Parenting orders in the pandemic: How does COVID-19 influence my parenting orders?

Parenting orders in the pandemic: How does COVID-19 influence my parenting orders?

COVID-19 has generated a great deal of uncertainty and anxiety in the community. One concern many parents may have is what to do if their ability to comply with parenting orders from the court is affected by COVID-19; particularly as a result of the progressive shut down and restriction on movement that Australians are facing. In this article we will clarify the court’s position in relation to the parties’ obligations towards parenting orders in light of this pandemic.

The best interests of the child

The paramount concern of the family courts is ensuring that decisions are made in the best interests of the children and those interests need to be balanced with the child’s health and safety.

In a media release, the Honourable Chief Justice Will Alstergren of the Family Court emphasised that the best interests of the child in the context of COVID-19 means ensuring the safety and wellbeing of the child and “caring for and determining the practical day-to-day best interests of a child”. However, consistent with this interest, parents must still, as reasonably as possible, comply with court orders in place with respect to parenting. This includes ensuring that time spent with the children is acted upon by each parent or carer insofar as the parenting orders necessitate.

Sensible and reasonable

In highly uncommon circumstances such as a global pandemic, strict compliance with parenting orders can become somewhat difficult, such as when orders stipulate that time with a parent or carer is to occur at a designated location which may not be operating anymore due to forced closures. Another example is when state borders are closed and parents are unable to facilitate transport for the children. There are also the pressing health issues that may complicate those situations such as when one parent, or someone close to that parent, having been exposed to COVID-19 goes into quarantine, and this may prevent the children from spending time with that person.

In these situations, the courts require parties to find practical solutions to overcome these difficulties that are both sensible and reasonable. It also emphasises that members of a family are important to a child and the risk of contagion to vulnerable members of the child’s family and household, such as grandparents or sick relatives, should also be taken into consideration.

Approaching the court electronically

If, as a result of this pandemic, parties are unable to comply with their existing parenting orders, the parties are encouraged to reach an agreement then approach the court electronically to seek a variation of those orders. In the meantime, parents and carers should, as soon as practicable, ensure they maintain contact with the children through platforms such as skype, zoom, FaceTime, social media or telephone.

Seek legal advice

It is important to be fully aware of the impact COVID-19 may have on your parenting orders and family law matters generally. If you would like further information, please do not hesitate to contact one of our experienced family law solicitors on 9963 9800 or via email at law@etheringtons.com.au.

Etheringtons Solicitors extends our deepest sympathies to those experiencing hardship or health concerns during this difficult time. Further information about COVID-19 and how to protect yourself can be found at: www.health.gov.au.

Relocation After Separation – What you need to know

Relocation After Separation – What you need to know

In family law, one issue which may arise in a children’s matter is ‘relocation’. Relocation is the legal term for moving with your child to another town, state or country after a divorce or separation. Relocation may raise issues in relation to parenting arrangements if the moving interferes with the ability of the non-relocating parent to live with or spend time with their child.

It is preferable that the parties try to amicably resolve all the issues that will arise as a result of the planned relocation and the agreement reached can then be formalised by filing consent orders. If this is not possible, the parties may apply to the Family Court of Australia for a judicial determination. However, if you relocate without a court order or without the consent of the non-relocating parent, a court may require you and your child to return to your previous location until it has considered the case.

The Law on Relocation

Issues around relocation are not explicitly referred to in the Family Law Act 1975. However, the overriding consideration of the Family Court in all matters concerning children, including variations to living arrangements, is determining what is in the best interests of the child. While the issue of relocation is not mentioned in legislation, there are countless court cases which provide guidance.

Careful consideration should be given to equal shared responsibility for the child, and this should be weighed against the right to freedom of movement by the parent wanting to relocate.

Other Factors Considered

There are a variety of factors that the Family Court may consider when determining an application for relocation. Below is a list of potential considerations:

  • Reasons or interests of the parent proposing the relocation;
  • The reality of the parents’ circumstances such as the availability of affordable and appropriate housing, employment and family support;
  • The impact of the proposed orders on the mental health and wellbeing of each parent;
  • The effect the relocation would have on the non-relocating parent’s ability to see their child;
  • The nature of the relationship between the child and each parent, as well as any other significant people in the child’s life such as grandparents and extended family;
  • The impact the proposed relocation would have on the child’s relationships with their parents and significant people in their life;
  • Travel costs of the non-relocating parent to see and spend time with their child; and
  • Proposals for how the non-relocating parent will be able to spend time with and communicate with their child.

