We know it is easy to pay lip service to the idea that the true cost of divorce are the physical and emotional costs. However we simply can’t ignore the financial side of it either. With a simple Google search, you’ll no doubt come across some figures in the thousands of dollars. But each situation has to be considered on its own circumstances.

What can I expect to pay for in a divorce or separation?

Should you go down the route of a formal divorce or separation, you can certainly expect to bear certain costs. For example:

• consultations and meetings with your lawyer;
• legal research and document preparation;
• negotiations undertaken on your behalf;
• court filing and document service fees; and
• any other expenses that leave your lawyer “out of pocket” on your behalf.

There are many factors that can impact the extent of the costs involved with divorce. Consider things like:

• The hourly rates of your particular family lawyer;
• The nature of the post-separation relationship and each party’s behaviour since then i.e. is it amiable and mutual or acrimonious and combative?;
• The length of the relationship;
• The extent of a couple’s financial entanglement with one another;
• The presence of future needs for the child or former spouse;
• The prospects of resolving the issue without going to court;
• How many third parties need to be involved i.e. superannuation funds; banking institutions, forensic accountants and private investigators etc.

The truth is that there is no simple answer to the question of what a divorce will cost. However, by taking the time to find a family lawyer that suits you, you put yourself in a better position to explore how the specifics of your situation could affect your likely costs.

If you would like to know how this applies to your situation, please call us now on (08) 6381 0208 or fill out this form to schedule your first 30-min free telephone appointment.

The post How much will my divorce cost me? appeared first on Loukas Law.

Have you ever wondered what the difference between a barrister and solicitor actually is?  Or what the difference is between a lawyer and someone with a law degree is?

These are common misunderstandings amongst family law clients. And since different jurisdictions have different rules it is important to know the basic difference. Therefore we’ve broken them down for you.

Barristers and solicitors

Legal Aid WA explains the differences in the following way:

Barristers and solicitors are both lawyers. A solicitor meets with you, gives you legal advice, negotiates for you, and prepares letters, contracts and court documents. Solicitors will sometimes hire a barrister to appear in court for you. A barrister is a lawyer that specialises in court work and normally only takes on cases referred to them by solicitors.

In terms of the specifics in WA, Legal Aid WA goes on to say that:

…lawyers are allowed to work as both a barrister and a solicitor. Most of the time, the lawyer you hire will do the work of a solicitor and can also appear for you in court.

What that means then is that all barristers and solicitors are lawyers, but not all lawyers are both barristers and solicitors.

Practising and non-practising lawyers

The Law Society WA explains difference in the following:

A non-practising lawyer has completed a law degree but may not have completed the requirements to be admitted or may not hold a valid practising certificate. They are unable to provide legal advice under the law that governs the legal profession in Western Australia. A practising lawyer is a lawyer who has been admitted with approval from the legal practice board of Western Australia.  They hold a current and valid practising certificate and have met the requirements to be admitted…

In other words, all lawyers have a law degree but not all those with a law degree are lawyers.

Why does any of this matter?

While this might seem like “splitting hairs”, these differences matter a great deal for two main reasons:

1. Cost of services: Firstly, due to the costs associated with court work, barristers tend to have a higher price point than solicitors. While barristers tend not to engage with clients directly, it may help you narrow your search for lawyers that can help you.
2. Validity of advice: Secondly, and more importantly, you really get what you pay for. Or don’t. Only a practising lawyer is able to provide legal advice under the law. Not a non-practising lawyer or even someone with a law degree (let alone someone without any legal qualifications whatsoever.)

It is extremely important to go to a practising lawyer for valid legal advice.

If you are unsure about the suitability of your legal assistance, you can contact the Legal Practice Board of Western Australia to confirm if they are a Practising Lawyer is admitted to practice law in Western Australia.

If you would like to know how this applies to your situation, please call us now on (08) 6381 0208 or fill out this form to schedule your first 30-min free telephone appointment.

The post Lawyers, barristers and solicitors: Know the difference? appeared first on Loukas Law.

Where an inheritance has been received by a party – or will be received in the immediate future – the Family Court is required to consider it.

Contrary to popular belief, it does not fall into a special “protected” category simply because it is an inheritance. We explore how timing and the unique circumstances surrounding an inheritance can affect the Family Court’s treatment of it.

Back to basics

As discussed in our blog The “Four Step Process” – Property Settlement Part I, the Family Court follows four important steps to resolve disputes over property settlement:

1. Identify and value the asset pool: assets, liabilities and resources of the parties;
2. Consider the contributions of the parties made throughout the relationship;
3. Consider the future needs of each party; and
4. Determine whether the proposed settlement is just and equitable.

The timing of an inheritance is an important factor that must be addressed to determine whether it forms part of the asset pool for division at Step 1.

Inheritance received early in the relationship

An inheritance received by a party early in the relationship is generally included in the asset pool for division (Step 1) and treated like any other financial contribution (Step 2), provided it is used for the benefit of both parties.

