May 29, 2022 | Family Law
De facto relationships are legally defined as a relationship between two people, who are not legally married or related by family and live together on a genuine domestic basis.
Does a de facto relationship require cohabitation?
There have never been any cases where the court has ruled that a de facto relationship exists where the couple has never lived together. However, the Family Court has indicated that the concept of living together is not necessarily based on the proportion of time a couple spends living in the same property.
Factors considered when defining de facto relationships
In practice, the court decides if a de facto relationship exists based on a number of factors, including:
- The duration of a relationship
- Whether a sexual relationship existed
- The nature of the couple’s common residence
- The degree of financial dependence or interdependence between the couple
- The degree of mutual commitment to a shared life
- The ownership, use and acquisition of property
- The care and support of children
- The reputation and public aspects of the relationship
Limitation period
If you were in a de facto relationship and have separated from your partner, you have a two year time limit from the date your relationship ceased to make a property claim against them.
There are situations when this may be extended and you should seek professional legal advice to determine whether this may apply in your circumstances.
Further Information
If you would like more information on how we can advise you following a relationship breakdown, whether it is a marriage or de facto relationship, do not hesitate to contact us on 9963 9800 or via this contact form.
May 26, 2022 | Family Law
Family law proceedings involving children can be challenging and daunting. The main concern of the court during these proceedings is to ensure that the child’s best interests are met. However, this may be challenging in certain situations, especially when there are issues of violence or conflict between parents. In these situations, it is common for an Independent Children’s Lawyer (ICL) to be appointed in a family law court case.
What is an Independent Children’s Lawyer (ICL)?
In the Federal Circuit and Family Law Court of Australia an ICL can be appointed to represent the child and their best interests during proceedings. An ICL can be appointed by application by one of the parties or they can be appointed by the court in one of the following circumstances:
- There are allegations of abuse or neglect of the children.
- A high level of conflict exists between the parties.
- Allegations have been made as to the children’s views and the children are of a mature enough age to express their views.
- Allegations of family violence have been made.
- One or both of the parties or the children have serious mental health issues.
- The matter has difficult and complex issues which warrant the appointment of an ICL.
What is the Role of an ICL?
An ICL has numerous roles and duties which include:
- To represent and promote the child’s best interests during family law proceedings
- To be impartial and provide an independent opinion about which decisions or arrangements will be in the child’s best interests
- To ensure that the child’s views on any matters relating to the proceedings are fully put before the court, while also minimising any trauma the child may experience during the proceedings.
- To arrange for any evidence, such as from relevant experts, to be put before the court
- To facilitate the participation and involvement of the children in the proceedings. This depends on the age and maturity of the children and the nature of the proceedings.
- To facilitate in settlement negotiations where appropriate.
Determining the Best Interests of the Child
To determine what is in the best interests of the children, an ICL may:
- Meet with the children, unless they are under school age or there are exceptional circumstances
- Speak to the children’s counsellors, school teachers and principals.
- Examine documents from organisations such as schools, Department of Family and Community Services and the police and obtain the medical, psychiatric and psychological records of the children and their parents. These documents are obtained by way of subpoenas issued by the ICL during the proceedings.
- Question witnesses including parents and experts at any hearings.
- Arrange for a family report to be prepared by a court-appointed family consultant. A family report provides an independent assessment of the issues in the case. Therefore it can assist the Judge to make decisions about arrangements for the children. It may also help the parties reach an agreement.
Contact Us
If you would like to discuss your family law matter with one of our family lawyers, please contact us on 9963 9800 or message us here.
May 24, 2022 | Family Law
Grandparents are important people in children’s lives and can play a significant role in family law matters. The Family Law Act 1975 (Cth) contains provisions allowing grandparents certain rights in relation to their grandchildren.
Rights of Grandparents Under the Family Law Act
The Family Law recognises that children have the right to maintain regular communication with people who are considered important to their welfare, care and development. However, this does not mean that grandparents have an automatic right to spend time with their grandchildren.
Unless there are allegations of abuse or violence, it would be unusual for the court not to make an order for a child to spend time with their grandparent. Among the factors that the court will consider is the nature of the relationship between the grandparent and child, including whether it is ongoing and of significant value to the child. In some cases, it may be necessary for grandparents to apply for access or custody of grandchildren where the parent is:
- Unwilling to care for the child;
- Unable to provide for or care for the child; or
- Lacking the capacity to care for the child.
Alternative Dispute Resolution options
Through mediation or settlement negotiations with your children and their spouse, you may be able to reach mutually agreed arrangements about the time you spend and communication you have with your grandchildren. The agreement you reach can be included in a written agreement called a parenting plan which is a formal agreement between your children and their spouse. A parenting plan is not legally binding or enforceable but will be considered by a court if there are later disputes.