Seek Legal Advice

If you have any questions or concerns regarding relocation, we can provide additional information and advice to you regarding your situation. If you would like to discuss your concerns with a legal professional please contact us on (02) 9963 9800 or at law@etheringtons.com.au

Grandparents: Saving your rights to see your grandchildren

Grandparents: Saving your rights to see your grandchildren

If you are a grandparent and face the sad circumstance of a break up in your family group, through separation or unforeseen events, you may be worried about your right to continue seeing much-loved grandchildren. Unfortunately, some grandparents only see their grandchildren at crowded school events or from the sideline at sporting occasions. In Australia, grandparents have legal rights to approach courts to obtain orders which allow them to spend time with their grandchildren.

If you have concerns about the welfare of your grandchildren, you may need guidance about how to help protect them.

What rights exist for grandparents?

When it comes to the law, grandparents do have some rights. The law’s focus is on the well-being of the child. That includes a child’s right to know and have contact with both parents and others seen as significant for their care and development, including grandparents. However, it is important to note that grandparents do not have an automatic right to spend time with their grandchildren; rather they have standing to seek orders from the courts.

Parents who are separating often make plans for the future care of their children informally, and will agree on where their children will live. Some may draw up a written parenting plan setting out their arrangements for caring for the children. They can make this more formal by registering it with the courts in consent orders.

If you are concerned about your future contact with your grandchildren, you can ask to be included in such plans if they are being drawn up. If you can’t agree with separating parents about your future contact with the children, you can apply to the courts for parenting orders yourself.

Are the rights automatic?

Grandparents don’t have automatic rights to see their grandchildren. However, amendments to the law have given them recognition and status. The courts emphasise the importance of children having contact with as much of their wider family as possible and of growing up feeling part of an extended and supportive family group. Others with a close ongoing relationship or who can show they are involved in the children’s welfare can also apply to the courts for parenting orders.

Twenty years ago, in a case where a grandmother had applied to be allowed to have contact with her grandson, the judge stated that “we live in troubled economic times and by way of example, in 20 years’ time, the child may have need for finance in establishing a house, in purchasing a car, in any number of areas. The more people that are loving and close to him and can help him, who feel an obligation towards him, the healthier it would be for the child.”

An order may enable you to have some visits or communicate with your grandchild, perhaps by phone or email. It will be up to the court to decide what should happen, based on what it thinks is in the child’s best interests. Although you have a right to apply for parenting orders, this does not mean the courts will necessarily decide in your favour.

What is the process?

The law requires that families first attend family dispute resolution or mediation before going to court. An independent person trained in helping families discuss their differences will try to help everyone come to an agreement.

If mediation fails, you will need legal advice before going to court and you will need a certificate from an accredited dispute resolution practitioner to show you’ve attempted mediation before you can take court action. You also need to find out how strong your case is, what forms and documents you will need to lodge with the court to support your case (these are called affidavits), what orders you should ask for, which court is better to start the case in, and the costs of taking legal action. Even if you decide to represent yourself in court, it is recommended to get legal advice about how to prepare your case. You must remember that the child’s best interests are always the first priority. You will also need to consider the practicalities of being able to implement any arrangements you wish to make.

Grandparents can sometimes get involved and can apply to the Children’s Court to have the children placed in their care.

You can apply to court for your grandchildren to live or spend time with you whether their parents are together or separated. You will not need a certificate of dispute resolution if there is a fear of violence or the matter is urgent, or a party can’t take part in mediation because of a disability.

In cases where there is strong parental opposition to court orders sought by grandparents, a court appointed family consultant may be required to prepare a family report for submission to the court, to assist the court in deciding whether to grant a parenting order for the grandparent.

If you are concerned about your grandchildren’s welfare for any reason, or know people who are, please call us on (02) 9963 9800 or email law@etheringtons.com.au.

Will I get 50% of everything in a property division?

Will I get 50% of everything in a property division?

Following a separation, the law seeks to answer four key questions in order to ascertain how assets will be divided between the parties to a separation.

1. What is the net asset pool of the parties?

In order to determine the asset pool of the parties, a balance sheet, which sets out in detail the assets, liabilities and superannuation of each of the parties, is required. Assets are everything of value, and may include, but are not limited to: real estate, shares, motor vehicles, furniture etc.

