What you both need to decide here is whether you will even include different arrangements on special days or whether special days will be spent ‘as they fall’, in other words your children will spend time with each parent in accordance with the parenting arrangement that you have agreed.

Some children actually don't like having to divide their day between their parents. Some parents take the view that if the child’s birthday falls on a day the child is with the other parent, they will get to spend time with the child when they next see him or her. That way the child has 2 birthday celebrations and does not have to divide their day.

The same reasoning applies in relation to Christmas Day. Depending on logistics, it might be a better experience for a child to spend the entire day with one parent and then perhaps Boxing Day with the other parent. If parents live reasonably close to each other and children want to see each parent on Christmas Day, another variation is to divide Christmas Day in half.

A further variation is the children spend a block of time with one parent in one year and then the with the other parent the following year. The block could be from Christmas Eve until the 26 or 27th of December.

Another variation is that if school holidays are being shared, children do not see the other parent at all. If Christmas school holidays are equally shared between parents the parent who has the children for the first half of the Christmas school holidays will always have Christmas Day. Have a look at the blog on school holidays and see that a common order is for one parent to have the first half of the Christmas school holidays in even numbered years and the other parent has the first half in odd numbered years.

The important thing to remember about special days is that the days are about the children not the parent.

With this in mind some parents do not seek orders to spend time with children on their own birthdays.

The following are examples of common orders that are made in relation to special days. The times are just by way of example. If there are events of cultural and/ or religious significance, the same wording can be used.

Mother’s Day/Father’s Day – (a whole weekend, from the night before, or just the day)

The child shall spend time with the Mother on the Mother’s Day weekend from 5.00pm on the evening before Mother’s Day until school drop off Monday morning, if not already in the mother’s care.

The child shall spend time with the Father on the Father’s Day weekend from 5.00pm on the evening before Father’s Day until school drop off Monday morning, if not already in the father’s care.

OR ( with the same applying for Father’s day)

The child shall spend time with the Mother on the Mother’s Day weekend from 5.00pm on the evening before Mother’s Day until 5pm on Mother’s day, if not already in the mother’s care.

OR ( with the same applying for Mother’s day)

The child shall spend time with the Father on Father’s Day from 9.00am to 5.00pm if not already in the father’s care.

Christmas and Easter weekend

Only if the parents are in the same location for the Christmas and Easter period:-

a. In each even numbered year the child will spend time with the mother:
i) from 4pm Christmas Eve until noon 27 December, and
ii) from 4pm on Good Friday until noon Easter Monday.

b. In each odd numbered year the child will spend with the father:
iii) from 4pm Christmas Eve until noon 27 December; and
iv) from 4pm on Good Friday until noon Easter Monday

NOTE – “Only if the parents are in the same location” - This order works well if parents are sharing the Christmas school holidays. It enables each parent to go away with the children during their time, and only if they're not going away and parents happen to be in the same location would they agree to share the Christmas or Easter period. If these are the orders you are contemplating make sure that you think about which parent gets the time in even/odd numbered years and make sure that works with who gets the first half of the Christmas school holidays. The person who's getting the first half of the Christmas holidays is not the parent who would get the children from Christmas Eve using the example above.

Child’s Birthday

That the child will spend time with the parent who does not otherwise have the child in their care on the child’s birthday as agreed to between the parents and in default of an agreement as follows:
a) On non-school days from 12pm until 5pm; and
b) on school days from afterschool until 5pm.

Parent’s Birthday

The child shall spend time with the Mother on the Mother’s birthday from 5.00pm on the evening before her birthday until 9am the day after her birthday, if not already in the mother’s care/ or a block of time on the birthday, not overnights.

The child shall spend time with the Father on the Father’s birthday from 5.00pm on the evening before his birthday until 9am the day after his birthday, if not already in the father’s care.

Such arrangements can be of any configuration – for example, one night a fortnight through to 6 nights a fortnight or just time during school holidays.

The orders need to specify, with whom the children will live and then, how much time the children will spend with the other parent and what that time looks like.

Here are some examples.

The children live with the (Mother/Father).

