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Family Law

When Can a Child Decide Which Parent to Live With in Australia?

By | Family Law

When a spousal relationship breaks down and there are children involved, there are few more fraught issues than those involving the children’s future living arrangements. This is particularly difficult when a child has a firm view about which parent he or she wants to live with, either all or most of the time.

Contrary to some popular misconceptions, a child’s specific age is not one of the determinants in deciding where the child will live when a court needs to hand down a decision in relation to parenting arrangements. Instead, a number of the key factors the court will assess in deciding the living arrangements are:

  • the child’s maturity;
  • his/her level of understanding of the overall situation;
  • whether his/her expressed wishes about where to live are well informed;
  • whether or not the child has been unduly influenced (usually by one or other of the parents, but also potentially by relatives, counsellors, etc.).

How does the process work?

The two main considerations for a family court are that a child/children maintain a meaningful relationship with both of the parents, and that children are protected from physical or psychological harm.

In terms of taking a child’s wishes into account, the court will generally rely on a ‘family report’ from a court consultant or trained counsellor, therapist or psychologist who has conducted an interview with the child.

The report writer will interview and observe the parents, the children and any other people living in the same household as the children, such as step-parents and step-siblings if the parent has a new partner. They will usually ascertain the child’s wishes and ask questions designed to aid assessment of the child’s maturity and level of understanding. The family report will then be prepared for the court with recommendations about the future parenting arrangements the judge should consider.

These are far from easy issues to decide. The difference in maturity between two siblings, for instance, may mean the court views the desire of the older sibling to stay with one parent as persuasive while the same view held by the younger sibling may not be given as much weight by the court. While the court will always be reluctant to separate siblings who demonstrate a strong attachment to one another, it is not likely to refuse the wishes of a sibling adjudged to be mature and insightful about the overall situation.

The role of an independent children’s lawyer

In some situations the court will appoint an Independent Children’s Lawyer to make an independent assessment of the child’s wishes and circumstances. This person will gather information from sources including teachers, doctors, psychologists, counsellors, police and child welfare authorities before making a decision whether to interview the child or not.

This appointment will often be made in cases where:

  • there are allegations of physical, sexual or psychological child abuse;
  • there is ongoing intractable conflict between the parents;
  • the child is alienated from one or both parents;
  • there are cultural or religious differences affecting the child;
  • there is a proposal to separate siblings into different households or take a child overseas.

Out-of-court options

Avoiding the cost and trauma of court proceedings should be the first aim in any family breakdown situation. An experienced legal professional can provide helpful advice on family dispute resolution options so that going to court becomes only a last option. These options can include taking account of the wishes of children through inclusive mediation, counselling and other means.

Family break-ups are stressful and all-consuming.  Assistance from legal professionals with expertise in this area will help clarify your options and the best way forward, particularly in taking account of the wishes of children so that a resolution which protects their welfare and helps them maintain a relationship with both parents, where possible, is reached.

Expert Advice In Family Law

By | Family Law

Adducing further expert evidence in family law proceedings

In property proceedings before the Federal Magistrates Court, an Order was made by the Court to appoint a joint expert to value a block of land.  Following the release of the joint valuation, the husband disputed the value based on the significant difference in value between the jointly appointed valuation and an earlier valuation obtained by him.  The difference in value was $210,000.00.

Due to this dispute, a conference was held with the legal representatives, the joint valuer and the husband’s valuer.  This conference did not resolve any issues.  Consequently, the husband filed an Application in a Case and supporting Affidavit.  This Application sought the Court’s leave to adduce evidence in the Court other than the evidence of the jointly appointed Court expert (in accordance with Rule 15.12 of the Federal Magistrate CourtRules 2001).

When the Court considered this Application, the Court also considered Part 15.5 of the Family Court Rules 2004 since the Federal Magistrate Court Rules did not set out any criteria for the Court to follow in exercising their discretion to grant leave to a party to adduce evidence other than the evidence of a joint expert.

The Court also referred to the matter of Knight and Knight [2007] FamCA 263.  In this matter, Bryant CJ, granted the wife permission to adduce evidence from an expert witness who was not jointly appointed after having regard to the following:

  1. whether it is necessary to resolve or determine an issue in the case;
  2. whether unnecessary costs will arise from the appointment of more than one expert, and, if so, whether the interests of justice outweigh the costs involved;
  3. considering whether the interest of justice are otherwise met, and in particular whether there would be any delay occasioned by allowing the wife to have an expert, and, if so, whether that is outweighed otherwise by the interests of justice.