The weight given to this contribution will depend on all other contributions made by the parties during the course of the relationship.

An inheritance received earlier may be diminished over time by subsequent contributions. The result of this is that while the inheritance may have been significant at the time it was received, it has a minimal effect on the division of the asset pool in a longer relationship.

The overall impact of an inheritance on the asset pool is another important factor to consider. If receipt of an inheritance at the beginning of a relationship has a springboard effect, enabling significant growth of the couple’s asset pool (like purchasing shares that skyrocket in value) the weight of the initial contribution will be much greater.

Obviously, an inheritance that has been spent cannot be divided between parties in a property settlement. However, its benefit can still be taken into account. If a beneficiary party’s contribution (the inheritance) is given greater weight, this may increase their percentage entitlement in a property settlement.

Inheritance received late in the relationship

An inheritance received late in the relationship is unlikely to be included in the asset pool for division (Step 1). In these circumstances, the Family Court will generally establish two separate pools:

• one pool containing the inheritance (or proceeds of the inheritance, such as a house bought with the inheritance funds); and
• one pool containing the balance of the couple’s assets and liabilities.

One significant benefit of this approach is that each pool can be divided at different percentages, depending on each party’s varying contributions to each pool.

The Family Court may “quarantine” a late inheritance from the balance of the asset pool, however, case law has shown that this is the exception and not the rule.

Inheritance after separation that is not yet received

An inheritance bequeathed to a beneficiary party, but not yet received, is a “financial resource” rather than property available for division.

In the context of the Four Step Process:

• The funds are considered to be a financial resource (Step 1);
• The funds are not taken into account as contribution by the beneficiary party (Step 2);
• The funds are not yet available for distribution to the parties in a property settlement, but the beneficiary party will soon have the benefit of those funds to meet the cost of their future needs (Step 3); and
• This prospective benefit must be considered by the Family Court in order to achieve an outcome that is just and equitable (Step 4).

Depending on the facts at hand, the non-beneficiary party’s percentage entitlement of the asset pool may increase if the beneficiary party has access to a significant financial resource after separation.

Key points to take away

1. There is no absolute rule when it comes to the treatment of inheritance in family law matters. As always in the Family Court, every case turns on its facts. However, the timing of its receipt is a highly important factor when considering the treatment of an inheritance.
2. The Family Court’s quarantining of assets is the exception, not the rule.
3. The Family Court will usually deal with an inheritance by:
   1. Including the inheritance in the asset pool and considering its contribution;
   2. Excluding the inheritance from the asset pool and treating it as a financial resource; or
   3. Excluding the inheritance from the asset pool, establishing an inheritance pool and assessing the non-beneficiary party’s contribution to the inheritance pool.

If you are not sure about how this could apply to your situation, please call us now on (08) 6381 0208 or fill out this form to schedule your first 30-min free telephone appointment.

The post In or Out? Inheritance in family law matters appeared first on Loukas Law.

After all, similar values and world views are often what attracts us to a partner. But things can change after separation. Parents’ views on fundamental aspects of parenting can diverge quickly, as their lives take different paths.

What happens when parents disagree about whether or not their child should be vaccinated?

The vaccination debate pits two mutually exclusive beliefs against one another and the stakes are high: a child’s health and well being.

With a potential Coronavirus vaccination on the horizon, we explore the Family Court’s approach to parenting disputes over vaccination of children.

What is vaccination?

 Healthy WA, a WA Department of Health initiative, explains:

A vaccine is a product made from killed or live, weakened strains of viruses or bacteria.

When a vaccine is given it triggers an immune response in your body. This protects you if you come into contact with strains of that disease again in the natural environment.

What is the vaccination debate?

Most parents find comfort in vaccination, believing they are taking proactive steps to safeguard their children from disease and serious health problems.

Australia’s national immunisation program provides vaccination against 16 diseases, some of which have caused many deaths in the past.

While the uptake is relatively high, studies show that around 9% of Australian children aged 2 years old are not fully vaccinated. About half of this number is due to limited access and the other half is due to skepticism about vaccination.

Over the years, apprehensive parents have voiced concern over vaccination of their children. Common concerns include immunisation causing autism, causing SIDS, causing asthma and allergies, containing mercury, and weakening or overwhelming a child’s immune system.

Some parents have opted for alternative therapies and homeopathic remedies, over conventional vaccination. Parents already on the fence may be persuaded to side against vaccination because some of the diseases children are vaccinated against are now uncommon (albeit due to immunisation policies).

Studies of thousands of children worldwide have disproven the concerns mentioned above. Further, the overwhelming majority of authoritative bodies consider vaccination to be the most effective medical tool we have to prevent deaths and reduce disease.

The Family Court’s approach

The Family Court is guided by the principles of the Family Law Act 1975 (Cth).