Unless agreed otherwise in writing the children spend time with the (Mother/Father) as follows:

a) during the school term each alternate weekend from ( say) Friday after school until (say) the commencement of school the following Monday morning. If Monday is a public holiday or a non-school day the children's time is extended until the commencement of school the next day; and

b) During school holidays ( set out how the time will change during school holidays, if it is going to. See our blog on school holiday time.)

There are many different variations. Some arrangements might be Friday after school until Sunday afternoon which works well for children who need to come home to their primary base to get ready for school the next morning. Some arrangements extend the alternate weekend to Wednesday or Thursday which would mean the children spend 4-5 nights a fortnight with that parent.

Such an order would look like this, and the days are just examples.

The children live with the (Mother/Father).

Unless agreed otherwise in writing, the children spend time with the (Mother/Father) as follows:

a) during the school term each alternate Thursday from after school until the commencement of school the following Monday morning. If Monday is a public holiday or a non-school day the children's time is extended until the commencement of school the next day;

The advantage of a 5/9 – 4/10 arrangement is that the ‘alternate weekend’ parent still gets to have some involvement with the children's school life.

Regardless of how many nights children live with each parent the best arrangements for them will be ones that are consistent and certain; but that have some degree of flexibility to allow parents to make other arrangements if the need arises.

This flexibility can be achieved in a court order by including the order “Unless agreed otherwise in writing “ as we did above, or “the children will spend time with each parent as agreed between them in writing, but failing agreement…”.

“In writing” covers texts emails and messages via a parenting app.

However to note, parents are always able to vary court orders by consent Even if the orders do not say anything about agreeing otherwise. It is advisable to always make sure the variation is in writing ( a text is fine) so that there can be no misunderstandings.

What is this order all about?

This order establishes how parents will make important decisions for children. The sort of decisions we are talking about are described as ‘major’ and 'long-term’ issues relating to a child – to be distinguished from day-to-day issues. For example, what the child eats for breakfast, and whether the child goes on a play date.

This is the definition in the Family Law Act:

"Major long-term issues", in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

(a)  the child's education (both current and future); and

(b)  the child's religious and cultural upbringing; and

(c)  the child's health; and

(d)  the child's name; and

(e)  changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

Some examples of what would be considered a “Major long-term issue” is:

• what school does a child go to
• an important medical decision, for example whether a child has an operation;
• what religion a child will be;
• how will the child learn about and be exposed to their culture;
• changing any part of the child's name;
• moving away from a place with a child.

Parents are generally expected to share the responsibility of making important decisions, and parents are expected to consult with each other and make a genuine effort to reach a joint decision on these matters.

An order that provides for parents to share decision making would be drafted like this:

Shared decision making

1. The father and mother have joint parental responsibility for making decisions about major long term issues for the children ( full names and dates of birth for each child) (“the child/ren”).
2. For the purposes of these Orders, a major long-term issue shall include, but is not limited to, issues about: -

(a)           The children’s education (both current and future);

(b)           The children’s religious and cultural upbringing;

(c)           The children’s health;

(d)           The children’s names/name; and

(e)           Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

3. The father and the mother have responsibility for the day-to-day care welfare and development of the children when the children are in their respective care.

Sole Decision making

However, there will be circumstances where it would not be in a child's best interest for their parents to share decision making. Such circumstances include for example, where there has been family violence and it would expose a parent to a risk of harm if they had to consult with the other parent and/ or because of the family violence the parent is simply unable to properly consult with the other parent.

Other situations are where parents cannot communicate with each other without conflict; where a parent is difficult to contact; and also includes scenarios where joint decision making would not be possible because of issues with the other parents such as mental health, drugs and alcohol.

In these circumstances the more appropriate order would be for one parent to have sole decision making. Important decisions for children need to be made without the risk of parents reaching an impasse because they cannot agree and so the important decision is unable to be made for the child.

An order for sole decision making would look like this.

The (insert which parent) shall have sole parental responsibility for making major long-term decisions for the child/ren, (insert full names and dates of birth for each child) (“the children”).

You can go on to add order 2 in the above example which sets out what those decisions are.

It is important to carefully consider whether sole decision making is in the best interests of children. As a general rule of thumb where children live in a shared care arrangement or they spend significant time with each parent, the usual best outcome would be for parents to share decisions. Similarly, if a child lives primarily with one parent and spends little time with the other parent, sole decision making to the parent with whom the child lives may be the most appropriate order.