In determining this issue, the Court considered the significant difference between the valuations and the significant effect the valuations have on the property pool.  The Court also noted the real property in question was not a usual suburban house, but a rural/residential block which value may be affected by other factors (e.g. the government’s selling of the land resumed for the Traveston Dam project – this issue was raised by both valuers).

The Court decided that in the interest of determining a just and equitable property division, it would allow the two valuers to give evidence at the final hearing.  At the final hearing, the Court will be required to determine which value will be place on the land (either the joint valuation or the husband’s valuation).  The Court cannot select another figure or average out the values at the final hearing.

© Delaney & Delaney Solicitors. This publication is for information only and is not legal advice. You should obtain advice specific to your circumstances and not rely on this publication as legal advice. Should you have any queries in relation to this publication, please contact our office on (07) 3236 2604.

Case Guardians

By | Family Law

Appointment of case guardian in family law proceedings

When husbands and wives or defacto partners separate, most parties will seek independent legal advice, negotiate a settlement and execute a document to formalise their agreement (either Consent Orders or Binding Financial Agreement). However, if one of the separating parties lacks the capacity to make their own decisions, then further steps are required to be taken in order for the Court to be satisfied that the settlement is just and equitable.

A client instructed us to represent her in finalising her property settlement. However, prior to providing these instructions, she was diagnosed with a degenerative illness which would eventually affect her capacity and ability to provide instructions. Since the client was aware that her health was deteriorating, from the commencement of our involvement in this matter, she provided us with her authority to discuss all matters with her Attorneys she had appointed under her Enduring Power of Attorney.

Prior to the parties reaching final agreement and signing the appropriate documents to formalise the agreement (Consent Orders and Application for Consent Orders), the client’s doctor issued a report stating that the client no longer had capacity to make day-to-day decisions. Since the client now did not have capacity, she could not consent to her own property settlement and she could not execute documents to formalise the agreement reached between the parties.

Notwithstanding the fact that the client had appointed Attorneys under an Enduring Power of Attorney (appointed when she had capacity), in order to obtain sealed property Orders from the Family Court, the Court requested that a Case Guardian be appointed to act on behalf of our client. One of the client’s Attorneys agreed to take on this role.

In order to have the Court appoint a Case Guardian for the client, we were required to look at Part 6.3 of the Family Law Rules 2004 (the “Rules”).

In accordance with Rule 6.09 of the Rules, a person may be a Case Guardian if the person is:

  1. an adult;
  2. has no interest in the case that would be adverse to the client;
  3. can fairly and competently conduct the case; and
  4. has consented to act as a case guardian.

We were also required to also look at Rule 6.10 of the Rules which sets out further requirements to be followed by the proposed Case Guardian, including providing evidence to the Court that the person being appointed as Case Guardian has been appointed manager of the affairs of the client and filing a Notice of Address for Service (to become a party to the matter).

Since these parties had reached consent in relation to property settlement, the Order seeking the appointment of a Case Guardian for the client was inserted in the Consent Orders to be filed with the Application for Consent Orders.  The proposed Case Guardian also executed an Affidavit outlining their suitability to be appointed as Case Guardian as set out in Rule 6.09 and Rule 6.10 of the Rules.

In the event a person was to lose capacity during contested proceedings before the Court, then an Application in a Case, supporting Affidavit and Notice of Address for Service would need to be filed in the Court by the proposed Case Guardian.

© Delaney & Delaney Solicitors. This publication is for information only and is not legal advice. You should obtain advice specific to your circumstances and not rely on this publication as legal advice. Should you have any queries in relation to this publication, please contact our office on (07) 3236 2604.

Ghazel and Gay Marriage

By | Family Law

Family Court Rules Monogamous Marriage from a Country that Allows Polygamy Still Valid in Australia

In Ghazel v Ghazel and Anor [2016] FamCAFC 31, the Full Court of the Family Court of Australia ruled that a monogamous marriage from a country that allows polygamy was still valid in Australia.

The Full Court reviewed the Howard Government’s 2004 amendments to the Marriage Act 1961 amended by the Howard Government in 2004. Section 5(1) was changed to define marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”.

Section 88EA was added to the Act, saying “(a) union solemnised in a foreign country between a man and another man or a woman and another woman must not be recognised as a marriage in Australia.”

The Full Court also examined parliamentary material from 2004 and concluded that sections 5(1) and 88EA were amended to prohibit only gay marriage.

Like many cases, the ruling in Ghazel & Ghazel considers and affirms issues only tangentially related to the main dispute. It reminds us that nothing short of legislative reform from our elected representatives will expand the scope of marriage.

 

© Delaney & Delaney Solicitors. This publication is for information only and is not legal advice. You should obtain advice specific to your circumstances and not rely on this publication as legal advice. Should you have any queries in relation to this publication, please contact our office on (07) 3236 2604.