Section 60CA of the Act states that:

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

Parents use this principle to either advance or oppose an argument for vaccination – depending on which course of action they believe is in the best interests of the child.

The Family Court cannot simply rely on common knowledge about the benefits of and concerns about vaccination. The Family Court must consider medical and scientific expert evidence that is presented in each case and the recommendations made about which course of action – vaccinating or not vaccinating – is in the child’s best interests.

What orders can the Family Court make about vaccination?

Depending on the determination of the Family Court, orders may be made:

• granting one parent sole parental responsibility, allowing them to make unilateral decisions in relation to all major long term issues affecting a child;
• granting one parent sole parental responsibility in relation to medical decisions or vaccination only;
• for one or both parents to do all things necessary to facilitate a child’s vaccination (whether conventional vaccination or alternative therapy); or
• for an injunction that restricts a child’s vaccination (whether conventional vaccination or alternative therapy).

Disputes over vaccination in case law

Case law provides us with some useful insight into the relevant considerations of the Family Court in matters involving vaccination.

In the case of Kingsford & Kingsford [2012] FamCA 889, the Family Court was asked to decide whether a child should be immunised according to homeopathic principles or by conventional vaccination.

The mother brought an application after the father’s wife had the child conventionally vaccinated at a medial centre, in the usual manner for a child of her age. Up until this point, the mother had followed a homeopathic immunisation approach. The mother argued that the child should continue to be homoeopathically immunised and that the father should be restrained from otherwise immunising the child. The father opposed this.

The mother presented expert evidence of a homeopathic practitioner, not a medical doctor, who had an Honours degree in Economics and former career in financial services. The father presented expert evidence of a medical doctor with a Bachelors degree in Medicine and in Surgery, with further medical qualifications.

After considering expert evidence from both sides, the Family Court found that “the efficacy of homoeopathic vaccines in preventing infectious diseases has not been adequately scientifically demonstrated.” While it was acknowledged that both forms of immunisation carried risks, the risk was fairly low in both forms and the risk of harm from conventional vaccination did not outweigh the risk of infection. The Family Court ordered that the child be vaccinated in the conventional manner.

In the case of Duke-Randall & Randall [2014] FamCA 126, the Family Court was asked to decide whether two unvaccinated children should be conventionally vaccinated. At the time of the hearing, the children aged 7 and 8 respectively had each suffered from multiple incidences of whooping cough in the past.

The mother maintained an anti-vaccination position. The father argued that while during the relationship he had agreed to her position so as not to cause any conflict, he was now concerned for the health of the children and the greater impact it may have on their lives.

A Senior Consultant Physician in Immunology and Allergy was appointed to provide expert evidence to address whether there was any medical reason for the children not to be vaccinated. The medical expert found there was not, and recommended that the children have their immunisations brought up to date.

After hearing evidence from all parties and the medical expert, the Family Court decided that the children should be vaccinated. It found that the mother had failed to present any evidence that the children would be adversely affected by vaccination and following vaccination, the children would be able to participate in activities they were unable to participate in when not immunised.

What about a dispute over the Coronavirus vaccination?

Experts from around the world are working on developing a Coronavirus vaccine. Until it becomes available, we cannot be certain how any parenting disputes over its use in children will play out.

Studies have shown that the virus can infect children, however, they are less likely to have symptoms. Symptoms in children are more mild, they are less likely to develop severe illness and mortality in children due to Coronavirus is rare. Perhaps it might be argued that in children, the risk of harm from infection of Coronavirus does not outweigh risks of a new and relatively under-trialed vaccine?

A long established principle is that vaccination on a widespread scale helps to protect people who are not vaccinated through a process called “herd immunity”. This is where enough people are vaccinated against a disease to stop the infection from spreading.

Once a vaccine becomes readily available, a child’s vaccination may well become a precondition – for eligibility to travel, participate in sport or even attend school in person – to establish this “herd immunity”.

Perhaps it might be argued that by not vaccinating a child against Coronavirus, a parent is restricting a child’s participation in a range of activities without tangible benefit?

We will all have to wait and see on this one.

If you are not sure about how this could apply to your situation, please call us now on (08) 6381 0208 or fill out this form to schedule your first 30-min free telephone appointment.

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Grandparents often play a significant role in their grandchild’s life and have a special interest in their care, welfare and development. Family law legislation acknowledges the importance of this relationship and explicitly provides grandparents with the right to apply for parenting orders concerning a child.

Grandparents in family law proceedings will usually come about in one of two situations:

• Grandparents are stopped from spending time with a child

For example, where a grandparent’s relationship with their own child (the child’s parent) breaks down or where the child’s parents separate and one parent refuses to maintain the child’s relationship with grandparents on the other parent’s side of the family.

• Grandparents seek substantial care or parental responsibility of a child

For example, where parents are unwilling or unable to care for a child or where a child is alleged to be at risk of physical or psychological harm in the full time care of their parents

What does the Family Law Act say about grandparents?

