No interest in getting married? Many couples opt to remain in a de facto relationship rather than go through the marriage process. But, whether you’re about to enter a new de facto relationship or perhaps your relationship is on the verge of breaking up, it is important to understand your rights in Qld.
 
What is a De Facto Relationship in Qld?
Under Section 60EA of the Family Law Act 1975, a de facto relationship is when two adults are together in a marriage-like relationship. To be recognised as a de facto relationship under the Australian law, couples can either be the same sex or opposite sex.
If the Court is required to determine whether or not a de fact relationship exists, the following indicators are taken into consideration as per Section 4AA:

How long the couple have been together, including any previous records of separation. The length of time to be considered de facto is 2 years. There are exceptions to this rule if there are children involved or substantial contributions to a joint property;
The nature and extent of the couple’s common residence;
Whether or not a sexual relationship exists;
The financial dependence or interdependence, including any financial support arrangements;
The acquisition, ownership and use of property;
The degree of mutual commitment to a shared life;
The reputation of the relationship, for instance, to family and friends; and
The care and support of any children under their care.

Multiple De Facto Relationships
What happens if you find that your de facto partner is, in fact, part of another de facto relationship? Section 4AA of the Family Law Act acknowledges that a person can be married while simultaneously in a de facto relationship with another person. It also acknowledges that a person can be in two simultaneous de facto relationships, meaning a de facto relationship does not need to be mutually exclusive.
 
Registering a De Facto Relationship
In Queensland, de facto couples can choose to register their relationship, either as a sign of commitment or for other legal reasons. If couples wish to register a de facto relationship in Qld, they can do this through the state’s Registry of Births, Deaths and Marriages. When registering in Queensland, both parties must be over the age of 18 and one partner must be a Qld resident. Contrary to being in multiple de facto relationships, if the parties choose to register relationship, neither can be married or already in a registered relationship. A registered relationship ends if either party marries.
 
Breakdown of De Facto Relationship
If your de facto relationship breaks down, the official action to signify the end of the relationship is informing the ex-partner. There is no need to fill out forms or apply to the Court. Both parties can choose to amicably separate and divide property and assets without attending court. However, if both parties cannot agree on terms, they can apply to the Court for financial or property orders. Partners have a limit of up to two years after the relationship has ended to finalise any property or maintenance issues.
Before making any applications to the Court, a couple must satisfy all of the following criteria:

There was a genuine de facto relationship which is broken down
The couple meets one of the following four gateway criteria
The de facto relationship lasted for at least 2 years
There is a child in the de facto relationship
The relationship was registered in a state or territory
Significant contributions were made by one party and it would be unfair to that party if an order is not issued
There is a geographical connection to a participating jurisdiction
The relationship broke down after 1 March 2009

Property settlements, parenting arrangements and financial orders for de facto relationships in Qld are the same as married couples’ rights. If you require legal representation when dividing assets, our team of qualified family lawyers can help.
 
Death of a De Facto Partner
If you are in a de facto relationship and your partner passes away, you are entitled to the same rights that apply to a married person. This includes the following:

A share of an estate with the next of kin (spouse/de facto partner and children/grandchildren) where no Will exists. However, the surviving partner will have to prove that they were a de facto spouse at the time of death;
The right to contest the Will within 6 months from the date of the deceased’s death; and
The right to lodge a claim for workers compensation if it is a work-related fatality

 
Speak to a Lawyer About Your Rights in a De Facto Relationship in Qld
Want to learn more about being in a de facto relationship in Qld and your rights? Our team of highly skilled family lawyers are highly experienced in separation law as well as property settlement matters. Get in touch to learn more or find the right legal representation for you.
The post A De Facto Relationship in Qld: Your Rights & Entitlements appeared first on Emerson Family Law.

Children grow up and family circumstances change. That’s the nature of life. Parents may separate while their children are young, and many opt to make parenting arrangements for their children through Parenting Orders. When these parenting orders are made while the children are young, parents have usually done their best to make arrangements based on their situation at the time. However, significant changes to family circumstances often result in the need for parents to revisit their parenting orders and adjust. So, what is the process for changing parenting orders in Qld?
When Can You Change a Parenting Order?
For the courts to change parenting orders in Qld, there must firstly be a significant change in the circumstances since the first order was made. A ‘significant change’ is usually decided on a case by case basis, but the court will only consider changing orders if the circumstances satisfy the test outlined by the case, Rice v Asplund from 1979.
The Rice vs Asplund case dealt with living arrangements for the separated parties’ young daughter. Initially, the parenting order outlined for the child to live with the father. Not long after the order was made, the mother brought in an application to change the current order, requesting that the daughter live with her and spend time with the father. The ‘significant changes’ in the mother’s circumstances included obtaining stable accommodation and remarrying. The child was also about to commence school. The court ruled these changes to be significant enough to change the Parenting Order. Ultimately, these changes proved to be in the best interest of the child.
Examples of a ‘significant change’ could be the following:

