Cairns Family Lawyers | Family Law

Are you surviving this separation? 

Chances are that if you are reading this, you have reached an agreement with your former partner, or you are hopeful of doing so. In that case you might be feeling positive about this process, which is great. If not, this may help you, or someone you care about who is going through separation. 

The first thing to know, is, it is OK to be sad. According to the experts, a separation is up there at the top of the list of life’s most traumatic experiences, underneath the death of a loved one. For many, separation is like a death. It is the end of a life as you knew it. So don’t pretend it is all OK. 

You’re not alone. Call on the support of family and friends. Better yet, get some professional assistance with a counsellor or psychologist. I recommend this to clients even if they feel they are doing fine. It doesn’t hurt to talk it all through and make sense of your feelings.  

If you have children, you need to be doing OK. Just like in the aircraft where you adjust your mask before fitting theirs, your well being is so important.   

Children WILL be affected by separation.  Every child will experience some emotions - they can be surprised, angry, sad, confused, insecure, frightened, and also grieving for the loss of the family. They can feel responsible. Chances are good, they still love the other parent and miss them greatly. They might start behaving differently at school and home. It is great if you can recognise the signs your child is struggling with the separation and get them some help, as early as you can.  

See our blog “How to help my child through separation” written with a child psychologist making sure I have it right.  

It might bring some comfort, to know there are stages of separation. If you are lucky at the end of a relationship you might just feel relief. But often what you feel is grief. It might help to recognise the stages of grief, which applied to a separation might look like this: 

• shock and denial – how can this be happening? Especially when you are not the instigator of the breakup or even worse, were not expecting it
• anger and blame – your former partner, another person
• sadness and depression.

The good news is that one of the last stages of grief is healing; the acceptance that the relationship is over and with that, the ability to move on. 

In your post separation relationship with the other person, particularly if you are trying to resolve disputes over property and/or children, it’s good to realise that you might be at different stages  - you have moved on but the other partner is still angry or sad, or vice versa. 

Start taking action and getting information. Separation can be completely overwhelming. Where do you start to unravel plans for the future and finances? What should happen with arrangements for children and who gets what financially? I guarantee you, the sooner you get some advice and assistance to work out a plan of action, the better you will feel. Clients tell me time and again how much better they feel even after the first appointment because they can see some light at the end. 

Put a routine in place for children. All the parents out there know that children thrive on stability and routine. The best post separation parenting arrangements are those that are ideally negotiated between yourselves, that are consistent, and provide for children to have time with both parents (if that is what is best for them). This does not necessarily mean an equal time arrangement particularly for children under school age. 

It will get better! At some point, these disputes will get sorted one way or the other. How quickly and affordably is up to you and the other person. If you are both committed to sorting this all out so you can both move on, it can happen quite quickly and without the expense of court proceedings.

Welcome to the crazy world of life after separation.

You need to sort out your property, but how?

This Blog is the first in a series of blogs designed to assist you to navigate the murky, perhaps shark infested waters of property division and end up safe at shore, with your deal done.

I want you to end up with an outcome that is fair and one that ideally, is negotiated with your former partner, and agreed between you. Separated people who cannot agree how to divide their property and need the court to decide, will end up spending a great deal of money in legal fees. You have better things to do with your hard-earned money, then spend it on legal fees. Particularly if you have children.

We start with some legal stuff that will help you to understand the wording more easily and tell you what the law says has to be done or might be done if you end up before a judge. You need to know this. You need to pick your battles sometimes and not waste time and money arguing about something you are just not going to get.

We will tell you about the 5-step process that we use to advise clients about what is a fair outcome.

Later blogs step you through the process and what you need to do, to get to an agreed outcome (and then we tell you what to do with that outcome, once you have it.) I've broken down the process into 9 easy to understand steps.

Here’s a very ‘lawyery’ disclaimer- this is information only, not advice and you can’t rely upon it as advice. Use this information as a guide, to point you in the right direction and to help you understand the legal language and principles. I cannot stress enough, to obtain legal advice that is specific to you, as you go along. Here are some notes as well:

When I talk about “relationship” and “partner” – it means both defacto (never married) and married couples; and includes same sex relationships.

These blogs will talk about “what the court will do” as that is our benchmark, that is how we advise you. Please note, I will encourage you to think of going to court as a last resort, so just because we talk about “court” doesn’t mean you should make an application to the court. UNLESS!! It is an application for consent orders.

An application for consent orders is a form that is filed with the court once people have agreed how to divide their property and/ or what arrangements they want in place for their children. As the name of the form suggests, you are asking the court to make orders by consent, that you have both agreed to. Even though you file the application in the court you don't actually go to court. Once the application is filed a registrar of the court will give you a date when he or she will consider your application and on that date, you will be informed whether the application has been granted or not. If the application is not granted the court will “requisition” it. The court won't dismiss your application straight away, you will be given information by the court as to why the registrar was concerned about your application and you will be given an opportunity to rectify the issue may have arisen.

There's further information about this in the blog entitled “filing your application for consent orders.

Are you ready!

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!