Section 65C of the Family Law Act 1975 (Cth) (“the Act”) stipulates that parenting orders concerning a child may be applied for by:

1. either or both of the child’s parents;
2. the child in question;
3. a grandparent of the child; or
4. any other person concerned with the care, welfare or development of the child.

Importantly, this does not afford grandparents in family law proceedings an automatic right to contact with a child. It is merely a right to apply for contact.

Section 60B of the Act focuses on the rights of a child in these situations, rather than the grandparents.  It states that a child has a right to spend time with, and communicate with, both their parents and other people significant to their care, welfare and development – such as grandparents and other relatives – except when this would be contrary to a child‘s best interests.

The best interests of a child remain the paramount consideration for the Family Court when making parenting decisions. Therefore, a child has the right to benefit from a relationship with their grandparents, so long as it is in their best interests to do so.

Section 60CC(2) of the Act sets out two primary considerations that must be addressed by the Family Court when determining the best interests of the child: balancing the benefit to the child of having a meaningful relationship with both of the child‘s parents; and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The latter of the two is to be given greater weight by the Family Court.

Section 60CC(3) of the Act sets out numerous additional considerations that must also be addressed when determining the best interests of the child, some of which include specific reference to grandparents. For example, the Family Court must consider:

1. the nature of the relationship of the child with other persons (including any grandparent or other relative of the child);
2. the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from any other person (including any grandparent or other relative of the child), with whom he or she has been living;
3. the capacity of any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

What kinds of orders can grandparents apply for?

A grandparent may apply for orders that a parent may similarly apply for. These orders may address any aspect of the child’s care, welfare and development, but usually include one or more of the following questions:

1. who a child should live with;
2. who a child should spend time with, and the conditions of such time;
3. who a child should communicate with, and the means of such communication; and
4. who has parental responsibility for a child.

In this sense, a grandparent may apply for orders ranging from communication on a regular basis, to allotted time during the school holidays, to the sole responsibility for making major long term decisions about the child.

Do parents trump grandparents when it comes to family law decisions?

Case law has established that there should be no preferential positions between parents and non-parents (ie. grandparents) making an application for parenting orders. In Valentine & Lacerra & Anor [2013] Fam CAFC 53, the Full Court held that these sorts of applications should be determined in the same way that applications between parents are determined: with regard to the best interests of the child as the paramount consideration.

Are grandparents eligible for financial assistance for the care of a child?

A grandparent with at least 35% actual care of a child in a year may apply for a variety of financial assistance. For example, in these circumstances, a grandparent may apply for a non-parent child support assessment or several Commonwealth payments like Family Tax Benefit B.

A grandparent will generally not be eligible for such assistance if the parents of the child live under the same roof as them.

More information

To find out more about non-parent carer child support payments and other financial assistance, visit the Services Australia website for more information:

• Child Support payments for non-parent carers
• Support for grandparent carers

If you are not sure about how this could apply to your situation, please call us now on (08) 6381 0208 or fill out this form to schedule your first 30-min free telephone appointment.

The post I’m a grandparent. Where do I stand in family law proceedings? appeared first on Loukas Law.

The breakdown of a relationship can bring out the worst in people. Bad behaviour is a common response to moments of desperation, hurt and bitterness.

One of the most prevalent bad behaviours in financial separation is an attempt to deal with assets to the detriment of the other party – particularly where there is a history of deceitful conduct, financial control or family violence.

What does this look like exactly? Hiding assets, selling property without the other party’s consent, excessively spending joint funds without the other party’s consent and re-organising financial entities to prevent the other party from receiving a fair property settlement.

If your situation suggests that your asset pool might be at risk, a number of DIY options are available to preserve it so that a just and equitable financial settlement can be achieved in the long run.

Joint accounts

Intermingled finances and joint accounts are a common feature of relationships. This complicates the ability to protect property as it isn’t always clear as to who owns what.

If you have concerns about the draining of joint accounts, a “two to sign” mechanism is a good option. By requiring both people on the joint account to approve a withdrawal or transaction, there should never be an instance of unapproved expenditure or unilateral cash withdrawals.

This goes for term deposits, investment accounts, credit cards, savings accounts and mortgage accounts with available credit or redraw/offset facilities.

Think about whether your access to joint accounts might be removed and the effect this would have on you. It might be prudent to withdraw some funds from joint accounts and preserve them in a new account to meet legitimate costs of living and legal fees.

Such measures are not taken lightly by the Family Court and ramifications should be considered carefully before any action is taken.

Your income

If your income has always been deposited into the joint account, consider opening a new bank account in your name only and having your income deposited there instead. You will then have unfettered access to your own income.

If you go down this route, be sure to:

1. Disclose details of your new bank account to the other party if you are already engaged in family law proceedings; and
2. Update direct debit details so that you do not default on recurring debt service payments.

If your income is already deposited into an account in your name, consider whether your former spouse or any other party is a secondary cardholder to that account and whether this access should continue.