One party is seeking to relocate with their children;
One or both partners has re-married or re-partnered; and
Both parties have consented to new parenting arrangements (through a Parenting Plan)

For more information on what constitutes a ‘significant change’ when changing parenting orders in Qld, please get in touch to speak to our lawyers.
Applying to Change an Order
When applying for a Parenting Order variation, the first step is to attempt negotiating any changes with your former partner. If both parties come to an agreement, a new order can be arranged to reflect the changes. It is important to note that any changes must always remain in the best interest of the child or children.
An alternative to updating the Parenting Order is to enter a Parenting Plan that outlines any changes. Parenting Plans are not legally enforceable, however, it will be considered if the parties end up in court to decide on permanently changing their parenting order.
If Parties Can Not Agree on Changes
For parties that are unable to come to an agreement on changes to existing parenting orders, your best options are to look into dispute resolution tactics like collaborative law and mediation. Here, parties can work towards coming to an agreement without having to go to court. If an agreement can still not be met, the parent wishing to make the change to the existing order might want to consider filing a new application to the court. Our lawyers can help you with this process.
Speak to Our Lawyers About Changing Parenting Orders in Qld
Any questions regarding parenting orders in Qld and the process of changing them? Our lawyers are highly experienced in all family matters including divorce and separation, children’s matters and collaborative law and mediation. Please get in touch to find out how we can help you.
The post Changing Parenting Orders in Qld: The Process appeared first on Emerson Family Law.

We’ve all heard of pre nuptial agreements made before a couple wed. But what about a post nuptial agreement? Do they exist? Well, they do – and they are actually quite common in Australia, gaining popularity over the last few years. If you recently married or are perhaps considering entering a post nuptial agreement, here’s everything you need to know before making the final decision.
 
Binding Financial Agreement
We refer to a post nuptial agreement in Australia as a binding financial agreement under Section 90C of the Family Law Act 1975. This type of agreement includes pre nuptial agreements, post nuptial agreements, separation agreements and divorce agreements. What a binding financial agreement does is allow couples to enter a financial agreement during their marriage or de facto relationship to determine how property and spousal maintenance will be dealt with in the event of a divorce, separation or death.
 
Why Enter a Post Nuptial Agreement in Australia?
There are several reasons why couples enter this binding financial agreement throughout a marriage or relationship rather than before.
Circumstances can change throughout a marriage, particularly related to finance. If a couple already has a pre nuptial agreement, they may enter a post nuptial agreement simply for the sake of having up-to-date documentation.
If there has been a drastic change in a couple’s financial situation, then it is a good idea to enter a binding financial agreement. For instance, a spouse that inherits a large sum of money or a valuable heirloom during a marriage may change an existing pre nuptial agreement or create a brand new financial agreement in case of separation or death. This post nuptial agreement can help keep these assets set aside just for that spouse.
If one spouse is part of a family business and that business wishes to protect ownership and assets from the other spouse, a post nuptial agreement can be used to guarantee control over the ownership of the business in the event of the couple’s divorce or the spouse’s death.
For those entering a second or third marriage with children from previous relationships or marriages, a post nuptial agreement helps to ensure that their assets go to their children.
If you would like to know why you should enter a post nuptial agreement, feel free to chat to our team of family lawyers.
 
What Should a Post Nuptial Agreement Include?
A typical post nuptial agreement in Australia could include the following:

Assets and debts;
Joint and personally-owned belongings and assets;
Spousal maintenance;
Expectations of any gifts/inheritances;
Insurance coverage;
How any property will be split; and
What is covered in each party’s Will in the event of death.

 
When is it Legally Binding?
Under Section 90G of the Family Law Act, a post nuptial agreement in Australia is binding for both parties if:

It is in writing and signed by both parties;
Before signing the agreement, each party was provided with independent legal advice regarding their rights and the advantages and disadvantages, at the time the advice was provided, to that party of making an agreement;
Each party is given a signed statement by their legal practitioner outlining their advice;
A copy of the signed statement is given to the other party or legal practitioner of the other party; and
The agreement is not been terminated and has not been set aside by the court;

If this agreement is being made between couples who have already divorced, a Separation Declaration may be needed. This proves that the parties have separated without any reasonable likelihood of the relationship resuming.
 
Speak to a Lawyer About Making a Post Nuptial Agreement in Australia
It can be awkward discussing a post nuptial agreement, especially if you are happily married. Although many couples see it as a way of displaying little faith that the marriage will last, this is not the case. It could be in the best interests of both parties to make such plans for the worst-case scenario to avoid enduring a split more painful than it needs to be. If you need assistance with creating a post nuptial agreement in Australia, please get in touch with our team.
The post What is a Post Nuptial Agreement in Australia? Do You Need One? appeared first on Emerson Family Law.

