Can your legal fees come from the joint money of the relationship?


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.

DEMANDS FOR PARENTAGE TESTING – “that child is not mine”


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.

I want to change the locks –
The Good, the Bad and the Frustrating

One of the questions we are asked at the first appointment with a client is “can I change the locks”.

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.

Separated, and don’t know where to start?

Cairns Family Lawyers Solicitor | Family law cairns

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!

When should children live in a shared care arrangement?

Cairns Family Lawyers Solicitor | Family law cairns

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.

When should a child start spending overnight time with the other parent?

Cairns Family Lawyers Solicitor | Family law cairns

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.

Financial agreements – do they work?

Cairns Family Lawyers Solicitor | Family law cairns

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? Continue Reading

FAMILY TIES: How to have a happy family – even after separation!

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.

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Run Towards The Roar

I credit this blog to two amazing women I am lucky to know at the moment. Lucy Stokes who nags me to write blogs and then has the tedious task of posting them for me; and Laurie Pritchard who runs Small World Adventure Tours and who sits on the Cairns Business Women’s Club Board with me.

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What Are Consent Orders For Property?

Family Lawyers

Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs

What are consent orders for property? Is this something I need to consider?

Yes. If you have reached agreement with your former partner or spouse about your property, you most definitely should finalise it by way of consent orders. So – what are consent orders and what do you need to do?

What are “Consent Orders”?

When we say “Consent orders” we are talking about an application that is made to the Family Court asking the court to make orders in relation to property. There are two forms that are submitted. One is the Application itself, where you set out your details, list your property, and give the court information about relevant matters and what the division of property is going to be. The second document is what we call “Minutes of Consent Orders”. This document contains the actual orders you are asking the court to make – for example, “that the Husband transfer to the Wife his right title and interest in the former matrimonial home at 1 Brown Street..etc. “

But we agree – do I really need to bother with this process? I don’t want to go to court.

YES! You do!! Firstly, you don’t actually go to court, the orders are filed in the court but the Registrar will consider them in chambers without you having to attend. The Registrar will make the orders if he or she considers them to be “just and equitable” – i.e. a fair outcome taking into account the facts of your particular case.

By filing an application for consent orders, if the court approves them the orders become orders of the court just as if you went to court and the Judge decided after hearing your case. Once you have final court orders in place, in theory, no-one can come back for another go! As with everything there are exceptions to the rule of finality which I won’t go into here – you are fairly safe to assume that the final orders are just that and there will be no future attempts made by anyone, to alter the division of property. This means you can now get on with your life financially knowing that your future earnings and property are protected from any further claims.

The next good reason to have consent orders is that you can enforce the orders if necessary. For example, your ex refuses to sign the transfer of title for the house. You can ask the Registrar of the Family Court to do so, if you have those orders in place. If your ex is supposed to pay you money for your share of the house and they default, court orders allow you to have the property put on the market and sold.

The other advantage is that if you have a court order, you are exempt from stamp duty if you are taking over the title in the house.

Can I prepare a consent order myself?

You can certainly download the form from the Family Court website – it’s called an Application for Consent Orders. You will be able to fill in a lot of the form yourself, and the form has a very helpful section at the start which explains the form and how to fill it in.  However, just about everyone I speak to tells me that there are sections of the form that they are just not sure about. If the form is wrong, the Registrar will often not make the orders sought, so you have to get it right. Then there is the second document, the actual orders themselves. It is VERY important to get this right and to ensure that you have all the necessary orders to protect your interests. You will struggle to find a precedent online and every case is different, so the precedent you might find, may not suit your case.

It really is best to get some legal advice. At Collier Family Law we are happy to work with you as a “DIY…WOH” 😊 DIY – as in, you fill in as much of the form as you can to save our time (which is your money) but “with our help” – we check the form for accuracy and make sure all the necessary orders are in there, correctly worded.

What does it cost?  

There is a court filing fee of $165. You may be exempt if you hold certain government concession cards or can demonstrate hardship. The legal fees for preparation can vary depending on how complex the document is and how much of it we do for you, but we will give you that estimate at an appointment.

Can I get a final agreement any other way?

Yes, you can enter into a financial agreement. The process is quite different however and you must obtain legal advice before thinking about a financial agreement, as to whether the consent orders process is a better option.

Nardine Collier is a Nationally Accredited mediator and has been mediating family law disputes for 20 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, and regularly mediates at legal aid conferences in family law, in Cairns and the Northern Territory. She is also the Cairns representative of the Queensland Chapter of the Resolution Institute of Australia.

Divorce Hotel

I thought this was an interesting idea…
The Sydney Morning Herald recently published an article (12/9/18) entitled “Divorce hotels are coming to Australia”. That article states:
“The premise is simple: couples check in to a hotel in two separate rooms for two nights, where they undergo mediation processes behind closed doors and away from outside responsibilities.
The idea is that, over the course of a 48-hour hotel stay, all divorce arrangements can be made.”

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