Logins and passwords

If you and your former spouse have historically shared online banking or investment logins, change these. If the other party’s access to funds is denied by doing so, ramifications should be considered carefully before any action is taken to protect property.

Similarly, it is prudent to change the passwords to your email accounts and electronically stored files if your former spouse knows them.

Although improperly obtained evidence can attract criminal charges, this may not deter a sneaky former spouse from accessing your emails for the inside scoop on your confidential legal advice.

Undertakings

It may be appropriate to request that your former spouse give a written undertaking, a promise that they will preserve the asset pool or maintain access to finances. Undertakings can be general or they can be specific in relation to a particular “at risk” asset or liability.

Undertakings can be a cost-effective tool to maintain the financial status quo, avoiding the need for interim applications in the Family Court.

If made on a mutual basis (both parties making the same promise), undertakings can also be useful to level the playing field and establish a level of goodwill between parties.

From a strategic standpoint, the failure of your former spouse to provide a reasonable undertaking to preserve the asset pool is not a good look. This conduct may be relied upon as persuasive evidence in support of future Family Court applications.

Forensic accounting assistance

It is not uncommon for financially savvy spouses to intentionally complicate finances. This is usually an attempt to confuse the unwitting spouse, decrease the overall value of the asset pool, hide assets or alter income streams.

In these complicated financial cases, it might be useful to engage the assistance of an independent forensic accountant to provide litigation support and analyse records. The findings of a forensic accountant can helping you in protecting property as they may even be relied upon as evidence in subsequent family law proceedings.

Do it yourself but don’t do it alone

Before you make a move, seek legal advice.

Time is of the essence in these types of cases and as such, the ability to provide clear instructions to your family lawyer in an initial consultation is invaluable.

You should endeavour to provide as much information as possible about the assets, liabilities and resources of the relationship, as well as each party’s various contributions throughout the relationship.

It is also useful to provide information about the current legal ownership of property within the asset pool, if that is available to you. Basic ASIC company searches and personal name searches assist in this process.

Last but not least, it is essential to prepare clear instructions on the following:

1. the personality of your former spouse and their prior conduct, including financial dealings with other people or entities;
2. the circumstances of your separation; and
3. the current level of animosity between you both.

An experienced family lawyer will be able to conduct a risk assessment, advise on the best course of action and determine whether Family Court assistance is appropriate for protecting property.

It may be the case that lodging a caveat or making an ex parte or urgent application to the Family Court is necessary.

If you would like to know how this applies to your situation, please call us now on (08) 6381 0208 or fill out this form to schedule your first 30-min free telephone appointment. Loukas Law are the leading family lawyers Perth clients can trust to help them build a future they can live with.

The post Protecting property considered “at-risk” appeared first on Loukas Law.

Divorce isn’t always doom and gloom. In fact, we have many clients that are pleasantly surprised by how liberating separation from a former spouse can be.

It might push you to re-qualify in a different professional field, embark on a small business venture or buy the house that suits you and only you.

At the cusp of this new chapter, it is vital to review and update important details and documents that can impact upon your future.

Financial planning is one such way to start your new future and can involve a number of things to consider.

Will

In Western Australia, a Will is automatically revoked upon divorce unless that Will specifically contemplates the marriage ending. The same does not apply for separation, as the marriage is legally still in existence until a divorce order is issued by the Family Court.

It is a good idea to seek legal advice and update your Will to reflect the changed circumstances. There will likely be necessary alterations to the beneficiaries of your Estate, the Executor/Executrix of your Estate, the property that may legally form part of your Estate and perhaps superannuation details.

Be mindful that divorce orders issued before 9 February 2008 do not revoke a Will due to changes in legislation.

Power of Attorney

When drawing up a General Power of Attorney or Enduring Power of Attorney, a partner is a popular choice of appointed attorney. Divorce does not affect the validity of a Power of Attorney. Therefore, the Power of Attorney will need to be formally revoked if you no longer want your former spouse to be your attorney.

Superannuation

Divorce can result in a changed superannuation landscape which will no doubt influence your financial planning. When reviewing your superannuation details, it is important to consider:

1. Completing an updated binding nomination form for each of your superannuation accounts, ensuring any changes to the beneficiary of your superannuation is recorded; and
2. Where superannuation is received as part of financial settlement and transferred into a new account, explore whether it would be beneficial to consolidate your multiple superannuation accounts.

Life insurance

A spouse is often the nominated beneficiary of a life insurance policy. Again, be sure to update the beneficiary details of your policy if necessary.

Your income and financial position can change considerably after divorce and a policy that was once appropriate may no longer provide sufficient cover. In light of your changed circumstances, it is a good idea to seek advice on whether to amend your existing life insurance policy, switch policies or cancel altogether.

Making big financial decisions

Depending on the drafting of your orders, financial planning and settlement can take some time to complete. It is a good idea to hold off on making any major financial decisions until your anticipated financial position after settlement actually becomes reality.

