Cairns Family Lawyers | Family Law

When that first bill comes in from your solicitor, how do you pay it? When you are in a relationship money is joint and bank accounts are joint. Where does that money come from to pay your first solicitor bill after separation? It is very tempting to take that $20,000 from the joint savings account to pay your solicitor fees.

The legislation provides a starting point for parties to consider where the money comes from to pay your solicitor bills. Section 117 provides that each party to a proceeding is to bear their own costs. Meaning that the money to pay your solicitor shouldn’t come from the property pool that needs to be divided. ie, your solicitor costs can’t come from the joint bank account.

But what happens when it is taken from the property pool (say that $20,000 sitting in a joint savings account), the case law says that money needs to be added back into the property pool.

• In Chorn & Hopkins (2004) FLC ¶93-204, the Full Court of the Family Court at [57] said “If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the benefit of them.”
• In Farnell & Farnell (1996) FLC ¶92-681 the husband used $20,000 he withdrew from a joint account at separation on legal fees. The wife gave no evidence as to her legal costs. The trial judge treated the $20,000 as a notional asset which he added back to the total property pool. The Full Court dismissed the husband’s appeal.

What if you choose to take a loan out to pay your solicitor bills. Can that be included in the balance sheet as a liability? The case law very clearly says no. It cannot be included as a liability in the property pool:

• In Chorn & Hopkins (2004) FLC ¶93-204, the Full Court of the Family Court said, “nor would any borrowing undertaken by a party post-separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties.”

The simple answer is legal fees cannot come from the property pool, or you risk having to account for them as an add back to your detriment.

What happens when your previous partner says, “I don’t believe that child is really mine”. Of course, there are a great deal of emotions during separation. Even where there was never infidelity, the question of parentage can be raised by the other party out of hurt feelings. Other reasons might be that a claim is made for the payment of child support.

The person questioning the paternity of a child have not considered how that question could affect the child in question. If the child is well into teenage years or a pre-teen, the relationship of parent/child is well established. The question we would pose to the person wanting the test is “have you considered the child and how they will react?” How will you explain your reasons for the testing to the child? and “what is it that you will do if they are not your child?”. When a parent has been a parent for a long time, do they want to sever that relationship? Are they proposing to remove that child from their life? What will happen in the event that the child is not yours? 

These issues must be considered before asking for or agreeing to the DNA test.

Be aware that proper DNA testing isn’t taking a hair from a hairbrush and sending it to a lab. It requires a blood test from a child which is usually traumatic in itself but how will it be explained to an older child/teenager as to why this test is required?

The court take a strong view in relation to parentage testing and say that there must be evidence to put parentage in issue – mere doubts are not sufficient.

The starting point is the presumption of parentage under the Family Law Act.

For married couples, under section 69P, if a child is born to a woman while she is married, the child is presumed to be a child of the woman and her husband.  

For de facto couples, under section 69Q, is that if the child was born to the woman AND at any time during the period beginning not earlier then 44 weeks and ending not less than 20 weeks before the birth, the woman cohabited with a man to whom she was not married then the child is presumed to be a child of the man.

Further, there is a presumption that if a person’s name is entered as a parent of a child in a register of births or parentage information then the person is presumed to be a parent of the child (s69R).

Further, there is a presumption as to artificial conception procedures under s60H(1).

There appears a vast amount of presumptions and the onus is on the person who says the child is not theirs, to rebut that presumption. However, case law has very much made it clear that parentage is no longer determined by legal presumptions. In G v H [1993] FamCA 39; (1993) FLC 92-380 Fogarty J noted at 79,942: “Paternity is now a medical and not a legal issue.”

A DNA test will confirm paternity, not 100% but with such a strong likelihood of paternity that it can be said legally that the child is the child of the father. A DNA test will exclude a person being the father of a child with 100% certainty. It is a very simple answer to the question of paternity to do the test.

But firstly, consider the child.

After separation, it is common that one party stays in the matrimonial home. Either they ultimately want to keep it from any property settlement or they want/need to remain there until the house is sold.