A parent who has sole decision making will decide what school the child goes to, what religion the child will be, that parent will make all health decisions, that parent has the ability to change the child's name without the consent of the other parent, that parent can obtain a passport without the consent of the other parent, and that parent can relocate away from the other parent with the child without the other parent’s consent. However, a parent would not be able to relocate if by doing so, any orders for time spending with the other parent would not be able to take place.

A compromise position

A good compromise in circumstances where it would be best for a child if one parent did make the decision solely, but where parents have a level of communication, is an order where the parent making the decision will let the other parent know what decision they propose to make, consider the other parent’s point of view, make the decision and let the other parent know what that decision is.

That sort of order would look like this:

In exercising sole parental responsibility the ( insert parent  - “P”) must:

1. Advise the (other parent - OP) in writing (?) days prior to making any long-term decision required to be made in relation to the children, including details of why the decision is required and the options being considered by the (parent);
2. Allow the OP ? days to respond to the P’s proposal:
3. Prior to making the final decision, the P must consider the OP’s response. However, the decision shall be solely the Ps to make; and
4. The P must inform the OP in writing of his/her decision within ? days of making such decision.

TO NOTE - Decision making does not need to rest with a parent. The orders could provide that a grandparent, for example, could make decisions.

This is a series of blogs designed to assist you to understand and draft the different sorts of parenting orders that you might be asking the court to make. The examples that we will give you are the sort of orders that could be sought in an application for consent orders, or in a disputed matter.

A good set of parenting orders should cover the following issues:

• Decision making
• If a child is going to live in an equally shared care arrangement, what does that look like?
• If a child is going to live primarily with one parent, which parent will that be and on what days and what time will the child spend with the other parent?
• Communication between the child and the parents
• Time on special days
• Arrangements for school holidays
• What information each parent will receive about the child and how
• Whether any restraints are required.

We will cover each issue in detail and give you different scenarios so that you can choose the one that best suits your child.

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!

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.

Why would you get a Financial agreement?                           

You’ve had a bad break up with your ex but life does go on - thankfully!  - and you’ve met the person of your dreams. You are worried that even though this feels like forever, if this relationship does end, what is going to happen to your hard earned property? (more…)

Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs

Selling the family home following a separation is often a reality. Like any sale, you want to maximise your sale price.

It is also important to work with an agent who understands that their clients are separated - and it may not be easy to get joint decisions about the sale! The agent will need to be prepared to work with both owners, i.e. husband and wife, separately, and makes sure that each person is involved in making a decision. Often the agent needs to navigate the tensions of separated couples and try and get them to reach an agreement on the sale.

I always suggest to clients that if they can’t agree on an aspect of the sale- that they should agree beforehand to let the agent make the final decision. Bear in mind - the agent also wants the quickest sale at the best possible price!

I contacted Zoe Wicks, an experienced agent who has recently moved back into the Edge Hill area – for her perspective and expert advice on how to sell your property when you have separated:

“When I'm working with a couple who are separating, I'm always very sensitive to the situation and the emotions that are felt by both parties. I am very diligent with my communication; ensuring I keep both parties well informed and that all communication is equal and non-biased. It's important that both parties feel supported and understood, and that they feel safe in my hands – receiving good, solid professional advice.

Having a strong leadership approach is important when selling a property for a separated couple, as delays in agreement can negatively affect the sale outcome.

Often these properties may have been neglected because both parties have moved out, or there have been disputes with money, a shortage of money, or sometimes purely from the owners dealing with the overwhelm of emotions and life changes. Amongst everything else they are having to deal with – the home maintenance falls on the wayside. I take a lot of time and care in helping to best prepare the home for sale behind the scenes, before we go to market. This process can often be quite long and challenging (depending on the situation), but is absolutely essential in achieving the highest possible price for the owners.

Right now, the property market wheels are still turning; they may be turning slower, but they are still turning.  Having a roof over our heads is essential, we still need places to live, to call home - for each new chapter and season of our lives.

I'm definitely feeling that with the advent of what's happening in the world- people are reassessing their values, favouring less populated areas, healthier environments, nature & self-sustainability, lifestyle, and warmer climates- which are all positives for us living in Cairns.