Even when all involved have the best intentions, things might not go as planned. The last thing you want is to accidentally overextend yourself because there was an unforeseen hiccup in how you thought financial settlement would play out.

For example, you and your former spouse might have a signed contract for sale of the family house, but the sale proceeds won’t hit your bank account until settlement of the sale of the property.

If for whatever reason, the sale falls through before settlement, you don’t want to have committed your share of those anticipated sale proceeds to the purchase of another property.

If you would like to know how this applies to your situation, please call us now on (08) 6381 0208 or fill out this form to schedule your first 30-min free telephone appointment. Loukas Law are the leading family lawyers Perth clients can trust to help them build a future they can live with.

The post Divorce and financial planning appeared first on Loukas Law.

Put simply, yes.

If the Family Court makes an order, either by consent of the parties or by determination of a judicial officer, it is legally enforceable and must be obeyed. Each person affected by each order must comply with the order and take all reasonable steps to do so.

What is a contravention of parenting orders?

A “contravention” is commonly known as a “breach”. Contravention of a parenting order occurs when:

1. a person bound by an order intentionally fails to comply with the order;
2. a person bound by an order makes no reasonable attempt to comply with the order;
3. a person intentionally prevents compliance with an order by a person who is bound by it; or
4. a person aids or abets a contravention of an order by a person who is bound by it.

What sorts of actions might constitute a contravention of parenting orders?

Common contraventions of parenting orders include:

1. Where the parenting orders say a person has parental responsibility for a child, preventing that person from execution of their responsibility.

For example, the Family Court might order equal shared parental responsibility between parents for a child. This requires parents to consult one another about major long-term decisions concerning the child and come to an agreement before such decisions are made. If one parent unilaterally baptises the child and raises them in observance of Catholic faith without the other parent’s agreement, they would be in contravention of the order for equal shared parental responsibility.

2. Where the parenting orders say a child is to live with someone, removing the child from that person’s care during the ordered time, or not returning the child to that person’s care during the ordered time.

For example, the Family Court might order a child to live with the father and spend time with the mother. If the mother refused to return the child to the father at the conclusion of her ordered time, she would be in contravention of the live with order.

3. Where the parenting orders say a child is to spend time with someone, preventing the child from spending time with that person, or negatively impacting upon the child’s time spent with that person.

For example, the Family Court might order a child to live with their grandparents and spend time with the father. If the grandparents collected the child from school early, preventing the father from collecting the child himself and spending his ordered time, they would be in contravention of the spend time with order.

4. Where the parenting orders say a child is to communicate with someone, preventing the child from communicating with that person, or interfering with the communication.

For example, the Family Court might order liberal communication between a child and the mother on the evenings that the child spends time with the father. If the father sits in on all Facetime calls between the mother and the child, intervening and ending the conversation early, he would be in contravention of the communication with order.

When can someone get away with a contravention?

If contravention of a parenting order has been established, the only legitimate defence is a “reasonable excuse”. Circumstances that give rise to a reasonable excuse include where:

1. the person bound by the order did not understand the obligations imposed by the order;
2. the person reasonably believed that their actions constituting the contravention were necessary to protect the health and safety of a person – and the contravention did not last longer than was necessary.

The Family Court is given a wide discretion to determine a reasonable excuse and its decision is entirely dependent on the facts at hand.

“My child didn’t want to go” – is that a reasonable excuse?

A child’s unwillingness to spend time with the other parent is unlikely to satisfy the legislative requirements for a reasonable excuse. To meet the threshold, the parent must have reasonably believed that preventing the child’s contact with the other parent was necessary to protect their health and safety.

Failing that, both parties have a positive obligation to facilitate a child’s contact with the other parent if there are orders in place for such an arrangement.

Nygh J articulated this obligation in the case of Stevenson & Hughes [1993] FamCA 14, stating:

“…there is an obligation cast upon the custodial parent to take reasonable steps to make the child available for access. It is not open to the custodial parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the Father or to discourage the child from remaining on the doorstep and, indeed, this situation is directly comparable to it. It is quite clear that such an approach is wrong and that the wife in this circumstance, clearly, was in breach of her obligations under the order.”

What can I do if someone has contravened parenting orders?

There are two ways to deal with a contravention of parenting orders.

You can apply to enforce previous parenting orders as part of an application in that case or you can make a separate contravention application against the other person.

It is important to seek legal advice before making a contravention application. An unsuccessful contravention application can result in a costs order being made against you, requiring payment of some or all of the other person’s legal costs incurred by the unsuccessful application.

What are the penalties for a contravention without reasonable excuse?

Division 13A of Part VII in the Family Law Act 1975 (Cth) gives the Family Court power to order various penalties in contravention proceedings regarding parenting orders.