The good reasons to change the locks is “I am scared of them returning”. Change the locks! Your personal safety is paramount.

The bad reasons to change the locks is to stop the other person from entering the residence to collect personal possessions. It is always best to arrange for these possessions to be collected from an agreed safe location.  Unless of course, you have an objection to the items they are wanting to collect.  Arranging a time and location to make an exchange is the best solution.

The frustrating reasons to change the locks “I think it will annoy them”. Frustrating negotiations is never the answer. Another frustrating reason is when parties are living separated under the one roof. Don’t change the locks to “lock them out”. If living separately under one roof is not working, lets discuss how best to move forward and negotiate who is to remain in the residence.

Who’s name is on the property can also change the answer.

• If the property is held solely in your name, then go ahead and change those locks. It is your rights over the property.
• In general, matrimonial property is held in joint names.  Both are entitled to access the property. But when there are genuine concerns for safety. Your safety is the first concern! Change the locks.
• What if you are in rented housing? You must first obtain the consent of the landlord. And in doing so, you need to look into your options to remove your previous partner from the lease.

The court can make orders about who can occupy the family home and restraints on the other party from entering the property.

Our thoughts on changing the locks is that it is reasonable in many situations. To ensure you know what is best for you, obtain legal advice first.

We appreciate it is very overwhelming when you don't know where to begin to start sorting out the division of property following a separation. Here is our process.

The starting point is for us to gather information from you so that we can give you an advice as to what would be a fair outcome for you. We need to know things like, what all of your assets are and what you think they're worth; how much debt do you have; what did you have at the start of your relationship; What contributions did you each make during the relationship both financial and as homemaker and parent if applicable; What's your current financial situation and what does the future hold for you.

Once we have this information we are on our way to giving you an advice about what your proposal might be to resolve the division of property between you and your former partner.

We charge according to whatever time is spent on a file and it is at an hourly rate of $400 per hour plus GST. In order to try and save you at least an hour of fees we have a questionnaire that we send for you to fill in, in your own time, which asks all of the questions above.

When the questionnaire is returned to us, we have a look at it and make a time to go through it with you. It might be the case that we need some more information in which case we will tell you what that is and how we go about getting it. If there is enough information from the questionnaire for us to give you an advice about a good proposal and outcome for you, then we will talk about that at an appointment. We will also talk about how we can put your proposal to your former partner, will it be by way of you talking to your former partner, us writing them a letter, you both attending a mediation, or a combination of all of these things? There is no right or wrong method and we will talk to you about what is the best for you.

Once a proposal has been put to your former partner, we wait to their response. Their response will let us know the future pathway for your matter. For example, the response might indicate that you and your former partner are quite close to reaching an agreement. Or it might be the opposite. Either way, we will let you know what the next steps are and give you a further estimate of fees.

At all times what we are working towards is having you and your former partner reach agreement about the division of your property and having that agreement documented in a legally binding manner, usually, by way of an application for consent orders although a financial agreement is also an option. We will talk to you more about this when the time comes.

We will tell you what to expect, what we require of you, and what you can do to assist us to minimise your fees. Hopefully this will make your pathway through the process a lot easier!

Every child is different with their own unique needs. Some children will do well in a shared care arrangement. Other children do not cope with it at all. As a very general rule of thumb, the older the child, the more likely they are to cope with a shared care/equal time arrangement. Again very generally, the thinking is that children under school age
would not cope well with shared care/equal time as it is difficult for them to transition between households.

As a child gets older, it is easier for them to adapt to a different household moving back and forwards between households, juggling school commitments, remembering what clothes and equipment to bring to each house and so on. If parents want shared care arrangements to work they must be able to co-parent and communicate effectively and the most important thing is that there must not be any conflict between the parents to that the children are exposed. Parents also need to have a consistent and united approach in relation to the core values of parenting; and a consistent approach in relation to things like homework, chores, after-school activities, time on devices, etc.

Also, be aware that a shared care arrangement does not necessarily have to be weak. It could take the following pattern:

Each week – Monday Tuesday with parent 1, Wed Thursday with Parent 2; then in week one of a fortnight - Friday to Monday with Parent 1; and in week 2 of the fortnight, Friday to Monday with Parent 2. ( In other words – 2/2/5/5 nights over a fortnight).