If you’re looking to resolve a dispute without the hassle or financial burden of going to court, there are a couple of solutions for you to consider, one being Collaborative Law. The collaborative law process can be compared to another dispute resolution practice, Mediation. We’ve previously spoken about the family mediation process, so, here’s everything you need to know about collaborative law and how it differs.
 
What is the Collaborative Process?
Collaborative law is a dispute resolution process which allows both parties involved and their lawyers to enter into a contract (the “Participation Agreement”) to finalise any legal aspects of their separation or divorce without attending court. The process uses an interest-based negotiation model where the parties and their lawyers collaborate to find a mutually beneficial decision based on the interests of the disputants. These interest could be any needs, goals, concerns and fears.
 
What Are the Benefits of Collaborative Law?
Apart from avoiding the need to attend court, there are several other benefits to the collaborative law process.
Both parties are permitted to have their lawyer present at every stage of the process. A lawyer by your side can offer both legal advice and emotional support.
Attending court can be expensive and time-consuming. What collaborative law does is offer a lower cost process and a faster agreement time. Both parties can set their own time frame for settling their dispute. Unlike the court process, there are no set dates.
All negotiations are private and confidential and either take place in one of the collaborative lawyer’s offices or another neutral location.
 
How is it Different to Mediation?
The collaborative law process may still sound similar to mediation, but they do have one major difference; lawyer participation.
In mediation, the third party (or mediator) must remain impartial and offer no advice while both parties work to make decisions and resolve any issues. A mediator may work with the couple to establish their needs or provide general legal knowledge, but they must not favour one party over the other or offer a legal opinion.
A collaborative lawyer, on the other hand, is not a neutral party, but rather an advocate for their client. The purpose of collaborative law may be to work together to find a mutually satisfactory agreement, however, the primary duty of each lawyer is to focus on their client’s goals and interests.
 
Is the Collaborative Law Process For You?
So, is collaborative law for you?
Mediation is best suited to those who feel they can advocate for themselves and are prepared to sit down with only their former spouse and a neutral third party. They must also have a manageable level of emotion and conflict, and the ability to work with their former partner to make decisions.
Collaborative law, on the other hand, is best suited to those who need and prefer the guidance of a lawyer. As the lawyers’ purpose is to have their client’s best interests at heart, this process will be best for those who don’t feel competent enough to negotiate any financial issues or children-related issues by themselves.
 
Speak to Our Lawyers About the Collaborative Law Process
Does the collaborative law process sound like the right choice for you and your situation? Our lawyers can work with you to discuss your personal matter and offer legal advice and representation during your collaborative process.
The post The Collaborative Law Process: What Is It And How Is it Different to Mediation? appeared first on Emerson Family Law.

During the divorce process, dividing marital assets can often lead to conflict, especially if it involves an inheritance. One spouse may have received an inheritance from a parent or another family member. Should that property be shared with the ex-partner, or does the spouse who received it have the rights to keep it all? How should inheritance be dealt with in a divorce settlement in Australia?
 
A Consent Order
The simplest and most stress-free way for two former spouses to come to an amicable agreement regarding any property settlement, including inheritance, is through a consent order. It is only after both parties have tried to negotiate and are unable to agree that the issue will go to the family court. The court will then decide how the inheritance in a divorce settlement is divided. In Australia, there are several factors to consider before deciding how much each spouse will receive.
 
When Was the Inheritance Received?
The biggest factor for inheritance during a divorce settlement in Australia is when the property was received.
Before
An inheritance received by one party prior to the relationship or around the time the relationship commenced is more likely to be treated as an initial financial contribution to the relationship or marriage. It will not be separated from the asset pool upon divorce.
During
If the inheritance was received during the relationship or marriage, its distribution depends on how the money was used as well as the intentions of the benefactor. For instance, if the money was used for family holidays, improving the family home and other day-to-day family expenses, what is remaining will be treated as a financial contribution by the spouse who received it.
Late or After
Any inheritance received late in the relationship (towards the end) or after separation will not be viewed as a financial contribution to the asset pool.
If you have received an inheritance before, during or after your relationship and your hope is to retain the full amount, speak to a divorce lawyer about the chances of this happening.
 
What Were the Intentions of the Benefactor?
When looking at inheritance during a divorce settlement, the family court in Australia will also look at the intention set out by the benefactor.
For instance, if the benefactor’s intent was for the inheritance to benefit the entire family, it will most likely be regarded as part of the joint asset pool. However, if the property was intended to only benefit the named beneficiary and if that party kept it separate from other assets, then it would be treated as separated from the joint asset pool. Ultimately, the court will look at the evidence to support the intentions of the amount before deciding on how it will be distributed.
The court will also look at the relationship between both spouses and the benefactor. For example, if the benefactor either lived or had been cared for by both parties, the inheritance will most likely be considered part of the joint asset pool.
 
