other parent can also ask for an order to the stop the relocation. However, the court may not grant the relocation, especially if it is not in the best interests of the child.
The Court’s Considerations for Relocation
Like all children’s matters, the court will always consider what is in the best interests of the child. Under section 60CC of the Family Law Act, some considerations include:

the benefit to the child of having a meaningful relationship with both parents;
the need to protect the child from physiological and psychological harm;
the child’s views;
the child’s relationship with the parents and other important family members.

The court may also look at the distance and the permanency of the relocation, the impact the relocation might have on other aspects of the child’s life, such as school, hobbies and friends, and ways the child can maintain a relationship with the other parent.
Relocating Without Consent
Under the Family Law Act 1975, when a couple with children separates, they automatically share parental responsibility. This responsibility includes the ability to make decisions regarding the child’s long-term welfare, including living arrangements.
If a parent decides to relocate with their child without obtaining proper consent or a court order to approve the relocation, the other parent may seek a recovery order. Under section 67Q, a recovery order requires a child to be returned to either the parent of the child, the person who has a parenting order, or the person who has parental responsibility of the child. This person is usually the other parent. When a recovery order is granted by the court, they will then make an order authorising or directing another person to find, recover and deliver a child. In most cases, this will be the Australian Federal Police.
Should a parent choose to relocate their child to another country without consent, this may be considered child abduction and the Hague Convention may apply. Many countries, including Australia, are a party to the Hague Convention. The purpose of the Hague Convention is to promptly return a child who has been relocated without permission to their country of origin, although the application of the convention is not streamlined in each country. However, if child relocation occurs out of Australia to a country who is also a party to the Hague Convention, the parent will be able to make an application to obtain access to their child.
For more information about child abduction, international relocation or relocation without consent, please reach out to our family lawyers.
Contact Us For More Information About Child Relocation
Child relocation in Australia can be a complex situation, especially if the child is relocated overseas. If you are after legal advice or representation with your parenting matter, please get in touch with Emerson Family Lawyers, and we will talk you through your options.
The post Child Relocation in Australia: Here’s What to Know appeared first on Emerson Family Law.

It’s a common question that we receive here at Emerson Family Law. As Covid-19 continues to affect our lives and the Australian economy, a concern for many people, is the effect on the value of assets and “property”, such as houses, shares and superannuation.
For those in the middle of the divorce process, a common concern is if and how their property settlement in Australia might be affected by the global pandemic. There’s still a lot of uncertainty surrounding the financial aspects of separation, so here’s how we think Covid-19 might affect your property settlement.
Family Law Act
In family law, ‘property’ wide refers to a wide range of assets, such as your home, any savings, and your superannuation. It can include things like cars, business interests and even inheritances. It also includes any debts and liabilities you have.
There are general principles the court considers when deciding financial disputes after the end of a marriage or de facto relationship according to the Family Law Act 1975 (see Sections 79(4) and 75(2)) or a de facto relationship (see Sections 90SM(4) and 90SF(3)). These general principles include:

What each party has and what they owe (assets and debts);
Indirect financial contributions by each party (inheritances from families);
Direct financial contributions by each party (wage or salary earnings);
Non-financial contributions such as caring for children;
Future requirements post-separation, for example, health, the ability to earn and care of children.

Section 79(5) of the Family Law Act (married couples) and Section 90SM(5) (de-facto partners) explains that the Court has the power to grant adjournment for property settlement proceedings in Australia if:

There is likely to be a significant change in financial circumstances of either parties, considering the time when the change is likely to take place.
The Court could make an order in relation to the property of the parties if the significant financial change is more likely to do justice that if the Court were to make an immediate order.

This could potentially apply to significant financial loss as a result of Covid-19.
Valuations
One of the first steps in any property settlement in Australia is a valuation.
A valuation involves identifying the assets that are available to be divided between the parties and determining the value of these assets.
Valuations prepared before Covid-19, perhaps even as recently as January 2020, may be considered redundant or inaccurate due to changes in the economy. The same goes for valuations prepared during or after Covid-19. These valuations may be disputed as it might be difficult to predict future earning potentials or cash flow.
Since part of the process of a property settlement in Australia is considering the future financial needs of each party, including earning capacity, a loss of income has the potential to impact on the final decision. This loss of income could affect a person’s ability to pay any existing or future spousal maintenance and child support payments.
If you are planning on negotiating a property settlement very soon, we do recommend obtaining updated valuations and to factor in the current and ongoing economic impact of Covid-19. We do predict that valuations may become more complex over time, and issues may arise due to the uncertainty in this economic climate. It may be worth holding off on any property settlement discussions during this time if you are able to. Please seek legal advice before making that final decision.
When it comes to whether to go ahead with any potential business valuations, this really depends on the industry that business is in. There are some industries that have experienced a significant increase in revenue during this time, while others have experienced severe income loss, resulting in office closures and staff being let go.
Superannuation Splitting
Superannuation splitting laws allow superannuation to be divided when a relationship breaks down. Many people have seen their superannuation funds plummet as a result of the global pandemic, resulting in a smaller sum to be split between parties. Some have also made early withdrawals of up to $10,000. It is uncertain whether or not this early release of superannuation will be considered as an addition into the property pool; it could very well be argued that this early access amount should be considered part of the property settlement inclusions.
In the current climate, rather than splitting superannuation in terms of dollar figures, it may be preferential to divide in terms of percentages. This way, if any other significant changes occur in the superannuation accounts, the intended percentage split is retained.
Former Family Home
The same goes for shared property in the form of a family home or investment property. There is a risk of selling a home and not reaching the anticipated value. The best option is to divide the sale proceeds between the parties by way of a percentage split – whether that’s 50/50 or some other agreed percentage. However, you should seek financial advice from a professional as to whether this is the best time to sell your property.
Other Property Considerations
Covid-19 may also affect the value of common assets like vehicles, artwork, inheritances and shares. It might be best to take a similar approach to your superannuation and family property, and split the total value of these assets by a percentage.
Discuss Property Settlement in Australia With a Qualified Lawyer at Emerson Family Law
While the full economic effects of Covid-19 are still unfolding, it may be worth considering putting your property settlement negotiations on hold. However, if you decide to continue, we do recommend seeking legal advice from a lawyer. Our team here at Emerson Family Law is experienced in family law issues including divorce, separation and property settlements. We also offer collaborative law and mediation services, which offer a private, more cost-effective and generally more efficient pathway of negotiating property settlements in Australia during this time. Please get in touch to learn more about your options for dealing with family law issues during this time.
The post How Will Covid-19 Affect Your Property Settlement in Australia? appeared first on Emerson Family Law.