I feel there is a renewed interest in Cairns from southern & international buyers for these reasons.  The simple life has come back into fashion; be that by forced external factors combined with new internal drivers.  First home buyers have a strong presence in the market as there are good value properties to be snapped up, coupled with low interest rates and Government loan incentives.  Second or third home buyers are in the market as well- they are taking their time to buy, but jumping when they find a property they love.  Investors are also looking to buy property in the Cairns area, as the return on investments are still very competitive and better then what the banks can offer- even with the downward pressure on rental prices.  The low entry level prices allow investors to spread their risk.”

It is great to hear that in Zoe’s opinion- the property market is still viable, and it is possible to get a good price for your property! For more tips, check out Zoe Wicks Real Estate’s 101 tips to maximise your sales price here.

 

With thanks to: Zoe Wicks, LREA | Zoe Wicks Real Estate |   Ph: 0477 114 778   |   Email: zoewicks@atrealty.com.au

Nardine Collier is a Nationally Accredited Mediator and has been mediating Family Law disputes for over 25 years. She is a Family Dispute Resolution Practitioner, a Family Law Arbitrator, a panel Mediator for various Australia wide organisations and for courts and tribunals. Nardine regularly mediates at Legal Aid conferences in Family Law, in Cairns and Alice Springs. She is also the Cairns Representative of the Queensland Chapter of the Resolution Institute of Australia.

Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs

I read an interesting article last week, entitled: 'When Coronavirus lockdowns ended in cities across China last month, there was one thing a lot of people couldn’t wait to do: get divorced.' Here is the link to the article: https://www.mamamia.com.au/relationship-tips-covid-19

Apparently, the Global Times reported that there has been a “record-high number of divorce requests in recent weeks” in the Chinese city of Xi’an. The article wonders whether the same might happen in Australia, when couples are forced to spend more time together then they are used to.

Then a colleague sent me this image; - which I found funny, only because it pokes fun at Lawyers, and I think sometimes we need that.

It did cross my mind if there would be more separations as a result of the virus, and if there is - there is nothing funny about that. One reason certainly could be that spending so much time together causes the cracks in the relationship to appear. What is perhaps more likely, is the terrible financial impact this virus is having on Australian families and the tension this will bring to a relationship.

I have seen lots of jokes on social media about how alcohol consumption has increased for many; again, for many this is no joke and it will be the issue that brings a relationship to an end.  Depression over a lost job, fear about finances, increased drinking and/or drug taking – it’s a recipe for disaster with a great concern being the increase of family violence.

If you feel your relationship is floundering since the outbreak, what can you do?

• • Talk to each other about it
  • Get help! You can still access counselling services online or over the phone. There is also a lot of help out there to assist those who are struggling financially -  head to https://www.servicesaustralia.gov.au/ for more.
  • Be Safe – not just from the virus but from dangerous situations. If you are worried about family violence, call the police.
  • Seize the opportunities for quality time with your family, that you may not have had before
  • Hang in there – this won’t last forever.

If you really feel as if your relationship is at an end and you don’t know what to do, call us. We can help.

Nardine Collier is a Nationally Accredited Mediator and has been mediating Family Law disputes for over 25 years. She is a Family Dispute Resolution Practitioner, a Family Law Arbitrator, a panel Mediator for various Australia wide organisations and for courts and tribunals. Nardine regularly mediates at Legal Aid conferences in Family Law, in Cairns and Alice Springs. She is also the Cairns Representative of the Queensland Chapter of the Resolution Institute of Australia.

Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs

In times of crisis, parents have to work together like never before. I say it all the time, co-parenting after separation is very hard, but I have just seen it become even more so in the face of so much uncertainty and fear. Things are changing daily and parents are understandably very concerned about the safety of their children in this crisis.

Here are my top tips for Parenting in a Pandemic (taking some inspiration from the Family Court/Federal Circuit Court recent release for parents/carers on their website).

#1 - Follow existing arrangements and in particular court orders, as best you can, while you can. Strictly following court orders may no longer be possible; for example, the handover place you have been using is now closed. Many state borders are also closed. So, find a practical solution – a different place. Extra time next school holidays.

#2 – Have sensible conversations NOW - not only about your ability to comply with current orders; but what will happen in the event of a lock-down. Try to adopt a practical, “common-sense approach”, that keeps to the ‘spirit of the orders’; but most importantly always considering the safety and best interests of your children. The best outcome for your children is if you can work together to vary arrangements so that children maintain contact with each parent in a safe way.