Prior to the commencement of property settlement proceedings, both parties are obliged to make full and frank disclosure about their respective financial circumstances. Failure to do so may result in a party being held in contempt of court. This is a serious outcome and implications may arise if you do not comply with this duty.

2. What have each of the parties contributed to the net asset pool?

In order to determine what each of the parties contributed to the net asset pool, the law looks to what assets and liabilities each party entered into the relationship with and what each party provided during the relationship, both financial and non-financial. Contributions may be in the form of income from employment, running a business, money received from a family member in the form of gifts or inheritance, or even compensation payments. Homemaking and parenting contributions are also important to consider. After assessing both financial and non-financial contributions, if the parties cannot agree, a court will determine each party’s overall level of contribution on a percentage basis.

3. What are the parties’ future needs and how might they need to be adjusted?

When a court has to determine the future needs of each of the parties, this may cause an adjustment to be made to their contribution percentages. The relevant factors in assessing those needs derive from s75(2) of the Family Law Act 1975 (Cth). In summary, the future needs of a party may include costs associated with caring for a child, especially where the parties’ contributions in this regard have been in unequal proportions, where one of the parties or children have ongoing health issues which need to be taken into consideration, as well as where there is likely to be income disparity between the parties or even where there is an age difference. Once the contribution percentage is adjusted, this will then be applied to the net asset pool in order to determine the division of property as a dollar figure.

4. Is the outcome fair and equitable?

The final step in a court’s process is to determine the practical effect of the proposed property settlement and whether it is just and equitable. If it is, the process is concluded. If it is not, an adjustment is normally made to achieve a just and equitable position. For example, an adjustment may be required where one of the parties is the sole carer of the children and is responsible for supporting those children.

Once the dollar amount that each person is to receive is known, the amount is converted into assets that are to be retained by each of the parties. This may involve a deduction of liabilities that would be retained in order to determine if a payment is required.

Seek Legal Advice

Property settlement proceedings can be complex. It is imperative that you are aware of all your obligations and entitlements, as well as the process in general.

If you would like further information regarding property settlement or if you have any general family law enquiries, please do not hesitate to contact Andrew Ters on 02 9963 9800 or via email at law@etheringtons.com.au.

Freezing Orders: Common Misconceptions

Freezing Orders: Common Misconceptions

We will all be involved in a dispute at some point in our lives. We may even reach a point where we want to take someone to court in order to reach an outcome that we desire. Have you wondered what happens if the other person is not able to pay up if we win against them? If we reasonably believe that the other person is going to sell their property in an attempt to avoid paying if they lose, asset freezing orders (also known as asset preservation orders or Mareva orders) are one way to make sure your opponent has enough resources to meet a judgment against them, however, there are lots of misconceptions about when and how you can get one. This article tries to make it plain and simple, and to hopefully bust some of the following myths:

Myth #1:  Their purpose is to seek security for a pending Judgment 

Too often, applications for a freezing order are made with the sole intention of seeking security for a judgment which a plaintiff hopes to gain in the future. There are certain requirements you must meet before the court will make a freezing order.

Myth #2:  They’re easily lodged with few requirements

It is an extreme order which will not be granted lightly. There are a variety of requirements that must be satisfied before the court will allow the order.

Firstly, there is a minimum standard to which the case must be argued. The case must be a ‘good arguable case’, that is, you must be able to convince the court that you have a serious issue to be tried by the court.

Next, the plaintiff must prove that there is a real danger that the other person may dispose of his or her assets in order to avoid paying if you win. You will be required to provide significant evidence to support this claim.

Any judge hearing such an application will ask: ‘is there an imminent transaction and have you given notice to the other side?’

Finally, the court will also consider the nature of the defendant’s assets – for example, the greater the liquidity the greater risk of dissipation, the financial standing of the defendant including their credit history.

Myth #3:  You can freeze all assets held by the respondent

When applying for a freezing order, the plaintiff cannot simply request a blanket freezing order over all of the known assets a defendant possesses. The value of the assets covered by the freezing order cannot exceed the likely maximum amount of the reasonable claim by the plaintiff.

The order must also exclude assets for dealings by the respondent for legitimate purposes. For example, payments for ordinary living and business expenses and dealings in the discharge of contractual obligations that were incurred before the freezing order was made.