On Wednesday 29th April, 2020, the Family Law Court in Australia saw the establishment of the Covid-19 List (also referred to as a Joint Practice Direction): a list dedicated to dealing with urgent family law disputes that may have arisen as a result of the Covid-19 pandemic.
During the months of March and April this year, the courts saw a 39% increase in urgent parenting applications in the Family Court, and a 23% increase in the Federal Circuit Court. Here’s everything you need to know about how this Joint Practice Direction applies to urgent family law matters in Australia.
How Does it Work?
The Covid-19 List is managed by the National Registrars, who will assess whether or not an application meets the required criteria in order for a matter to be dealt with electronically.
Applicants must first fill out an application and submit it alongside a supporting Covid-19 affidavit of no more than 6 pages, a cover letter outlining that the matter is urgent, and a Notice of Child Abuse, Family Violence or Risk of Family Violence (only if applicable). To find out what else must be included with your application, speak to our lawyers.
An application must meet the following criteria as set out by the family law court in Australia.

It must be filed as a direct result of Covid-19;
The matter is urgent;
It must be accompanied by an affidavit;
The applicant must have made reasonable attempts to resolve the dispute without being successful (if safe to do so); and
The matter can be dealt with electronically (i.e. by telephone or video conferencing)

The affidavit must meet the following criteria:

Outline why the matter is urgent;
Explain how the dispute arose as a result of Covid-19;
Explain any risks of harm to children or parties;
Describe what reasonable attempts have been made to resolve the dispute through negotiation, and why it wasn’t safe to do so; and
Propose how the other party can be provided with a copy of the court documents.

Applications that meet this criteria will be given a first return date (a date for the first time the parties will appear before the Judge in court) within 3 business days of the application being assessed. If the matter is critically urgent, the first return date will be less than 3 days. An issue may be dealt with via a virtual hearing before a Judge, a virtual hearing before a Registrar, or an electronic family dispute resolution or mediation session with a Registrar.
Should the application not meet the criteria set out above, applicants will be notified and the matter will be sent to the nearest Court for processing. The first return date may be 4 to 6 weeks from filing the application.
Potential Applications Suitable for Filing
The family law court in Australia may accept the following application examples:

There has been increased risk of safety due to a family violence issue. This must be a result of the Covid-19 pandemic;
Current parenting arrangements involve supervised contact where the allocated supervisor is unable to perform their role, and the parties cannot reach an alternative agreement;
The parties live in different States or Territories and the child cannot travel between residences due to current border restrictions;
Either the parties or the child have tested positive to Covid-19 and cannot fulfil their parental obligations.

Make an Application to the Family Law Court in Australia
If you believe your situation meets the criteria above and you require urgent action, seek legal advice first before starting your application to the family law court in Australia. Our team can help you with your application as well as provide legal representation if your application is successful. Please get in touch to see how Emerson Family Law can help you through these unprecedented times.
The post The Covid-19 List and Family Law Court Australia appeared first on Emerson Family Law.