Record any agreements about new parenting arrangements, in writing.

#3 – Try to understand the concerns of the other parent when negotiating new or revised arrangements. If you are proposing the other parent’s time with the child is restricted, unless they can understand your concerns, they will be opposed to what you suggest. Be mindful that your idea of what is ‘safe’ in this new world may not be the same as the other parent. What can you do to find a solution? If you are the parent who wants to keep the children with them, look at arranging extra contact with the other parent such as Skype, Facetime or telephone. Perhaps ‘make-up’ time could be considered, if appropriate.

#4 – Mediation is still a great option.  The court website advises that if parents are unable to agree, they can make an on-line application to vary existing orders. However - unless it is a case involving family violence, child abuse or is urgent, parents are still required to make a genuine effort to try and sort it out their dispute through family dispute resolution (mediation) before filing an application for parenting orders.

If you do file an application, don’t expect the court will be able to act quickly- except in urgent cases or where the court considers children are at risk.  The court is operating in very difficult circumstances and can only deal with priority matters.

#5 – Get advice. Not just from your Lawyer, but from health professionals, schools etc. Be up to date with the latest Government advice, it might have changed overnight.

Unfortunately, I foresee many situations arising where there will be no agreement, where one parent feels they have had a care arrangement imposed on them by the other parent. This is why it is important to talk about these issues now. You don’t want to be having these conversations in the panic of a lock-down. (At the time of writing this article there has been no such announcement but the indication is, it could happen).

Finally, a plug for the KEEP IT IN CAIRNS (#doitwithalocal) campaign.  Every single person in Cairns will have been affected by this virus. We all know someone who is now out of work. If we can spend every dollar locally, we help keep businesses open and locals in jobs.

Nardine Collier is a Nationally Accredited Mediator and has been mediating Family Law disputes for over 25 years. She is a Family Dispute Resolution Practitioner, a Family Law Arbitrator, a panel Mediator for various Australia wide organisations and for courts and tribunals. Nardine regularly mediates at Legal Aid conferences in Family Law, in Cairns and Alice Springs. She is also the Cairns Representative of the Queensland Chapter of the Resolution Institute of Australia.

Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs

In times of crisis, parents need to work together. This means, making proper arrangements for children in the event of a lockdown situation. The information we are currently receiving is that it is business as usual in relation to court orders and parenting arrangements. In other words, parents should follow existing arrangements and in particular court orders, as best they can. Parents are encouraged to adopt a common-sense approach. As to what is a common sense approach, appears to differ between parents, and this is where disputes are arising.

We think that the best common-sense approach is for the primary carer to retain the children during a lockdown and be willing to offer make up time to the other parent, along with extra phone calls and/or Skype and Facebook communication. This of course depends upon each parent’s situation, the safety of the home and their ability to provide care for children during a lockdown. This is why we suggest the primary carer would normally be best placed to care for children over a two-week period, if children are in their care mostly in any event.

This does not mean the other parent could not take the children for two weeks, but it is most definitely a case by case basis.

For parents who share care, perhaps the common sense approach is that the children stay where they would normally be pursuant to court orders in the event of a lock down, with make-up time to occur at the end of the period.

 

There will inevitably be breaches of court orders during this period, but we doubt the court is going to be much interested in a flood of Contravention applications as a result. For this reason, we encourage our clients to try and reach an agreement about what might happen in the event of a lockdown, because if there is one- it will only be at short notice.

Here are some tips from the Family Law Section:

 

Nardine Collier is a Nationally Accredited Mediator and has been mediating Family Law disputes for over 25 years. She is a Family Dispute Resolution Practitioner, a Family Law Arbitrator, a panel Mediator for various Australia wide organisations and for courts and tribunals. Nardine regularly mediates at Legal Aid conferences in Family Law, in Cairns and Alice Springs. She is also the Cairns Representative of the Queensland Chapter of the Resolution Institute of Australia.

Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs

I’ll set out what equal shared parental responsibility means in the Family Law Act:

“equal shared parental responsibility” means that parents must consult with each other and share responsibility for decisions about “major long-term issues” in regard to the children.