Size of the Asset Pool
The size of the asset pool compared to the size of the inheritance received can influence the way the property is dealt with during a divorce settlement in Australia. If the size of the asset pool is smaller than the inheritance, and the division of the asset pool (excluding the inheritance) is inequitable, a late inheritance may be included in the asset pool for distribution.
 
Speak to a Lawyer About Your Inheritance and the Divorce Settlement Process in Australia
The distribution of inheritance during a divorce settlement in Australia is completely circumstantial and many factors must be considered. Whether you are attempting to resolve this issue out of court or you are after legal representation in court, we can help. Our team of expert family lawyers are highly experienced in all divorce situations. Please get in touch to see how we can help you.
The post What Happens to Your Inheritance During a Divorce Settlement in Australia? appeared first on Emerson Family Law.

Our offices will be closed for the Christmas and New Year period from 4:00pm on Friday, 20th December 2019 and re-open at 8:30am on Monday, 6th January 2020.
 
 
The post Closed Over Christmas and New Years appeared first on Emerson Family Law.

When a marriage or relationship breaks down and involves children, the grandparent’s rights are often affected, and at times forgotten. Grandparents can play a significant and active role in a child’s life, and in some instances, they may be the child’s main carer. If you are unsure of the rights of grandparents to see or care for your grandchildren in Australia, we can help by simplifying the laws for you.
 
Rights of Grandparents to See Their Grandchildren in Australia
Under the Family Law Act 1975, a grandparent is the parent of a child’s mother or father. They can be a biological grandparent and in some cases, a non-biological grandparent. Section 60B of the Family Law Act outlines that a child has the right to spend time and communicate with both parents and others significant to their care, welfare and development. The Act explicitly includes grandparents in the category of people a child should maintain contact with. Having said that, when a relationship breaks down between the parents, this does not mean grandparents have an automatic legal right to contact or care for their grandchildren, as the right lies with the child. Ultimately it depends on the child’s best interests and what limitations the parents place on the grandparents.
 
The Child’s Best Interests
When the law refers to the rights of grandparents to see their grandchildren in Australia, the court will look at whether the relationship is in the best interests of the child. Section 60CC of the Family Law Act, the court will refer to various factors, including:

The benefit of the child having a relationship with their grandparents;
The need to protect the child from physical or psychological harm;
The nature of the relationship between child and grandparent;
The capacity of a grandparent to provide for the child’s emotional and intellectual needs;
The likely effect of change on the child; and
The practical difficulty and expense of the grandchild spending time with and communication with a grandparent.

Grandparents have a right to benefit from the relationship with their grandchildren so long as it is in the best interests of the child.
 
Grandparents and Court Orders
While it is clear that the rights of grandparents to see their grandchildren in Australia can be achieved through the court, there may be instances where a grandparent may have to go one step further and apply for parenting orders.
A parenting order is a set of orders made by the court regarding certain parenting arrangements for a child. This order can be made based on both parents and grandparents agreeing to the arrangement (consent orders). It can also be made be if the parents prevent the development of a relationship between the grandparents and grandchild. Issues dealt within a parenting order include:

Where the child lives;
How much time the child spends time with parents and grandparents;
The allocation of parental responsibility;
How the child communicates with other significant people they do not live with; and
Any other aspect of the child’s care, welfare or development.

 
Mediation Before a Court Application
Although the Family Law Act does outline the rights of grandparents to see grandchildren in Australia through court orders, our team suggest attempting to solve any issues through mediation first. Court applications should be used as a last resort if other options like mediation or family dispute resolution have failed to work. Before any applications can be made to the Court, there must be evidence that all parties have attempted to resolve the matter through mediation or family dispute resolution. The exception to this is if there is a matter of urgency or a risk of harm to the children. At Emerson Family Law, we have a team is trained in Family Dispute Resolution Practitioner (FDRP) and can help you resolve your issues without attending court.
 
Still Have Questions About the Rights of Grandparents to See Their Grandchildren in Australia?
If you’re a grandparent and you want to learn more about the rights of grandparents to see their grandchildren in Australia, we can help. Whether you are after shared responsibility, custody or visitation rights, our team of family lawyers are highly experienced in all children’s matters. Get in touch to speak to one of our lawyers by calling (07) 3211 4920.
The post What Does The Law Say About the Rights of Grandparents to See Their Grandchildren in Australia? appeared first on Emerson Family Law.

The school holidays are a great time for parents to bond with their children, take them on new adventures and generally enjoy each other’s company. With the school holidays starting and Christmas not too far away, it can be difficult organising your children’s living arrangements.
So what can separated parents do to make their children’s lives as well as their own lives easier? We asked a child custody lawyer at Emerson Family Law to answer some questions surrounding parental arrangements over the school holidays.
 