Applying to the Court
If you have been prevented from seeing your grandchildren, you are able to rely on the Family Law Act 1975 to apply to the court. You may seek orders that allow you to communicate with your grandchildren, spend time with them, or in some circumstances even live with them. As a grandparent, you are able to do this whether or not the parents of the children are together or separated.
What often occurs when a family relationship breaks down is that the grandparents will only be able to spend time with their grandchildren when their child is spending time with them. The Family Law Act 1975 recognises the importance of children having a relationship with their extended family members including grandparents, however, what is in the best interests of the child will remain the court’s priority.
Contact us
We know that the divorce process can be strenuous for both parties. If you would like more information on how we can assist you with your property settlement matter or any other family law matters, do not hesitate to contact us on 9963 9800 or via our contact page.
May 23, 2022 | Family Law
Social media has become a valuable tool for families going through the process of separation or divorce as it allows for easy and instant communication. Whether it’s organising parental arrangements between separating parties, or allowing parents and kids to stay connected, social media is undoubtedly a more efficient way of connecting than ever before. However, it is important to remember that social media must be used responsibly, particularly when parties are involved in family law proceedings, as social media posts may end up being used in evidence to the detriment of the author. In this blog, we will review the current position on social media, how it may be applied as evidence in family law, and the repercussions that may flow from negative or derogatory posts.
What Does The Law Say?
The Family Law Act states that it is a punishable offence to publish or broadcast any account of family law proceedings which identifies any parties, children or witnesses involved in the proceedings. This is an important provision as it aims to protect the privacy of families going through the often stressful process of family law proceedings. This extends to all forms of publishing, including posting on social media or the internet generally. The court also has the power to order you to refrain from posting or force you to remove existing posts.
Moreover, challenges on a party’s credibility are fairly common in family law cases. For example in a case determining which parent should have primary custody of a child, if one party has posted photographs or comments on social media that may indicate they are not a suitable guardian, the court may take this into account. One judge described the usage of social media for the purpose of damaging another party’s case as “an unfortunate and increasing feature of modern litigation”.
What Material Can Be Used?
Photos from Facebook or Instagram posts and profiles, private messages or pictures can be used as evidence and are gradually being relied upon in family law proceedings. Some examples of different forms of social media include:
- Text messages or direct messages on apps such as WhatsApp, Facebook Messenger, Instagram, or emails;
- Photographs of parents acting in an unsafe and/or irresponsible manner;
- Facebook, Twitter or Instagram posts relating to the location of a child which was not agreed upon by the parties;
- Derogatory or hurtful social media posts; and
- Social media posts at expensive venues when the party claims to be financially struggling.
A Recent Example
In a recent decision, a father sought a court decision that his child be returned to New Zealand from Australia. The mother objected to the relocation and asserted that the move to Australia had been agreed upon by the parents. The father presented evidence of the mother’s Facebook posts that were contrary to this assertion, as well as comments which showed the Australian travel was purported as a ‘holiday’. In this case, the Court ultimately ordered that the child should be returned to New Zealand.
Get Legal Advice
Our experienced family law team at Etheringtons Solicitors are ready and willing to assist you with your matter and take the stress out of the divorce or other family law process. If you need any assistance please don’t hesitate to get in contact with one of our lawyers via email at [email protected] or call us on 02 9963 9800 for a no-obligation discussion.
May 22, 2022 | Family Law
It has become common for couples to enter into prenuptial agreements as a way to protect their assets and finances in the event of a separation. The idea of talking about the end of your marriage before it has even begun can be rather daunting and intimidating. However, while no one ever plans for divorce, it can happen, and a prenuptial agreement may help to limit unnecessary stress and conflict in these circumstances.
What is a Prenuptial Agreement?
A prenuptial agreement is a legal agreement made between the parties in a relationship which outlines how their property and assets will be dealt with in the event of their relationship ending in separation or divorce.
Prenuptial agreements can be signed by couples before they get married. If one spouse has significantly more assets than the other, or their parents have businesses or inheritance that they wish to retain if the marriage ends, a prenuptial agreement can ensure that all of these assets are protected. It is also possible to enter into a prenuptial agreement after a couple is married. For example, if during their marriage, one of the spouses’ parents win the lottery, the parents may wish for the inheritance money to be passed down to their child only.
In June 2000, prenuptial agreements were officially sanctioned by legislation in Australia to enable couples to think about and plan their future rights and responsibilities through a binding financial agreement. The ability to sign a prenuptial agreement extends beyond marriage and is also open to de facto and same-sex couples.
What Do Prenuptial Agreements Cover?
Unfortunately prenuptial agreements are not romantic. They are a practical way of ensuring both partners are protected in the event the relationship does not work out. The terms of a prenuptial agreement can cover a wide variety of matters including:
- What assets are considered marital assets and what are non-marital assets. For example, the matrimonial home where the couple reside may be considered marital, but any assets bought by either partner prior to the marriage may be considered non marital.