Recent restrictions imposed by the ongoing COVID-19 pandemic indicate increased cause for concern when it comes to the safety and well-being of those experiencing domestic and family violence. This was highlighted by a Monash University study of family violence victim support practitioners, which found that almost 60 per cent of practitioners said the pandemic had increased the frequency and severity of violence against women.
Domestic and family violence can manifest in numerous ways, from physical violence to veiled emotional and psychological abuse. Such violence can be experienced both directly and indirectly.
If you are a victim of family or domestic violence, it is common to feel trapped by your circumstances, but it is important to realise that there are legal protections you can obtain such as a Domestic Violence Order in Qld to help protect you and your children from domestic violence.
Defining Domestic Violence
Domestic and family violence has been identified in Queensland’s Domestic and Family Violence Protection Act 2012 as encompassing behaviour that:
(a) is physically or sexually abusive; or
(b) is emotionally or psychologically abusive; or
(c) is economically abusive; or
(d) is threatening; or
(e) is coercive; or
(f) in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else
These behaviours can have a devastating impact on children living in affected households. According to legislation, a child is considered to be exposed to domestic violence if the child sees or hears domestic violence or otherwise experiences the effects of domestic violence.
The Australian Bureau of Statistics’ (ABS) 2016 Personal Safety Survey (PSS) found that one in six women (16% or 1.5 million) and one in ten men (11% or 991,600) aged 18 years and over experienced abuse before the age of 15. The study also noted that one in ten men and one in eight women had witnessed violence towards their mother by a partner before the age of 15.
Legal Protection from Domestic Violence
A Domestic Violence Order in QLD (DVO) can be a powerful tool for protecting yourself and your children from ongoing domestic abuse.
A DVO is an official document issued by courts to stop threats or acts of domestic violence by explicitly setting out conditions that must be subsequently obeyed by the person who has committed the violence (the Respondent). Protection orders enforce that the Respondent must not commit domestic violence against the victim (the Aggrieved) or any other person named in the Order, including children.
Courts are able to make a Domestic Violence Order in QLD if a relevant relationship exists, the Respondent has committed domestic violence against the Aggrieved and the DVO is considered necessary or desirable to prevent further domestic violence from occurring. Disobeying the order is a criminal offence. If any condition of the order is broken by the Respondent, then the Aggrieved may contact police who may charge the Respondent with an offence.
Get Expert Advice on Protecting Your Children via a Domestic Violence Order in Qld
If you are fearful for your safety or the safety of your child, contact Emerson Family Law over the phone at (07) 3211 4920 and make us aware of your situation. Our team is qualified in areas concerning family violence and are sensitive to the unique requirements of every family violence situation. We can make an application for a Domestic Violence Order in QLD on your behalf, and help protect you and your family from family violence.
The post How to Protect Your Children with a Domestic Violence Order in Qld appeared first on Emerson Family Law.

Undoubtedly, COVID-19 has affected us all, especially if you are (or you know of someone who is) at risk of domestic and family violence, especially with the need to self-isolate or social-distance, which may increase the risk of abuse. Remember – domestic and family violence is not just “physical.” It can include any of the…

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For parenting matters and child support payment issues, a mother may wish to request a court ordered paternity test to confirm the biological father of the child. In some instances, a father may also wish to prove that he is the biological father, and sometimes, prove that he is NOT the biological father. If you…

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Step parent adoption in Qld is organised through Adoption Services Queensland. Adopting a step child is a legal process whereby a step parent becomes the permanent adoptive parent of their spouse’s child/children. It is a very serious decision that the courts do not take lightly and can be a complex process. We are going to break down the process of adopting a step child in Queensland.
Who is Eligible?
Step parent adoption is mostly regulated by the Adoption Act 2009 (Qld). Under section 92 of the act, to be eligible to adopt a step child, the step parent must:

Be the spouse of the parent of the child;
Have resided with the spouse and child for at least 3 years;
Have obtained leave under the Family Law Act 1975 (Section 60G);
Be over the age of 18;
Be an Australian citizen (or the spouse must be an Australian citizen);
Reside in Queensland; and
Be adopting a child that is at least 5 years old and has not yet turned 17.

Due to the seriousness of the decision to adopt a step child, section 60G of the Family Law Act 1975 states that the Family Court must grant leave for adoption proceedings to commence. This means that the step parent must seek the Court’s permission to make an application to adopt the step child, and the Court must consider the child’s best interests before making the decision.
Consent for Adoption
Before the application for step parent adoption can be assessed in Qld, both parents of the child must consent the adoption. This means that the child’s non-custodial parent must also agree to the step parent adoption.
The Application Process
Once the step parent has been granted leave by the Family Court and consent from both parents of the child, they then must complete an Application form and send it to Adoption Services.
These applications are carefully assessed by Adoption Services. Adoption Services outline potentially required information for the assessment including:

Criminal or domestic violence history
Information about the step parent’s health
Home visits for assessment interviews
Talking with the step parent, spouse, children and any other nominated referees.

The step parent must pay an assessment fee before their suitability can be assessed. Once their suitability is approved, Adoption Services will prepare and create a suitability report for the Children’s Court of Queensland.
Is Adoption Necessary?
As previously mentioned, step parent adoption in Qld is a very serious, permanent legal process and decisions are not taken lightly.
Many custodial and non-custodial birth parents build caring and legally-secure relationships without going through the official adoption process.
These relationships might be formalised through legally changing the child’s last name, securing their inheritance rights (for example, parents or grandparents can make provisions in their wills to ensure the child has the right to their future inheritance ), or parenting orders.
A parenting order preserves the legal relationship between the child and the non-custodial parent, but it will also provide the step parent with responsibility for that child.
Adoption is a permanent order, whereas a Parenting Order can be changed, either through an agreement between the parents or a court order.
After Legal Advice For Step Parent Adoption in Qld?
If you would like to know more about step parent adoption in Qld and how to begin the process, our team of family lawyers can assist you. To speak to a lawyer about your current situation, call us on (07) 3211 4920.
The post We Explain Step Parent Adoption in Qld appeared first on Emerson Family Law.

In Australia, a parent that doesn’t reside with their child/ren may be responsible for providing them with financial support, particularly if they are under the age of 18. But what happens when a child turns 18? Can a parent still claim adult child maintenance from their ex spouse?
What Does Legislation Say?
The Child Support (Assessment) Act 1989 confirms that child support is traditionally paid until the child turns 18. There is no automatic duty to continue payments after they turn 18 years of age. However, section 66L of the Family Law Act 1975 states that the courts may make an adult child maintenance order if the financial support is necessary:

to enable their child to complete their education (including secondary and tertiary education); or
because of their child’s mental or physical disability.