Should I Create a Parenting Plan?
A Parenting Plan is a voluntary agreement that outlines which days your children will spend with each parent. Under the Family Law Act 1975, the Parenting Plan must be written and signed by both parents. It can also be at any time as long as both parents agree to those changes. Parents should consider a parenting plan if they can freely communicate about any issues regarding their child/children, or they are after a more structured co-parenting style.
It is usually a more simple and affordable solution to a parenting order, however, it is not legally enforceable. So, if parents are unable to agree on a set of arrangements, our child custody lawyer at Emerson suggests asking the court to make a Parenting Order.
 
Should I Lodge a Parenting Order Instead?
As previously outlined by our child custody lawyer, parents will usually request the court to make an order if they are unable to agree about arrangements. Similar to a parenting plan, a parenting order is a set of parenting agreements for a child, however, made by a court. If a parent does not follow the parenting order, they may be breaking the law and the courts will issue you a penalty. Under the Family Law Act 1975, an order may deal with any of the following:

Who your child/children will live with;
The time spent with each parent on significant holidays, for instance, Christmas, public holidays and school holidays;
How the child will communicate with the parent they are not living with; and
Any other relevant aspect that may affect the welfare, care and influence of the child.

This order will remain in place until a new order or any changes are made.
 
What Happens On Special Occasions Like Christmas?
Setting out arrangements based on special holidays is very common in a parenting order or plan.
For instance, during the summer school holidays, orders will usually outline who the child will live with and for how long. There should be no presumption from both parents that the school holidays will be shared equally. As outlined in the Family Law Act 1975, the court will always consider what is in the best interests of the child.
Here’s an example of a school holiday parenting arrangement by our child custody lawyer:
Regular arrangements will be suspended and the child/children shall live with the mother from 3pm Thursday on the last week of Term 4 until 9am Saturday of the following week, and with the father from 9am Saturday until 4pm Saturday of the subsequent week.
A parenting order may outline an alternating schedule for special holidays like Christmas. For instance:
In each even-numbered year, the child shall live with the father from 5pm on 24 December until 2pm 25 December, and the Mother from 2pm on 25 December until 5pm on 26 December. The parenting may outline changeover arrangements and communication with the parent they are not living with.
 
What About Overseas Travel During the Holidays?
Summer holidays in Australia are a popular time to travel. If one parent wishes to take their children on an overseas holiday, they must first obtain the consent from the other parent, and then outline any arrangements in the parenting order or plan. If a parent refuses to consent any travel, the other parent may apply for Court orders. The Court must receive the full details of the intended travel, including dates, destinations and contact details, before making a decision. The Court may also request a security bond which must be paid to ensure the child is returned to Australia by the outlined date. Once all conditions are met and the Court is satisfied that any travel is in the child’s best interests, permission will be granted.
In cases where a parent is concerned about their child’s safety, they may seek a Court order preventing them from travelling by outlining their reasons in an affidavit. This order can either prevent a child’s passport from being issued or prevent a child from leaving Australia. If you fear that your child/children will be taken out of the country regardless of not offering your consent, please seek urgent legal advice from a child custody lawyer.
 
What Are The Best Steps For Avoiding Conflict?
According to our child custody lawyer, here are some steps parents should be implementing to avoid any conflict, particularly in front of any children.

Put the children first. When it comes to their arrangements, it needs to be what is best for the children, not what’s best for the parents. It is important for parents to listen to their children’s needs, emotions and concerns. Parents should also ask their children what they want to do and give them input in the process.
Create new traditions. This is particularly important over the Christmas period. Unique holiday traditions can help your children focus on the joys of the festive season and alleviate any stress they may be feeling. It is also important to show them that change is natural and not necessarily a bad thing.
Learn to communicate. Effective communication is key, even in broken relationships. You may not be able to communicate in the same ways you used to, so learn new ways to hold effective and engaging conversations.

 
Speak to a Child Custody Lawyer About Holiday Arrangements
If you are unsure how to incorporate school holidays and Christmas into your parenting plan or parenting order, we suggest speaking to a child custody lawyer. Our team at Emerson are experienced in all children’s matters and have the skills to appropriately handle your case in the best interests of your children. Please get in touch to speak to a team member.
The post Ask A Child Custody Lawyer: Arrangements Over The School Holidays appeared first on Emerson Family Law.

Going to court to resolve family disputes can be expensive, time-consuming and emotionally draining. That’s why mediation is an ideal alternative to the court system for many families. But what does the family mediation process entail? We are going to provide you with a deeper understanding of what mediation is and what you can expect during the process.
 
What is Family Mediation?
Family mediation is the negotiation process where people involved in a dispute come together to resolve their issues with the help of a neutral third party. A mediator’s job is to help both parties determine their issues, find common ground and work out a mutual agreement. They will not tell the parties what agreement should be made or offer any legal advice. The family mediation process can take place either face to face in a neutral environment, in separate rooms with the mediator travelling between the two parties (shuttle mediation) or over a telephone conference call.
 