The phrase "major long-term issues" is defined in the Family Law Act as follows:

“issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

1. the child's education (both current and future); and
2. the child's religious and cultural upbringing; and
3. the child's health; and
4. the child's name; and
5. changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.”

To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.”

Consultation

“Consult with” is not defined in the Family Law Act but it has its normal meaning – “Speak to about” But what happens when the other parent is someone who doesn’t respond in a timely manner - or at all?

My suggestion is that in drafting consent orders, you might want to add a clause that says something like:

• for the purposes of consultation, you will advise the other party of a decision you seek to make relating to long term issues to do with parental responsibility. If the other party does not reply to you within 14 days, you will be able to proceed with that decision as if there had been consultation and discussion.

Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs

Even though the family unit is no longer, it is still possible to have a happy ‘family’ after separation (it might even be a happier one!).

The key to a happy family, after separation- is good CO-PARENTING. I also think these tips apply to any family because as any parent/carer reading this article knows, it’s hard enough to parent at times, separated or not. Here are the five “C”’s to good co-parenting, noting that any reference to ‘parent’ is of course referring to anyone in a carer role.

#1: Conflict – getting rid of it

Children do not thrive after separation when parents are in constant battles with each other. A child who is caught up in the bitterness of their parent’s separation is at real risk of suffering psychological harm. I do believe good co-parenting does include conflict, but it is how parents go about managing and resolving their conflict that is all-important. I also believe it is good for children to know that Mum and Dad don’t always agree but they are able to discuss their differences of opinion in a good way.  How is it possible to do this? See #2!

#2: Co-operation - A business-like relationship

Try looking at your co-parenting arrangement like a business relationship. You know that you can be in business with someone you don’t particularly like. You and your business partner might not be friends, but in a good business partnership chances are you treat each other civilly and with respect. You both have a common goal, making your business successful. Business partners will co-operate with each other for that common goal; leaving aside their personal feelings for the other person.

For separated parents your common goal is the happiness, stability, and future well-being of your children. Parents who can put aside their hurt and anger, and co-operate for the benefit of their child, can create happy kids even after separation and will be much happier themselves.

#3: Communication

This is really the key to any successful relationship – good communication. Separated parents will need to work this out. HOW they will communicate? Face to face probably isn’t the best option all the time, so will it be by phone or text or email? There are a lot of new apps out there these days helping parents with communication, such as “Talking Parents”. Also work out WHY you need to talk, for what reasons. What decisions should you discuss jointly and what do you agree you can each decide on when the children are with you?

#4: Consistent parenting

This applies to all families separated or not. Children do best when they have consistency. For together parents this is a united front. For separated parents this means similar rules in each household – as to TV time, social media, jobs, bedtime, and so on.

#5: Consideration

Our wish for our clients here at Collier Family Law is that they can “Divorce with Dignity”. It is always a sad time but it doesn’t have to be soul destroying. It comes down to how parents choose to act and respond; whether they choose to act with consideration of each other, and mutual respect for each other’s role as parents.

 

Article written by Nardine Collier

Family Lawyer Cairns & Alice Springs

Mediation in Family Law matters is also referred to as Family Dispute Resolution (“FDR”). Before a person can make an application in the court for orders about children, there has to have been an attempt to resolve the dispute, by attending an FDR process (a mediation).

If you are invited to attend an FDR process, and you not wish to attend mediation, that is your choice. However, you should be aware that if a person fails to engage in an FDR requested by the other party, a certificate (called a s60I certificate) will be issued stating:

“The person did not attend FDR due to the refusal or failure of the other person or people to attend”.

If proceedings end up being filed in the court, the Court will be able to take into account a party’s refusal to attend FDR if there is an application for costs. It is possible that the Court will make an order for the other party’s costs to be paid by the person who refused to attend mediation; if the refusal to attend mediation increased the costs of the other party. In other words, they had to come to court because the other person in the dispute refused to try and resolve the dispute.

It is always a good idea to get some legal advice about the consequences of refusing to engage in an FDR process.

In most cases, mediation in family law matters is worth a try. There will be some cases where it isn’t appropriate, in which case the s60I certificate will reflect that the Mediator made the decision not to proceed. In that case, a person wouldn’t be at risk of a costs order.