A child maintenance order can be made by the court when the child is 17, and can take effect when or after that child turns 18.
What the Court Will Consider
To determine whether or not the financial support is ‘necessary’, particularly for a child to complete their education, the court may consider:

How much financial support the child needs;
The financial circumstances of each parent and how much financial support they need to support themselves as well as other new dependents;
Necessary expenses to meet the child’s needs;
Whether or not the intended course will qualify the child to gain employment sufficient enough to support themselves;
The likelihood of the child completing the course;
The relationship between the parent expected to pay support and the child; or
The ability of the child to contribute financially. For instance, through scholarships or their own earning capacity. Are they working part-time whilst studying?

Necessary expenses for an adult child may include food, housing (even if paid by a parent), transport, study-related costs (books, computer etc.), potential medical needs (doctor appointments, dentist appointments, prescriptions and any other medical expenses).
When determining adult child maintenance amounts for children with disabilities or an illness, the court will look at whether or not the child is in such a dependant position and is incapable of supporting themselves. Evidence must be provided to prove that the child’s disabilities relies on the child’s need for financial support.
Applying for Adult Child Maintenance
Either a parent or the child who is turning 18 can apply for a child maintenance order to the Federal Court.
However, before attempting to make a Court application, both parents must try to reach an agreement, either with the help of a mediator or a family lawyer. If an agreement is met, the parties can lodge this agreement to the Federal Court. If an agreement cannot be met, then a court application must be filed.
To find out more about the process of applying for adult child maintenance, please give us a call!
Do You Require Legal Advice For Adult Child Maintenance?
If you want to apply for adult child maintenance and you believe your situation qualifies for financial support, a family lawyer from Emerson can help. We can also help you if you are being asked to continue child maintenance payments for a child over 18, and you don’t believe that child qualifies for support. Please contact us to see how we can represent you and your case.
The post Are Parents Entitled to Receive Adult Child Maintenance? appeared first on Emerson Family Law.

Undoubtedly, COVID-19 has affected us all, especially if you are (or you know of someone who is) at risk of domestic and family violence, especially with the need to self-isolate or social-distance, which may increase the risk of abuse.
Remember – domestic and family violence is not just “physical.”
It can include any of the following:
 
1) “Emotional or psychological abuse” such as:
a. Repeatedly contacting a person by telephone, SMS message, email or social networking site without the person’s consent;
b. Following a person when the person is out in public, including by vehicle or on foot;
c. Remaining outside a person’s residence or place of work;
d. Repeated derogatory taunts, including racial taunts;
e. Threatening to withhold a person’s medication;
f. Threatening to disclose a person’s sexual orientation to the person’s friends
g. Preventing a person from making or keeping connections with the person’s family, friends or culture, including cultural or spiritual ceremonies or practices, or preventing the person from expressing the person’s cultural identity.
 
2) “Economic abuse” such as:
a. Coercing a person to relinquish control over assets and income;
b. Removing or keeping a person’s property without the person’s consent, or threatening to do so;
c. Preventing a person from seeking or keeping employment;
d. Coercing a person to claim social security payments; and
e. Coercing a person to sign any legal document for the establishment or operation of a business, a contract of guarantee, a contract for the purchase of goods or services or a contract for the provision of finance, a loan or credit.
 
If any of the above applies to you (or to someone you know), we are ready, willing and able to advise and assist you further as trusted domestic and family violence lawyers.
This includes:
1) Safety Planning (i.e. developing a workable “game plan” about how you (and any children) can stay safe physically and emotionally in a particular situation/environment at home, at work or travelling by car/public transport;
2) Providing you with trusted legal advice regarding the next steps in preparing a Protection Order Application seeking a Protection Order (i.e. “a DVO”) to legally protect you (and any children) from being exposed to family and domestic violence perpetrated by your ex-partner/spouse; and
3) Referral to reputable organisations and suitably-qualified professionals if you (and your children) urgently require safe alternative accommodation temporarily and/or private therapeutic counselling to go through this traumatic and uncertain period.
To discuss how COVID-19 specifically affects your family law matter, please contact us today on (07) 3211 4920 or visit our website: www.emfl.com.au to make an initial appointment over the phone or by video-link. Please note that this post provides general legal information only and does not provide or intends to provide legal advice.
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Recent media reports a sudden “rise” in divorced couples seeking quick sales putting downward pressure on property prices during the COVID-19 Pandemic. Splitting couples already account for “1 in 6” Australian home sales per year and the proportion of “divorce-driven sales” is predicted to rise as other sellers withdraw their homes from the current property market.
It is further reported that the increased time some families spend together during this COVID-19 lockdown may be an additional factor driving the forced sales, with social isolation putting strain on relationships. Time will ultimately tell if this will worsen if the COVID-19 lockdown continues for a prolonged period in Australia.
In the meantime, if you and your spouse currently own a home (or more) and are separated (or considering separation), it is best to obtain independent legal advice before taking any steps to sell or transfer real property to your other spouse.
There may be adverse legal and tax consequences if you decide to do so, without a written agreement or Court Order in place, which may come back to “bite” you later on.
We are able to advise and assist you so that you are fully informed of suggested next steps and avoid as much as possible the “financial sting” involved in a separation, particularly if the net asset pool comprises of several real properties (owned by related corporate/family trust entities).
During this period, it is also prudent to obtain independent advice from a suitably-qualified accountant and financial planner before selling/transfer any assets, including any real property. In that regard, we have a select panel of reputable and well-experienced accountants and financial planners who are ready, willing and able to assist so that you can make a fully-informed decision of next steps.
To discuss how COVID-19 specifically affects your family law matter, please contact us today on (07) 3211 4920 or visit our website: www.emfl.com.au to make an initial appointment over the phone or by video-link. Please note that this post provides general legal information only and does not provide or intends to provide legal advice.
The post Should I Sell our Family Home During this COVID-19 Period? appeared first on Emerson Family Law.