Or it could be 3 to 4 nights with each parent swapping to 3 to 4 nights with the next parent and so on.

What factors will determine what’s appropriate, is the age of the child, the living circumstances of the parents (for example how far apart they live from each other), the after-school activities a child has and most importantly the ability of the child to spend up to a week away from each parent or whether the child copes better with shorter periods of time.

It is widely accepted in the court that children under a certain age meet their milestones and are happier healthier children when they live with the person with whom they have their primary attachment. In other words, the person with whom the child is most bonded, and to whom the child looks to meet the child’s needs. Whilst a child does often have a primary attachment with their mother, it is not necessarily the case that a young child’s primary attachment is their mother - it could be their father or another person.

As it is almost always the case that the person with whom the child has their primary attachment, is also the person they live with the most, I will call that person ‘the primary carer’.

What the experts tell us is that young children do not cope well when they are separated from their primary carer for extended periods of time. Young children need to have a primary base, with the primary carer and spend frequent but relatively short periods of time with the other parent.

All children are different but as a general rule, when children are under the age of three, they may not cope well with being away from their primary carer overnight. They are better able to cope with regular consistent periods of daytime with the other parent.

Every child will differ also as to when they would cope with a period of overnight away from the primary carer. With some children, it could be after the age of three but with other children, it might not be until the age of five or even later. It is very important to work with the pace of the child, if children are not ready to spend overnight time then it can be traumatic for them to do so. Parents can also help their children by acknowledging that time with the children is about quality, not quantity; and in particular to understand that you get more out of spending daily time with your child while he or she is awake and active than while they are asleep.

As a very general rule, this is commonly what the courts might say about overnight time for children of different ages:

Under the age of two, no overnight time;

• Between 2 and 3 years of age, a child might cope overnight if he or she has a solid relationship with the other parent (the one with whom they will be staying overnight) and the surroundings are familiar.
• Between the ages of three and five or six, when a child starts school – 1 to 2 overnights per week
• In the early primary years, and if there has been a pattern of overnight time already in place, a child of between the ages of six and 12 would cope better with two nights to 3 nights with the other parent.
• A week about or shared care arrangement in general terms works better for children who are older, late primary and into high school. I cannot stress enough that each child is different and this is a very general guide only.

What can parents do to help their child settle into overnight time with the other parent?

First, and most importantly, is to remove your child from any conflict between you. Be aware, that children pick up on more than just the language used. They will notice body language, and the tone used, even if they don’t quite understand the language used.

Again what the experts tell us is it is not so much the separation that affects children but the conflict associated with it. If parents can do their utmost to make any interaction between them that involves the child, as pleasant an experience as possible, they will be doing their child a great service.

It will also be very helpful to your child if you can have a discussion with the other parent about the child’s routine and try to have consistent ideas about what food your child will eat, what time their bedtime should be, what their routine is for bedtime, and so on. A child who has a favourite toy should be allowed to have that toy when they stay overnight.

Something I’m commonly asked is whether you should allow your child to call the other parent if they’re having an overnight with you. The parent having overnight is obviously concerned that if the child is upset and wants to speak to the other parent, by doing so, the child will then want to return home to that parent.

That might very well happen. But wouldn’t it be better, to demonstrate to your child that he or she can trust you that if they are really upset and just want their mum/dad, you will allow that to happen? Knowing that their needs will be met and that they will not be left feeling distressed or anxious, will give a child much greater trust in you. It’s just a fact of life that some children suffer anxiety being separated from their primary carer and it is best to help the child through this as best you can rather than resist it.

It will also build greater trust in the other parent for you to let them know that the child is distressed and give them an opportunity to settle the child.

So my advice is, to let the child have a phone call at bedtime to the other parent, let them have a photo of the other parent if that’s what they want, let them have their familiar toys and clothes and try to follow the routine they have at home. All of this will go a long way towards an enjoyable overnight experience.