What Are The Benefits of Mediation?
The family mediation process offers many benefits to families:

It is efficient – a dispute can usually settle within a few sessions.
It helps to preserve relationships – rather than go through years of litigation which could potentially destroy family relationships, mediation’s focus is to find common ground and solutions that suit both parties.
It is informal – unlike the court procedure, family mediation is an informal process that does not require lawyer representation. However, some individuals do feel more comfortable having a lawyer present.
It is flexible – unlike a lawsuit, both parties have more say in the negotiations, and more control over the results.
It is affordable – costs are significantly lower than litigation.
It is confidential – court cases are public, whereas mediation is typically confidential. Information revealed during this process cannot be used later in a trial or judicial proceeding.

 
What is Involved in the Family Mediation Process?
The family mediation process will generally involve the following steps.
Preparation
Before mediation begins, your mediator can meet with you to explain the process and answer any questions. This step does not need to happen in person – it can happen over the phone.
Introduction
On the day of your mediation, the first thing a mediator will do is give an opening statement. This statement includes a description of the role of the mediator and participants, the mediation process and any ground rules. The mediator should ask both parties to agree to this process.
Statement of the Problem
The mediator gives each party a chance to summarise their position and what they think the problem is in their own opening statement. By the end of these statements, both the mediator and the parties involved should have a better understanding of the issues.
Joint Discussion
The mediator will discuss the problems described by each party by asking open-ended questions to find out any additional information. Through this joint discussion, the mediator will be able to figure out what issues can be settled first.
Private Discussion
Both parties are then given the opportunity to discuss their opinions and thoughts with the mediator, or with their lawyers/support person. This private discussion is also the perfect opportunity to prepare for negotiations.
Negotiation
Now it’s time to negotiate. The mediator will help both parties identify and explore their options for an agreement
Agreement
If the parties come to an agreement, the mediator will put the agreement in writing. This means that the agreement is legally binding.
 
Learn More About the Family Mediation Process
Should you and your formal spouse wish to learn if the family mediation process is for you, we can help. We have staff who hold formal accreditation in Family Dispute Resolution Practitioner (FDRP). Find out about our mediation services by giving us a call on (07) 3211 4920.
The post Family Mediation Process: A Step-by-Step Guide appeared first on Emerson Family Law.

Property settlement is the arrangement made between two parties to divide all assets and property following a separation. Whether it is a marriage or de-facto relationship, all financial ties between these parties must be finalised. Every situation and relationship is different, so there is no one straight answer for how property settlement after separation should be dealt with. However, some answers to the most common questions may help and guide you for your unique case. Here are our most frequently asked questions surrounding property settlement.
 
What is Property?
‘Property’ refers to all assets owned by either or both parties and includes almost anything of value, such as real estate, business interests, shares, vehicles, superannuation and artwork.
Property settlement after separation is not limited to property acquired during the relationship or marriage. It is possible to include property owned before the relationship.
Liabilities and debts are also regarded as property and will be divided regardless if they are held jointly or individually.
 
Do All Separating Couples Need to Have a Property Settlement?
Yes, definitely. It is important to finalise all financial ties with your ex-partner as soon as possible to avoid either party making any claims for Property Settlement later down the track.
If you choose to leave your property settlement to a later date, the court will look at all property available for distribution at the date of the proceedings rather than the date of separation. This means that all additional property and debt gained after the separation will be considered.
An example of assets acquired after separation includes one party winning the lottery. If a large sum of money is won post-separation, this will be considered by the court when making property settlement decisions.
Issues regarding each party’s financial responsibilities after separation also need to settled if there are things like mortgage or personal loan repayments still outstanding.
 
How Does the Court Determine Who Gets What in a Property Settlement After Separation?
Following a separation, Section 79 of the Family Law Act 1975 asks a few questions in order to determine the division of assets. Here is the four-step process:

Determine the net assets, including liabilities and superannuation of the parties.
Look at the financial contributions of each party to the married or de-facto relationship.

Financial contributions include wages and lotto winnings.
Parental contributions are the duties performed by the parents including raising the children, dropping them off to school and helping with their homework.
Homemaker contributions are the domestic duties performed in the relationship, for example, cooking dinner. The quality of the homemaker contribution is irrelevant to the court.
Non-financial contributions are contributions that have resulted in the increased size of the net asset pool. An example would be renovations to a house.

03. The party’s future needs, including any health issues and the ability to earn money.
04. The overall outcome is just and equitable. The court will look to see if the proposed settlement is fair and takes into account the contributions made by both parties and their current and future needs.

Are There Time Limits for Property Settlement?
A property settlement after separation does come with some time limits. A married couple must apply for a property settlement within 12 months of a divorce finalisation, whereas a de-facto couple must apply within two years of separation.
Couples who fail to commence property settlement proceedings within these time limits may lose their ability to apply to the court. However, it is possible to seek the court’s permission to apply for a property settlement “out of time”. This is not guaranteed and can be quite costly.
 