“COVID-19 has forced us to live together so we can’t be separated…” Fact/Myth? 
Despite popular belief, separation can occur “under the one roof,” even if parties have continued to live in the same residence or that either party has rendered some household services to the other party, such as cooking meals, cleaning the house, doing the laundry, gardening, etc.
It is not uncommon, particularly during this COVID-19 restriction period, for separated couples (whether married or de facto) in Australia to remain living together for one reason or another, whether it is children, finance or convenience.
Given the current unpredictability and uncertainty regarding job security and the ability/capacity to earn a sustainable income, the prevailing sentiment for most people, especially for those living in rental accommodation, is to remain “living under the roof” (albeit separated) as they simply can’t afford to move into separate accommodation at this juncture. This arrangement may last for days, weeks, months or even years after separation under the one roof.
To be “separated under the one roof”, you need to be “living separately”. Some examples of “living separately” include (but are not limited to):

sleeping in separate bedrooms;
ceasing any sexual relations;
ceasing to sit together in meals;
cooking own meals;
doing own laundry;
ceasing to socialise and communicate with each other as a married/de facto couple on a genuine domestic basis;
ceasing to go out with each other again on family outings or other shared activities;
ceasing to having mutual friends around at the home;
telling family and/or friends that you have separated;
closing any joint bank accounts and setting up personal bank accounts;
spending time with the child/ren separately from your former spouse/partner; and
notifying Government Departments (such as Centrelink, the Child Support Agency and/or Immigration) that you have separated.

The above examples (whilst not “exhaustive”) are particularly relevant if the period that you live under the one roof will form part of the 12-month separation period necessary to apply for a Divorce Order in Australia. In that regard, the Court usually requires an Affidavit from you as the Applicant (and if possible, an Affidavit from a family, friend and/or neighbour) which supports the assertion that you and your former spouse have in fact separated under the one roof.
To discuss how COVID-19 specifically affects your family law matter, please contact us today on (07) 3211 4920 or visit our website: www.emfl.com.au to make an initial appointment over the phone or by video-link. Please note that this post provides general legal information only and does not provide or intends to provide legal advice.
The post Separated Under One Roof? appeared first on Emerson Family Law.

The parenting journey can both be a blessing and a struggle, especially if you are a separated parent.
Here are “the Top 3 Tips” to get you through this tumultuous period:
Tip 1 – Protect Yourself and Others
Practise good hygiene by:

covering your coughs and sneezes with your elbow or a tissue;
putting used tissues straight into the bin;
washing your hands often with soap and water, including before and after eating and after going to the toilet;
use alcohol-based hand sanitisers;
avoid touching your eyes, nose and mouth;
cleaning and disinfecting frequently used surfaces such as bench tops, desks and doorknobs;
cleaning and disinfecting frequently used objects such as mobile phones, keys, wallets and work passes; and
increase the amount of fresh air available by opening windows or adjusting air conditioning.

Social distancing. This means staying 1.5 metres away from other people whenever possible.
Self-isolate if you are sick, have been in close contact with someone with COVID-19 or have recently returned from overseas.
Actions speak louder than words so be consistent (i.e. “do what you say you will do”) in your own household and notify the other parent that you (and other members of your own household) are practising good hygiene, social distancing (and self-isolating if you are sick), in accordance with the Government Health Guidelines. This will show that you are using your best endeavours to protect yourself and others from any unnecessary harm/risk.
Tip 2 – Be Present and Mindful
Inevitably, children will hear and see things about COVID-19 via their friends, school, networks, news and social media.
Depending on the child’s age (and their level of maturity and understanding), a child may not fully understand or process the information constructively. For example, a child may become confused, scared, unsettled and/or frustrated that they cannot go to the local playground or meet with their friends at the local beach/shopping centre/cinema.
Be present and mindful of this. Take time (when plenty of it is currently confined “at home”) to listen and speak to them in a way that they feel heard and understood. Reassure them that you will protect them during this difficult time which, in adopting a big picture approach, is only “momentary” and it will pass.
Make a conscious effort each day to embrace the positive moments, stay connected by phone or social media to friends or family who can support you, and remember that you are the “lighthouse” for your children at this time.
You can only “control the controllable.” For example, the things you can control:

Your words;
Your actions;
Your ideas;
Your choices;
Your effort;
Your mistakes;
Your body;
Your attitude;
Your play; and
Your behaviour.

Conversely, the things you cannot control – you needn’t be worried or concerned about such as:

Other’s words;
Other’s actions;
Other’s ideas;
Other’s choices;
Other’s effort;
Other’s mistakes;
Other’s body;
Other’s attitude;
Other’s play; and
Other’s behaviour.