Seeking legal advice

It is imperative that you are accurately informed of the obligations and requirements of a freezing order before lodging an order with the court.  If you would like further information regarding freezing orders or general litigation advice, please do not hesitate to contact one of our experienced litigation solicitors on 9963 9800 or via email at law@etheringtons.com.au.

Inheritances and Family Law

Families and money can sometimes be a volatile combination. This can be especially complicated when a divorce or separation occurs and a new will isn’t drawn up to reflect the changed circumstances.

When is an inheritance an asset for family law purposes?

The simple answer is “almost always”. But the answer is not always as simple as that.

Why is an inheritance an asset?

When a separating couple needs to divide their assets, they must work out the pool of net assets first before assessing the appropriate split of the parties’ assets. That pool includes all the assets and liabilities in each person’s name and in the parties’ joint names, as well as each person’s share of an asset owned jointly with another person.

If one person received an inheritance before or during the relationship, that inheritance would normally form part of the pool of assets available to be divided.

Does that mean my partner gets half my inheritance?

No, not necessarily. Just because an asset is included in the pool of assets available for distribution does not mean that the asset or the whole pool will be divided 50/50. Each matter is considered on a case-by-case basis.

Importantly, once the parties have worked out what is in the pool of net assets, they must then consider what contributions they each made and their respective future needs, in order to assess their entitled percentage split of the net assets they will each receive.

What are contributions?

When working out which party made what contribution, the Family Court considers the parties’ financial contributions – i.e., who earned what, who brought what lump sums into the relationship, who bought what and who paid for what – and also non-financial contributions – such as being a homemaker and parent, physically renovating a home or landscaping a garden, managing the parties’ financial affairs, etc.

After a long relationship where there haven’t been any significant inheritances or other financial windfalls, the Court usually finds that financial and non-financial contributions during the relationship were roughly equal, unless special circumstances apply.

An inheritance received by one party before the commencement of the relationship would be treated as an initial financial contribution by that person – i.e., money or assets that person brought into the relationship. Similarly, an inheritance received by one partner during the relationship is usually considered to be a financial contribution by that person.

In these circumstances, depending on factors such as the size of the inheritance, when it was received, what it was used for and the parties’ other contributions, this would generally mean that the person who received the inheritance would be treated as having made greater contributions during the relationship.

What about an inheritance received after separation?

This situation is less clear cut. The Court usually considers an inheritance by one party as a sole contribution by that person. Generally, this will usually mean that the other party did not contribute to the post-separation inheritance and it should not be included in the pool of assets to be divided. However, each matter is dealt with on a case-by-case basis and while this may be a potential result, it is always dependent on the facts of the case and the circumstances of the lead up to the inheritance.

For example, if the post-separation inheritance had been received from the husband’s mother and the wife had had a close relationship with her mother-in-law and had cared for her during an illness, the Court might find that both parties had contributed to the receipt of the inheritance and therefore both parties will be entitled to a share of the inheritance.

Future needs

After working out financial and non-financial contributions, the future needs of the parties are assessed  before determining a split of the net assets and whether any adjustments should be made in favor of the party in need. Future needs include things like income, earning capacity, financial resources, ongoing care of children, age, health, etc.

An inheritance, even one received after separation, may be on this final step. The reason for this is, the recipient of the inheritance would have greater financial resources and may be receiving income from an inherited investment which may well mean that person’s future financial circumstances may significantly outweigh the other person.  In such a case, the court would probably rebalance the division of the net asset pool in favour of the other partner by way of an adjustment which is derived from section 75(2) of the Family Law Act (Cth).

Summary

An inheritance received before or during a relationship will almost always be treated as an asset available for distribution between separating parties, whereas an inheritance received after separation will usually be found not to fall into that pool of assets. However, that does not necessarily mean that the other person is entitled to half the inheritance.

The receipt of a large inheritance will almost always have a significant impact towards the determination of contribution of the parties. In addition, an inheritance, including one received after separation, could have an impact towards the last step, being the determination of future needs of the parties and whether any adjustments ought to be made.

Finally, once the parties have been assessed as to the net assets, what contributions were made, whether there are future needs, the Court then looks at whether the proposed split of net assets is just and equitable.

 

Every case is different and how an inheritance might be treated in your situation will depend on your particular circumstances. If you need assistance or advice on how to proceed please call us on (02) 9963 9800 or email law@etheringtons.com.au.