How is a Property Settlement Formalised?
If both parties have reached an agreement, the best way to finalise and formalise a property settlement after separation is through Consent Orders. A consent order is a written agreement that is approved by a court. In property matters, the Court must be satisfied that the settlement is just and equitable.
Another option to formalise a property settlement is through a binding financial agreement. This agreement does not require the court’s approval, however, it does require legal advice, preferably from an independent law firm like Emerson Family Law, prior to execution.
 
What About Superannuation?
Under PART VIIIB of the Family Law Act 1975, Superannuation is considered property. However, it is a different type of property because it is an asset held in trust. Superannuation splitting laws in Queensland allow separating couples to value their superannuation and split payments, however, this process is not mandatory. There are three options for splitting superannuation:
1. A formal written agreement to split superannuation;
2. Consent orders to split superannuation; or
3. A court order to split superannuation (only if you cannot reach an agreement with your ex-partner)
 
Have More Questions About Property Settlement After Separation?
If we have not covered one of your questions regarding property settlement after separation, we welcome you to contact us. Our team of experienced family lawyers can also help you with any questions or concerns related to divorce or separation, children’s matters and property law.
The post Top FAQs About Property Settlement After Separation appeared first on Emerson Family Law.

Families come in many forms, and step-parents are an increasingly common component of the modern family structure. The relationship between a step-parent and a step-child can be strong, and more often than not, a step-parent can play a vital role in the child’s life. But what happens to this parent/child relationship in the event of a divorce? The laws for determining the custody rights in Australia for a biological parent do not apply to step-parents. So, what custody rights do step-parents have?
 
What is a Step-Parent?
To determine a step-parent’s custody rights in Australia, we must look at what a step-parent actually is. Under Section 4 of the Family Law Act 1975, a step-parent is a person who:
“a) is not a parent of the child; and
b) is, or has been, married to or a de facto partner (within the meaning of section 60EA) of, a parent of the child; and
c) treats, or at any time while married to, or a de facto partner of, the parent treated, the child as a member of the family formed with the parent.”
The definition of a step-parent also includes same-sex couples in a de fact relationship.
 
Does a Step-Parent Have Legal Parental Responsibilities?
Parental responsibilities refer to all duties, powers and responsibilities that a parent has concerning their child.
While a step-parent often performs parenting roles, they do not have a right to share parental responsibilities or custody rights in Australia. This is because no legal relationship exists between the step-parent and step-child.
As a result of this, a step-parent is not legally able to authorise medical care, sign school forms, obtain legal documents such as birth certificates or apply for passports. However, there is an exception should an emergency medical situation occur: if neither of the child’s biological parents is available, a step-parent may be asked to give consent for a procedure. It is also important to note here that after the biological parents separate, they still share parental responsibility unless one parent asks the court for sole responsibility.
 
Is a Step-Parent Required to Pay Child Support?
It is the primary duty of the biological parents to financially support the child. In certain circumstances, the court can order a step-parent to pay child support. When deciding whether a step-parent should pay child support, the court will look at:

the level of financial support from the child’s biological parents;
the length and type of relationship between the step-parent and the child’s biological parent, and how that child was financially supported during the relationship; and
the relationship between the child and the step-parent.

 
How Do I Get Custody Rights in Australia as a Step-Parent?
For a step-parent to gain any custody or visitation rights of a step-child, the first step is to try to reach an agreement with both biological parents. If an agreement cannot be made, a step-parent can apply to have parenting orders put in place.
Under Section 64B of the Family Law Act 1975, a parenting order may deal with a wide variety of custody rights in Australia, such as living arrangements, time spent with the step-child, maintenance and allocation of the some parental responsibility. Step-parents can apply to the Family Law Courts for a parenting order as ‘other people significant to the care, welfare and development of a child’. A parental order is usually made with the agreement of the child’s biological parents.
To determine whether or not a step-parent should have any parental responsibility, the court will make a decision based on the best interests of the child. The court’s primary position on shared parental responsibility generally exists between the biological parents of the child. A step-parent may only be given parental responsibility in special circumstances, for instance, if the biological parents aren’t available or there are concern’s for the child’s welfare.
 
Seek Legal Advice for Custody Rights in Australia
Custody rights in Australia can be complicated, particularly for step-parents going through a divorce. If you believe you have the right to shared parental responsibility of your step-child, please contact the team at Emerson Family Law. We specialise in children’s matters as well as divorce and separation law.
The post What Are Your Custody Rights in Australia as a Step-Parent? appeared first on Emerson Family Law.

Changing a child’s surname is a common occurrence after separation or divorce. The reasons for making this decision are unique to each case. Usually, a mother has reverted to her maiden name and wishes to change their child’s name as well. But, how easy is it to legally change a child’s surname? Our family lawyer in Brisbane from Emerson Family Law weighs in on this particular issue and offers some legal advice.
 