Notice the difference?
In being present and mindful, here are 6 questions which you can ask yourself each day:

What am I grateful for today?
Who am I checking in, or connecting with today?
What expectations of “normal” am I letting go of today?
How am I getting outside today?
How am I moving my body today?
What beauty am I creating, cultivating or inviting in today?

Tip 3 – Comply & Remain Open and Flexible
Having regard to recent the Statement from The Honourable Justice Alstergren of the Family Law Courts of Australia, you should consider the following:

It is important that parents and carers act in the best interests of their children (being the paramount consideration). This includes ensuring the children’s safety and wellbeing. Whilst the Courts make orders that are determined to be in the best interests of a child, caring for and determining the practical day-to-day best interests of a child is primarily the responsibility of parents and carers;
Consistent with their responsibilities to act in the children’s best interests, parents and carers are expected to comply with Court orders in relation to parenting arrangements. This includes facilitating time being spent by the children with each parent or carer pursuant to Parenting Orders;
In these highly unusual circumstances now faced by parents and carers, there may be situations that arise that make strict compliance with current Court Orders very difficult, if not, impossible. This may be caused, for instance, where Orders stipulate that contact with a parent occurs at a designated contact centre, which may not currently be operating. Or, the “pick up” arrangements of a child may nominate a particular school, and that school is now closed. Many state borders are also closed. In addition, there may be genuine safety issues that have arisen whereby one parent, or someone in close contact with that parent, has been exposed to COVID-19, and this may restrict the safe movement of a child from one house to another;
As a first step, and only if it is safe to do so, parties should communicate with each other about their ability to comply with current Court Orders and they should attempt to find a practical solution to these difficulties. These should be considered sensibly and reasonably. Each parent should always consider the safety and best interests of the child, but also appreciate the concerns of the other parent when attempting to reach new or revised arrangements. This includes understanding that family members are important to children and the risk of infection to vulnerable members of the child’s family and household should also be considered;
If an agreement can be reached about new parenting arrangements, even if they are to be adjusted for a short period of time, this agreement should ideally be in writing, even if by way of email, text message or WhatsApp between each other. This will be particularly important if there are later family law hearings and will assist all concerned, including the Court, to understand what agreement may have been reached. As specialist family lawyers, we remain ready, willing and able to assist by formalising a parenting agreement via a Parenting Plan or a Parenting Consent Order (whereby each document is legally different and has their associated advantages and disadvantages);
Parents and carers can also mediate their differences through lawyers (as litigation should always be considered a “last resort” option). As a long-standing specialist family law firm, we remain ready, willing and able to assist here;
If a parenting agreement has been reached and consent orders have been developed to outline new or varied parenting orders, consent order applications can be filed electronically with the Court. This process is quick and usually conducted without a hearing. We can assist here;
If the parties are unable to agree to vary the parenting arrangement, or if it is unsafe to do so, and one or both parents continue to have real concerns, the parties are at liberty to approach the Court electronically and seek a variation of the orders. We can assist here;
Where there is no parenting agreement, parents should keep the children safe until the dispute can be resolved. Also during this period of dispute, parents should ensure that each parent or carer continues to have some contact with the children consistent with the parenting arrangements such as by videoconferencing, social media, or if that is not possible, by telephone;
At all times, parents or carers must act reasonably. To act reasonably, or to have a reasonable excuse for not complying with Court Orders, is a matter that is considered by the Court (pursuant to s70NAE of the Family Law Act 1975).
It is important that, even if the Court Orders cannot be strictly adhered to and are varied by the parties, the parties ensure that the purpose or spirit of the Court Orders are respected when considering altering arrangements, and that they act in the best interest of the children; and
The Courts appreciate that agreement by mutual consent may not be reached, particularly if one party has concern for their physical safety. Therefore, if you or your child is in immediate danger, please contact the Police and feel free to contact us for urgent legal advice.

If you have current court proceedings in the Family Law Courts of Australia, refer to this link for a list of helpful information relating to the Courts and their management of COVID-19:
More than ever during this difficult period, compromise is absolute key here, particularly having regard to the best interests of children. The unfortunate reality is that the Family Law Courts will increasingly have limited availability to determine matters.
Common sense and mutual respect and compromise are much needed now towards achieving final resolution.
Don’t let COVID-19 deter you from finalising your family law matter if you are separated (or even contemplating separation). Being proactive (rather than “reactive”) ensures a timely and cost-effective resolution of your family law matter (whether it involves parenting and/or financial matters).
To discuss how COVID-19 specifically affects your family law matter, please contact us today on (07) 3211 4920 or visit our website: www.emfl.com.au to make an initial appointment over the phone or by video-link.
Please note that this post provides general legal information only and does not provide or intends to provide legal advice.
The post Top 3 Tips for Separated Parents During COVID-19 appeared first on Emerson Family Law.