Olympic Plans

By | Family Law, General News

Recognising an Unsustainable Plan before it is Put into Practice Gives Confidence the Future is Manageable

In the lead up to a global sporting event like the Olympics, fans will jump on the internet to find out exactly when their favourite event will be broadcast.  They eagerly set their alarms and wake in the dark of night to watch their heroes compete against the best in the world.

It’s fun, but after two or three nights it starts to take its toll.  Waking up at 6am, having gone to bed only a couple of hours earlier, is a lot less fun.  If you’re lucky, you’ll get through the day feeling a bit tired.  If you’re someone who needs their eight hours (like me) you’ll shuffle through the world like a zombie, desperate for the sweet release of sleep.

Towards the end of the Olympics we have to decide whether to miss out on a nail-biting final to catch up on rest or spend the next few days in a sleep-induced haze.  It’s a stark reminder of the difference between making plans and living them.

Section 60CC(3) of the Family Law Act 1975 describes issues parties must bear in mind when planning children’s orders.  In particular, section 60CC(3)(e) requires consideration of “the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis”.

When proposing orders it is easy to say “it’s in the children’s best interest to spend equal time with both parents on a week about basis.”  Less easy is to ask “is the children spending time with both parents on a week about basis sustainable in the long term?”

It is not an easy question because the answer could be unwanted.  A parent may have work commitments, or live in a distant location, or a child might need to frequently attend extra-curricular activities (like swimming training).  There are any number of reasons why living a week about schedule would be impossible.

Anticipating this issue is a good thing.  It is far better, for both parents and children, to recognise an unsustainable plan before it is put into practice and starts causing problems.  Not only does this drastically reduce the likelihood of having to renegotiate arrangements only months after they’re (supposedly) settled, it gives both parents comfort and confidence that the future is manageable.

Staying up all hours is fun, but there’s a reason the Olympics only take two weeks out of every four years.

 

© Delaney & Delaney Solicitors. This publication is for information only and is not legal advice. You should obtain advice specific to your circumstances and not rely on this publication as legal advice. Should you have any queries in relation to this publication, please contact our office on (07) 3236 2604.

Changes to the Succession Act 1981 – bringing defacto relationships into line with marriages

By | Family Law

Kristy Schaeffer and Bill Delaney discuss the implications of recent amendments to the Succession Act 1981

From 5 June 2017 a number of changes to the Succession Act 1981 came into effect (pursuant to the Court & Civil Legislation Amendment Act2017 No. 17).  These changes have the effect of bringing de facto relationships into alignment with traditional marriage relationships in two particular ways:

  • Firstly, a new section 15B provides that the end of a defacto relationship now has the same effect on a testator’s Will as a divorce – that is, it revokes any benefits left to the testator’s former defacto partner and revokes the former defacto partner’s appointment as an executor.  These provisions will take effect unless a contrary intention appears in the Will (section 15B(3)).  We highlight for our clients that there still remains an important practical difference between a divorce and the end of a de facto relationship, namely, that a divorce involves the issue of a Divorce Order from the Federal Circuit Court of Australia.  There exists no equivalent formal piece of evidence to prove the end of a defacto relationship.  For clients who are in a situation which involves the end of a defacto relationship, we recommend you consider reviewing and possibly updating your Will, or providing us with instructions to formalise or document the end of the defacto relationship to ensure the new s15B applies in your situation.
  • Secondly, changes to section 40A(2) and (3) now clarify that a stepchild includes the child of one party to a defacto relationship as a stepchild of the other party.  Accordingly, such a stepchild is an eligible applicant to bring a Family Provision Application against the estate of the deceased ‘step-parent’ provided the defacto relationship subsisted at the death of either of the parties to the defacto relationship (this is the same position as a stepchild where there is a marriage relationship between the child’s parent and the other party which subsists at the date of death of either party).

We have been assisting clients with estate planning, including the making of Wills and enduring documents, estate administration and estate disputes for over 100 years.  Particularly if you have an estate with complicated assets or family structures we would recommend that you come and see us for advice on the many issues you should consider when making your Will and establishing a thoughtful, considered and fair estate plan.  We are interested to ensure that our clients make good decisions to protect their estate from costly estate litigation and protect your family members from the risk of conflict and disputes following your death.

By Kristy Schaeffer and Bill Delaney

© Delaney & Delaney Solicitors. This publication is for information only and is not legal advice. You should obtain advice specific to your circumstances and not rely on this publication as legal advice. Should you have any queries in relation to this publication, please contact our office on (07) 3236 2604.