You Need Consent From Both Parents
Under Section 4 of the Family Law Act 1975, changing a child’s name is considered a major long-term issue in relation to the care, welfare and development of that child. Before a child’s surname can be changed, there must be consent between both parties. This will apply to your situation if:

The other parent is listed on the child’s birth certificate; and
The other parent also has ‘Shared Parental Responsibility’ for the child.

Shared Parental Responsibility is where both parents have a right to be involved in all long-term decisions concerning their children. Our family lawyer in Brisbane states that if no agreement is made, a parent will need to apply to the Court for an Order to change a name.
 
A Single Parent Applying for a Name Change
A single parent can apply to change their child’s surname if any of the following applies:

If you are the child’s mother and the father’s details are not listed on the birth certificate;
A parent has a Queensland Magistrates Court Order; or
One parent is deceased (death certificate required).

If one parent is not listed on the child’s birth certificate, they may not legally be recognised as the parent, therefore forfeiting any parental responsibility. Our family lawyer in Brisbane would like to stress that there are certain situations where a parent not listed on a birth certificate is still legally recognised as having shared parental responsibility. Consult a legal professional if this applies to you.
 
Parental Responsibility and Changing a Child’s Surname
Under Section 61DA the Family Law Act, there is a presumption that both parents have equal Shared Parental Responsibility. According to our family lawyer in Brisbane, this presumption does not apply if:

A parent engaged in abuse of the child; or
A parent engaged in family violence; or
It is not in the best interests of the child

Shared responsibility also only applies unless a Court Order has been made to specifically name only one parent has having ‘Sole Parenting Responsibility’ of the child. This means that a parent does not have to consult with the other parent before making any long-term decisions.
 
Process to Change a Child’s Surname
According to our family lawyer in Brisbane, the process to change a child’s name is quite simple.
Assuming that both parents have approved the name change, or, one parent holds Sole Parental Responsibility, an application must be completed and sent to the Registry of Births, Deaths and Marriages in the State where the child was born. If the child was born overseas, the application should be made in the State where the child resides, as long as they have lived there for at least 12 months.
If a child is 12 years or older, they must also agree to the name change, unless the Court approves and orders the change.
Limits apply to how many times you can change your child’s name:

First names can only be changed in the first 12 months after birth and once before they reach 18; and
Surnames can be changed once every 12 months.

It is not illegal for a parent to start using an unregistered surname for their child. This is referred to as an ‘informal’ name.
 
Considerations For a Name Change
If the Court deems a child unable to comprehend the consequences changing their name due to age or disability, the Court will make the decision based on whether or not it is in the best interests of the child. In addition to the child’s welfare, the Court will also consider:

The reasons for the name change;
Any long and short term effects of the change;
Any confusing of identity for the child;
Any embarrassment to the child;
The effect the name change would have on the relationship between the child and the other parent; and
How the child identifies with each parent.

 
Speak to a Family Lawyer in Brisbane About Changing Your Child’s Name
If you need any additional legal advice specific to your case, please get in touch to speak to a family lawyer in Brisbane. Our team are qualified professionals with experience in all children’s matters. Make an enquiry through our website, or call us on 07 3211 4920.
The post Changing a Child’s Surname – Advice From a Family Lawyer in Brisbane appeared first on Emerson Family Law.

Emerson Family Law is proud welcome Accredited Family Law Specialist, Penelope Stevens, to our team. Penelope brings with her a wealth of knowledge and experience and we are delighted to have her on board!

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Recent Changes to Domestic and Family Violence Law in Qld   The Family Law Section of the Law Council of Australia has indicated that as of April 2015, the Child Dispute Services section in the Brisbane and Melbourne Registries of the Family Court and Federal Circuit Court of Australia will be trialing a new approach…

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We are pleased to announce that we are now able to offer services in Will preparation and amendment as part of our ongoing commitment to clients. The updating of a Will is a process that goes hand-in-hand with the other family law services that we have been providing to separating parties for many years. If…

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By Gavin Lai – Senior Associate at Emerson Family Law The Attorney-General Senator George Brandis has introduced the Family Law Amendment (Financial Agreements and Other Measures) Bill 2015 (“the Bill”). The Bill, if and when passed, will be another significant development in Australian Family Law with proposed changes to the Family Law Act 1975 (“the…

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Our New Satellite Office Address 175A Swann Road, Taringa QLD 4068.

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  Myth 1: “The Mother always gets the kids. In Australia, a parent does not have legal “custody” (or any legal rights) over their child. There is no legal presumption that a child must (or should) live with the Mother and spend every second weekend and half of the school holidays with the Father. Rather,…

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Child support stems from the fundamental principle that “each parent of a child has a duty to maintain their child.” Child Support Agreements After separation, parents, whether married or de facto, can reach an agreement regarding the type and level of child support that is paid from one parent (“the payer”) to the other (“the…

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Abuse – in relation to a child, means (for the purposes of the Family Law Act 1975): An assault, including a sexual assault, of the child; or A person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the…

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