Emerson Family Law and Emerson Migration Law are extremely concerned about the possible plight of Domestic and Family Violence victims who are now being forced to spend even more time with their abusive partners as a result of these lockdowns.
With all of us urged to stay inside to protect the community from COVID-19, we cannot ignore that that the home is not always a place where people will feel safe or secure.
Particularly with joblessness and financial hardship on the increase, deteriorating mental health due to the uncertainty of our times, an already toxic home environment just became even more volatile.
An ABC report on Radio National this morning revealed that Google has reported a 75 per cent spike in searches for help with Domestic and Family Violence.
These statistics alone are hugely revealing as they tell us that Domestic and Family Violence is a much bigger issue than we are led to believe in a non Covid -19 context.
We are also very concerned about women from CALD/Migrant communities who on top of the issues relating to joblessness and financial hardship, may have language barrier issues which prevent them from accessing essential services.
We would urge those women to come forward as they may not be aware that they can pursue their Permanent Residency independently of their abusive sponsors. We will also be able to advise them on the exact nature and types of evidence required in order to make a claim under the Family Violence Provisions under the Migration Act 1958 (Cth).
Our staff is multilingual and we are here to help.
FREE CONSULTS FOR VICTIMS OF DOMESTIC AND FAMILY VIOLENCE
Emerson Family Law/Emerson Migration Law will offer a free consultation to people looking to obtain information regarding Domestic and Family Violence and the protections that may be available to them, both from the family law context but also if there are implications for their visa status in Australia.
Please contact our office on 3211 4920 or via email at [email protected] OR [email protected] in order to make a time with our Director or one of our solicitors to speak with you in a confidential manner.
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In these unprecedented times, the Coronavirus Pandemic (“COVID-19”) has affected all of us, socially and economically.
To ensure that you are getting reliable and most up-to-date information regarding COVID-19 including latest case numbers and related information, please refer to this hyperlink from the Australian Government Department of Health
From a Family Law perspective, COVID-19 affects your family law matter as follows:
Q1. How does COVID-19 affect my parenting matter?

Parenting arrangements may not necessarily “fit” the current circumstances and/or comply with the current Government restrictions, pursuant to a written agreement (i.e. a Parenting Plan or a Parenting Consent Order) or a Parenting Court Order (whether interim or final, in contesting parenting court proceedings).
For example, a child may be permitted to travel interstate and/or overseas with a party during the school holidays. Due to the recent Government-imposed overseas and interstate travel and border restrictions, consider deferring such travel arrangements in the meantime which should be agreed between the parties at first instance.
Changeovers of a child (whereby most changeovers typically occur at a public venue, such as the child’s school, McDonald’s Restaurant, the police station, the airport or the local park, petrol station or shopping centre etc.) may close during this period. Consider choosing an alternative changeover venue which minimises “face-to-face” contact with other people.
If/when schools are to be closed, consider whether the child’s education is able to be adequately facilitated at each party’s residence with suitable electronic and internet facilities to maintain the child’s online learning and avoid minimal disruption for the child as reasonably practicable.
Consider the child’s current physical, mental and social health and well-being (whilst also bearing in mind that “a child’s health” is legally considered a “major long-term issue” which, except for exceptional circumstances of family violence and/or child abuse, generally requires mutual discussion and consent by both parents of the child) and in particular:

Is the child unwell? If so, does the child require medical testing by a suitably-qualified GP or Paediatrician?
Does the child generally cope well with isolation?
How does COVID-19 affect your child if he or she has pre-diagnosed special needs?
Does the child (need to) understand COVID-19 and its effects, depending on his or her current age, maturity and/or level of understanding?
Is there a need for the child need to see a qualified GP/counsellor/psychologist/psychiatrist now or later? In that regard, we have a select panel of suitably-qualified experts who are able to assist, if and as necessary.

If no agreement is or can be reached regarding parenting matters for the child, consider organising a Family Dispute Resolution Mediation (which can occur electronically) to be facilitated by a suitably-qualified and well-experienced Family Dispute Resolution Practitioner seeking a new Parenting Plan or a new Parenting Consent Order (or a new Court Order varying the current parenting arrangements as a matter of last resort). In that regard, we can advise you of the legal process regarding parenting matters and the associated advantages and disadvantages at an initial consultation.

Q2. How does COVID-19 affect my property settlement matter?

The value of “property” to be considered in a property settlement matter (eg. the former family home, shares, the family business (and any related companies/trust entities) and/or superannuation, including any self-managed superannuation funds) may be affected by adverse changes in the economy, both domestically and internationally.
Valuations conducted during this period may potentially have a positive or negative impact, depending if you are the “financially-stronger” or the “financially-weaker” party in a property settlement matter.
This may require further negotiations between the parties to agree on a property settlement or if no agreement is reached, consider organising a private Mediation (which can occur electronically avoiding “face-to-face” contact) to be facilitated by a suitably-qualified Mediator as soon as possible. In that regard, we have a select panel of suitably-qualified and well-experienced Mediators who are able to assist, if and as necessary.
If you currently have a pre-nuptial Binding Financial Agreement (whether you are a de facto partner or married), this is even moreso crucial during this period to discuss whether the terms of that Agreement remain legally “in force,” “suspended” or “discharged.” In that regard, we can advise you of the legal process and the associated advantages and disadvantages at an initial consultation.

 
Q3. How does COVID-19 affect my child support matter?

The commercial reality is that a child’s living and educational costs (eg. the child’s school fees, medical, dental or orthodontic expenses, private health insurance (including any “gap” fees) etc.) still continue and will need to be paid, despite COVID-19.
If your income has reduced, if you are unable to work and/or made redundant during this period, the amount of child support (whether periodic and/or non-periodic) that is required to be paid or received as agreed between the parties or Court Order may be affected.
This may require further negotiations between the parties to agree on an “adjusted” child support amount or if no agreement is reached, consider organising a private Mediation (which can occur electronically avoiding “face-to-face” contact) to be facilitated by a suitably-qualified and well-experienced Mediator as soon as possible. In that regard, we have a select panel of suitably-qualified Mediators who are able to assist, if and as necessary.
If you currently have a written Limited or Binding Child Support Agreement, this is even moreso crucial during this period to discuss whether the terms of that Agreement remain “in force,” “suspended” or “discharged.” In that regard, we can advise you of the legal process and the associated advantages and disadvantages at an initial consultation.