Depending on the severity and type of contravention established, the Family Court may:

1. vary the primary order;
2. order attendance at a post separation parenting program;
3. compensate for time lost with a child as a result of the contravention;
4. require payment of a financial bond;
5. order payment of some or all of the legal costs of the other parties;
6. order payment of compensation for reasonable expenses incurred as a result of the contravention (for example, last minute childcare);
7. require participation in community service;
8. order payment of a fine;
9. order a sentence of imprisonment.

If you would like to know how this applies to your situation, please call us now on (08) 6381 0208 or fill out this form to schedule your first 30-min free telephone appointment. Loukas Law are the leading family lawyers Perth clients can trust to help them build a future they can live with.

The post Contravention of parenting orders – does it really matter? appeared first on Loukas Law.

As the cost of living in Australia skyrockets, it is increasingly common for parents to lend a helping hand to their children. It might be in the form of a house deposit, cash to venture into the stock market or funds to jump at a business opportunity.

Whatever the case may be, disputes in property settlement often arise over money advanced by parents during a marriage or de facto relationship.

Upon separation, all too often one party will seek for that money to be repaid to the parents from the asset pool and one will seek for that money to remain in the asset pool for division.

The categorisation of money advanced by parents during a marriage or relationship – as a gift or as a loan – affects its treatment during family law proceedings.

As in layman’s terms, a gift does not need to be paid back and a loan does need to be paid back. It follows therefore, that the categorisation of such financial assistance is pivotal to whether it can be protected in a property settlement.

How does the Family Court treat gifts?

The second step of the Four Step Process requires the Family Court to consider various contributions made by the parties to the property pool.

Unless otherwise stated, a gift is considered to be for the benefit of the party whose parents gave that gift. This means that when assessing each party’s contributions, the gift is treated as an indirect financial contribution of the party who received the gift.

A number of factors will determine whether this indirect financial contribution alone will give rise to an adjustment on property settlement: the size of the gift relative to the overall property pool, the length of the parties’ relationship, how long ago the gift was received and how the gift was utilised.

For example, one party’s parents may gift them the funds to purchase an unencumbered property at the beginning of the relationship. If the equity in the unencumbered property were used as security to make further acquisition of property possible, advancing the overall wealth of the joint asset pool, this gift is a form of a financial assistance that would be considered to be a significant contribution of that party.

That being said, all steps of the Four Step Process and unique circumstances of any given case must be taken into account before an accurate property settlement adjustment can be determined.

How does the Family Court treat loans?

Generally speaking, financial assistance via a loan incurred during a marriage or relationship is considered to be a joint liability of the parties. A joint liability should be repaid from the asset pool, reducing the funds that are available for division between the parties.

Taking advantage of this principle has become common practice for parties in a property dispute, seeing parties redefine what was once universally understood to be a “gift” as a convenient “loan”.

A loan agreement might be drawn up to protect the parents’ financial assistance that was intended for both parties’ shared benefit while they were together, but not to be distributed for the ex-spouse’s benefit after separation.

Behind closed doors, loan agreements of this nature are rarely intended to be enforced by the parents if their child defaults on repayment.

Case law has established that some loans may be disregarded where there is vague evidence as to its legitimate existence and vague evidence of its intentions to be repaid.

In the decision of Af Petersens & Af Petersens (1981) FLC 91-095, Justice Nygh stated:

“It is fairly common in this court to meet a situation where a parent has made a loan to a child which is in all respects legally enforceable, but which is not in fact enforced and would not be really be expected to be enforced. It is no doubt an “obligation” but if the obligation is not likely to have to be met, it should not be taken into account.”

Essentially, the Family Court will look at surrounding evidence when determining the treatment of a loan and whether it should be taken into account.

How do I protect any future loan from my parents?

It is important to be able to provide clear documentation that evidences the existence of a loan. The Family Court is more likely to recognise parents’ financial assistance as a loan where the following criteria are met:

1. The loan is recorded in a written agreement;
2. The written agreement specifies important terms, such as the duration of the loan and structure of repayments;
3. There have been repayments in accordance with the terms of the agreement (and evidence to prove this is so);
4. There is a registered mortgage or charge against a property as security for the loan.

While a verbal agreement with no past repayments can still constitute a valid loan, it is far more difficult to prove its existence to the Family Court. It will be more likely to be categorised as a gift and treated as an indirect financial contribution of the party who received the gift.

If you would like to know how this applies to your situation, please call us now on (08) 6381 0208 or fill out this form to schedule your first 30-min free telephone appointment. Loukas Law are the leading family lawyers Perth clients can trust to help them build a future they can live with.

The post My parents offered me financial assistance – how can I protect them in my property settlement? appeared first on Loukas Law.

Parenting arrangements after separation are not straight forward. It’s not just where your children will spend their weeks and weekends. The intricacies of your children’s lives need to be mapped out – birthday arrangements, authorised medical treatment and requirements for international travel to name a few.