- What assets will be divided and in what proportion in the event of a divorce.
- What will happen in the event of the death of one partner? In most states, your spouse will inherit a portion of your estate if you pass away, and vice-versa. If you do not wish for this to happen, this can be covered in the terms of your prenuptial agreement.
- Anticipated changes in the future such as children. A prenuptial agreement can cover whether the terms will change if children are involved, whether they are to inherit all of the assets, etc.
- A predetermined amount of spousal maintenance.
Prenuptial agreements do not cover custody of children or child support payments. Other provisions such as clauses about a person’s weight, frequency of sex, household cleanliness and infidelity punishments are sometimes included, but they are often deemed unenforceable by courts. Prenuptial agreements are predominantly used for the financial arrangements of a couple.
How Do I Obtain a Prenuptial Agreement?
Australia has strict requirements for valid prenuptial agreements. If they are not drafted correctly, they may be deemed invalid by a court or completely set aside. For this reason, it is extremely important to engage a lawyer when drafting a prenuptial agreement. Spending a little money now is a much better option than engaging in litigation proceedings down the track for an invalid prenuptial agreement.
Can Prenuptial Agreements Be Set Aside?
Prenuptial agreements are generally legally binding. This means that if the agreement is originally signed by both parties, it will remain binding, unless the parties mutually agree that this is no longer the case.
However, there are circumstances where the Family Court of Australia can set aside prenuptial agreements. These include:
- Non-disclosure of assets/financial resources
- The agreement was entered into under duress or involves unconscionable conduct
- Children are now present who were not present when the original agreement was contemplated. The Court may set aside your prenuptial agreement on the ground of children if your prenuptial agreement does not make any provisions for your children or if there is an adverse change in the welfare of the children and the prenuptial agreement would cause hardship.
- The contents of the prenuptial agreement are not just and equitable
Contact Us
There are various reasons why couples decide to enter into a prenuptial agreement. A prenuptial agreement is generally a great way to protect your assets, provide you with peace of mind and financial empowerment. However, as every couple is different, it important that both you and your partner freely discuss, agree and feel comfortable about the idea of a prenuptial agreement.
We cannot stress enough the importance of engaging a lawyer in drafting a prenuptial agreement. It is important to ensure that the agreement complies with all legal requirements so that you do not face invalidity of the agreement down the track. Our experts in family law are able to assist with these matters. If you would like to discuss your family law matter with a legal professional please contact us on (02) 9963 9800 or via our contact form.
May 21, 2022 | Family Law
An injunction is a court order that requires a party to do something or refrain from doing something. Failing to comply with an injunction can result in criminal or civil penalties, and may even lead to serving an imprisonment sentence.
A parent is entitled to seek an injunction from the Family Court to prevent their child from being taken interstate or overseas by the other parent. It is often the case that evidence will need to be presented to prove to the court that the parent who is taking the child has no plans of returning.
Indicators that a parent is planning to relocate their child
The following could be used as evidence to demonstrate that a parent is planning to permanently take a child interstate or overseas:
- If one-way tickets have been purchased;
- If one parent is planning a holiday and travel arrangement details are being withheld from the other parent;
- If one parent has indicated that they have no plans of returning through their actions, such as selling their house, moving belongings into storage or giving up a lease;
- If one parent has friends and family at the destination or has previously inquired about jobs; or
- If one parent is travelling to a country that is not a signatory to the Hague Convention on the Abduction of Children so you will not be able to get them back from that country with the help of the Australian Government.
Requirements for taking a child overseas
In order to be able to take children overseas parents must obtain a valid passport for the children. If the child doesn’t already have a passport, both parents have to agree to obtain a passport for the child. If for whatever reason, either parent is not content for the child to possess a passport, the other parent may apply to the Family Court for an order that a passport be issued despite these wishes.
Court Injunctions
A solicitor can assist with putting forward your best case to the court if there is a real risk the other parent is taking the child interstate or overseas without plans to return. The court has the power to make orders that may include to:
- Prevent or restrain the parent from taking the child interstate or out of Australia;
- Require the parent to pay an amount of money to the court as security for the return of the child;
- Direct the parent to give contact details including where the child will be staying and so on; or
- Place the child’s name on the airport watch list to prevent the other parent from leaving the country with the child.
For an injunction to take effect, a copy of the order and any other documents you filed at the court must be given to the parent (or persons) involved.
If an injunction is breached by a parent there are a number of things the court can order of the party in breach. These include:
- Paying a fine;
- Paying a bond to the Court;
- They must provide the other parent with make-up time with the child;
- Ordering them to attend a parenting course;
- Changing any existing Court orders;
- or Enforcing a prison sentence.
Further Information
If you would like more information on how we can advise you on Family Law matter, do not hesitate to contact us on 9963 9800 or via our contact form here.