 
Q4. How does COVID-19 affect my spousal maintenance matter?

The commercial reality is that “the bills” (eg. the home mortgage, insurance, Council rates, electricity, phone, gas, food, motor vehicle registration etc.) still continue to come in and need to be paid, despite COVID-19.
If your income has reduced, if you are unable to work and/or made redundant during this period, the amount of spousal maintenance (whether periodic or lump sum) that is required to be paid or received as agreed between the parties or Court Order may be affected.
This may require further negotiations between the parties to agree on an “adjusted” spousal maintenance amount or if no agreement is reached, consider organising a private Mediation (which can occur electronically avoiding “face-to-face” contact) to be facilitated by a suitably-qualified Mediator as soon as possible. In that regard, we have a select panel of suitably-qualified and well-experienced Mediators who are able to assist, if and as necessary.
If you currently have a written Binding Financial Agreement, this is even moreso crucial during this period to discuss whether the terms of that Agreement remain “in force,” “suspended” or “discharged.” In that regard, we can advise you of the legal process and the associated advantages and disadvantages at an initial consultation.

 
Q5. Does COVID-19 affect my family law matter if I have ongoing court proceedings?
Yes

The Family Law Courts of Australia (“the Court”) are regularly releasing information regarding changes to the operations of the Court.
Those changes include:

 Matters involving child-related and family violence aspects, urgent and priority Trials and contested hearings will remain listed, until further notified;
Non-urgent Property Trials (and some non-urgent Parenting Trials) may be adjourned for an appropriate time, until further notified;
Trials or Hearings which can be conducted by telephone will be;
There should never be more than 8 people (excluding the Judge/ Registrar) in the courtroom at any one time; and
For more information and regular updates, see the Court page here

We are well-renowned experts in all aspects of Australian Family Law, particularly in:

complex parenting and financial cases;
international family law matters, including relocation and Hague Convention matters;
pre-nuptial and post-nuptial Financial Agreements for married and de facto couples; and
“big money” cases involving restructuring of various business, corporate and/or trust entities and interests of third parties and creditors.

Don’t let COVID-19 deter you from finalising your family law matter if you are separated (or even contemplating separation). Being proactive (rather than “reactive”) ensures a timely and cost-effective resolution of your family law matter (whether it involves parenting and/or financial matters).
You can and should seek to “close” this harrowing chapter in your life and move forward. This is particularly even moreso when COVID-19 has inevitably placed a timely reminder on all of us of how fragile, short and precious life really is!
To discuss how COVID-19 specifically affects your family law matter, please contact us today on (07) 3211 4920 or visit our website: www.emfl.com.au to make an initial appointment over the phone or by video-link.
Please note that this post provides general legal information only and does not provide or intends to provide legal advice.
The post Our Top 5 FAQs For COVID-19 and Family Law appeared first on Emerson Family Law.

When parents with a young child separate, it is vital to ensure that the children involved receive an appropriate level of financial support. Services Australia has the responsibility to assess the parents based on their income, the amount of time spent with the child and the child’s age, and then make decisions as to how much a parent will either need to pay or receive to support their child or children. But what happens when a parent disagrees with a child support assessment decision? Read on to find out more.
Decision to Object
When a parent disagrees with a child support assessment decision made by Services Australia, a written Objection Form can be lodged for review. An objection allows parents or non-parent carers to ask the child support Registrar to reconsider particular decisions made under the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988.
The main circumstances for a parent to object to the initial assessment include:

The use of incorrect or old information (for instance, your income is incorrect)
Not all the facts have been considered
Important details are missing
The law has not been applied correctly

If a parent is not satisfied with the decision made by Services Australia, they can then appeal that decision by filing an application with the Administrative Appeals Tribunal. There are two levels of review, so if a parent doesn’t agree with the result of the first review, they may be able to ask for a second. A parent can only ask for a second review if the decision is regarding care percentage or asking for more time to apply for the first review. If there is no agreement on this second review decision, a parent can appeal to a court.
How to Object
An objection must be in writing, either by mail or email, and must include the following:

The date of the letter advising the parent of the decision to which they are objecting
The date the letter was received
The decision the parent is objecting to
Any reasons why the it is the incorrect decision
Evidence to support the objection

Evidence not accepted are statements from persons under the age of 18 and anything offensive or obscene.
Time Limits
There are strict time limits to object a child support assessment. From the day the parent objecting receives the decision letter, they have 28 days to object. This is only if the objection to a decision is not about a care percentage. If the parent objecting lives overseas, they have 90 days to object. For parents looking to object the care percentage, the objection can be lodged at anytime. However, if it is not lodged with the 28 day/90 day limit, the date of effect of the review decision will be the day the parent lodged their objection.
Disputing a Child Support Assessment? Speak to Our Lawyers
Whether you’re about to commence disputing a child support assessment, or you are appealing the decision to a court, you may require some legal assistance. Our team of family lawyers are highly experienced in all children’s matters. Please get in touch to speak to a member of our team.
The post What Happens if You Dispute a Child Support Assessment? appeared first on Emerson Family Law.