To document these arrangements and finer details, separated parents have the option of entering into parenting plans or obtaining parenting orders. To decide which is appropriate for you, it is important to first understand how they differ.

What is a parenting plan?

A parenting plan is an informal agreement between parents about arrangements for children. Typically, a parenting plan covers the sharing of daily care and responsibilities, as well as how parents will deal with the important long term decisions about children.

Parenting plans are often provided to the Child Support Agency to enable a fair assessment, based on accurate care arrangements.

What are the technical requirements?

A parenting plan can take any format and there is no need for technical legal wording. Pursuant to the Family Law Act 1975, the only technical requirements for a parenting plan are that is:

1. in writing;
2. signed and dated by both parents; and
3. made free from any threat, duress or coercion.

What goes in a parenting plan?

A parenting plan can be as simple or extensive as you like. It can cover anything to do with parenting your children and as there is no one size fits all, can be tailored to suit your and your children’s needs. It will typically include details like:

• parental responsibility for the care, welfare and development of your children;
• how much time your children will spend with each parent;
• how much time your children will spend with other important people, like grandparents;
• where your children will spend important dates, like their birthdays, Mother’s Day, Father’s Day and religious holidays;
• how often and where the children may travel to, including the sharing of responsibilities like travel insurance and passports;
• how you will deal with big decisions like choosing a school or seeking medical treatment;
• how you will contact each other and the tone of that communication; and
• how expenses in relation to the children will be shared.

As children grow and develop, parenting arrangements that were once a perfect fit can become outdated. It is a good idea for a parenting plan to include how to vary the plan if any changes become necessary and how any unforeseen disputes about the plan might be resolved.

A parenting plan can also contain recitals. Recitals reflect the context in which the parenting plan is made, for example, “the parents recognise and encourage the important relationship that the children have with each of them.”

What happens if one parent doesn’t follow the parenting plan?

A parenting plan is not legally enforceable.

This means that if one parent does not honour the agreement, the Family Court is not able to make them abide by it. However, if the situation escalates and an application is made for parenting orders in the Family Court, the court must consider (but is not bound by) the terms of the parenting plan.

If both parents are not following the parenting plan because they agree a different arrangement is appropriate, they can enter into a subsequent and updated parenting plan.

How can I make the parenting plan legally enforceable?

If parents agree to do so, they can make an “Application for Consent Orders” to the Family Court and submit the parenting plan for approval by the Registrar. If the Registrar is satisfied that the parenting plan is in the best interests of the children, legally enforceable Court Orders will be made in terms of the agreement.

If parents do not agree to making the parenting plan legally enforceable, an “Initiating Application” must made to the Family Court seeking parenting orders.

What are parenting orders?

Parenting Orders are made by the Family Court, either by consent of the parents (as mentioned above) or by the decision of a Judicial Officer.

As with parenting plans, parenting orders may deal with the care arrangements for children, as well as parental responsibility for important long term decisions about care, welfare and development of children.

Parenting orders are legally enforceable and each person affected by the order must follow it. In doing so, you must take positive action and all reasonable steps to ensure that the orders are followed. This includes positively encouraging children to comply with the orders.

What are the technical requirements?

To commence proceedings, parents must apply to the Family Court for parenting orders – either jointly if applying for consent orders or independently if applying for parenting orders that are contested.

It is important to seek legal advice before applying for parenting orders, as certain supporting documentation is required, pre-filing procedures must be satisfied and technical requirements for drafting of orders apply.

What goes in parenting orders?

As with a parenting plan, parenting orders may deal with whom the children will live with, the allocation of parental responsibility and any other aspect of the care, welfare or development of the children.

It is important to note that if you seek orders that concern payment of child-related expenses, the correct application must be made.

Judicial Officers often implement processes into parenting orders that reduce further reliance on the Family Court system. For example, they might outline steps that parties have to follow before being able to ask the Family Court to change an order.

What happens if one parent doesn’t follow the parenting order?

The Family Court can penalise a party for failing to comply with a parenting order.

However, Judicial Officers don’t keep tabs on parties to ensure they are playing by the rules. An application must be made to the Family Court, alerting it to the alleged contravention and setting out the relevant evidence.

If the Family Court finds that there has been a contravention without reasonable excuse, it may impose a penalty depending on the severity and type of contravention. Possible penalties include:

1. order the contravening parent’s attendance at a parenting program or participation in community service;
2. compensate the other parent for time lost with children as a result of the contravention;
3. require the contravening parent to pay a bond;
4. order the contravening parent to pay costs;
5. order the contravening parent to pay a fine; or
6. order the contravening parent to a sentence of imprisonment.

If you would like to know how this applies to your situation, please call us now on (08) 6381 0208 or fill out this form to schedule your first 30-min free telephone appointment. Loukas Law are the leading family lawyers Perth clients can trust to help them build a future they can live with.

The post Parenting plans and Parenting orders: What’s the difference? appeared first on Loukas Law.