Ivy Law Group

Considering a child’s wishes in a divorce or separation

Ivy Law — Wed, 10 Feb 2021 02:21:28 +0000

Here, we will explore the effects of separation on children and how the court takes a child’s wishes into consideration when making any final judgements on family law cases.

Effect of a separation on children

Unfortunately, children can be impacted by a separation or divorce just as much as the parents, if not more. This can especially be the case if they feel they have no say in the matter or are forced to choose between two parents. Matters can be complicated even further if the children are too young to fully comprehend the situation and the uncertainty of their future may be overwhelming and scary for them.

While attempting to navigate the emotional impact of a separation or divorce on your children, it’s also important to consider family law legislation and the way that the Court approaches parenting disputes. This is true regardless of whether your parenting matter goes to Court or not.

How does the Court determine what’s in the “best interests” of the child?

The Court will make decisions based on Section 60CA of the Family Law Act when determining what’s in the “best interests” of the child following a divorce or separation.

The Court must prioritise protection of the child from harm (both physical and psychological), along with emphasising the need for a child to have a meaningful relationship with both parents.

Other factors that are taken into consideration include:

The opinion of the child
the strength of the relationship between the child and each parent
the child’s maturity, sex, lifestyle and background.

When taking the child’s opinion into account, the Court will consider their age, maturity, level of understanding and ability to articulate their viewpoints. In general, the older the child, the more weight will be given to their opinions.

How can a child give their opinion following separation?

Children are not typically called upon to speak during family proceedings, but there are several ways in which they can voice their concerns and wishes to the Court following a separation or divorce.

By speaking to a Family Consultant (usually a qualified social worker or psychologist ordered by the Court) at a Child Inclusive Conference. The Family Consultant will then record and report the child’s opinion to the Court.
By making a statement about their choice to an appointed expert such as a psychiatrist or psychologist who will then include the child’s opinion in their report to the Court.
By expressing their opinion to a court-appointed Independent Children’s Lawyer. This is someone who represents the child’s best interests. They make sure that the child is the focus of any decisions made about parenting arrangements, such as parental responsibility and the time a child lives with or spends with each parent.

It is important to note that there may be some circumstances in which the child’s wishes may not be considered. If a child’s opinion appears to be the result of manipulation or influence by a family member, less weight will be given to their statement. This may be the case, for example, if the child only makes their opinion known when in the presence of one parent, or if they only make the statement in private.

Seeking expert legal advice

Navigating through a separation or divorce can be incredibly stressful. Our Sydney family lawyers have extensive experience dealing with separation and other family law matters and are here to help guide you through the process and work out the best solution for you and your family.

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Reaching an agreement with your former partner after separation

Ivy Law — Tue, 09 Feb 2021 05:56:17 +0000

Reaching an agreement with your former partner about financial and parenting matters – such as property settlements and child support is an important part of this process and can help you both to move on with your lives. Once an agreement has been reached, you can obtain a ‘Consent Order’ via the Family Court of Australia.

Here we look at the process for obtaining a Consent Order, what to do if you and your partner cannot reach an agreement and other family law matters you might need to consider after a separation.

What is a Consent Order?

A Consent Order is a written agreement that is approved by the Court. A Consent Order can cover parenting arrangements for children as well as financial arrangements such as property and maintenance. In order to finalise a Consent Order, the Court must be satisfied that the agreement in place is just and equitable, and also in the “best interests” of any child/ren involved in the relationship.

How do I apply for a Consent Order?

It is possible to apply for a Consent Order directly through the Family Court or Federal Circuit Court of Australia. However, without proper legal advice from a qualified family lawyer, you run the risk of the court rejecting your application for consent orders, as well as potentially missing important aspects of the proposed parenting/property arrangements.

Our experienced Sydney family lawyers can help you prepare the Consent Order and answer any questions you may have about the separation process including property settlement matters, parenting arrangements and any other family law matters you may need help with.

It’s also important to note that there is a time limit on making an application for a Consent Order for property settlement or parenting/child support matters. The application must be made within:

one year from the date of divorce for married couples.
two years from the date of separation for de facto couples.

What if my partner and I cannot reach an agreement?

If you and your former partner are struggling to come to an agreement about property or family/parenting matters, there is help available. As always, it’s best to consult an experienced family lawyer who can provide tailored advice on how to best resolve legal disputes and make sure that you come to an agreement that is fair and equitable. It is important to know your rights and responsibilities under the law as it can often be a confusing process.

Your family lawyer can also suggest other avenues that may be helpful to you and your former partner to help you resolve disputes. These can include:

Mediation – this process involves face-to-face discussions between you and your former spouse or de facto partner, usually with your family lawyers present. A jointly appointed mediator is also present and assists both parties to find common ground in order to reach an agreement that everyone is happy with.
Arbitration – this usually involves a third-party (an “Arbitrator”) who meets with you and your former spouse or de facto partner (and usually your legal representatives) to consider the evidence and arguments in dispute. The Arbitrator, who is usually a senior barrister or a former Judge, makes an informed decision to resolve the dispute. The decision is called an award and is legally binding once it is registered with the court.
Collaborative law – this is another avenue in which to explore where you and your former spouse or de facto partner agree to not go to Court to resolve parenting matters. Instead, both you and your former spouse or de facto partner, together with your family lawyers, have face-to-face meetings to reach an agreement. These “round table” discussions include (where appropriate) accountants, financial planners and counsellors.

If you’re ready to get legal help or have any questions about the process you need to follow after a separation, particularly where Consent Orders are concerned, give one of our friendly Sydney family lawyers a call on (02) 9262 4003 for a free, no-obligation initial consultation, or submit an online enquiry.

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Updating your will after a separation

Ivy Law — Mon, 08 Feb 2021 20:50:57 +0000

Here, we unpack what happens if you don’t update your will after a separation or divorce, what you can do to protect yourself, family provision claims, and other estate planning matters you may need to consider.

What is a will?

Wills appoint a beneficiary, who in the event of your death or incapacitation, will inherit your belongings.

Without a will in NSW, the distribution of your assets – which can include tangible valuables that belong to you such as land, houses, cars, and bank accounts – fall under a strict formula called ‘intestacy rules.’ These rules specify to whom and how assets of a deceased estate are to be divided. So, what does this mean?

Under the laws of intestacy, the surviving former ‘spouse’ is the person who inherits the estate. This applies even if they were legally separated at the time of the death and there was no intention from the surviving former spouse to make any provision for their former partner. This also applies to de-facto relationships. To avoid this happening, there are steps you can take to protect yourself. Updating your will is one.

What happens if I don’t update my will?

These rules can also apply if you don’t update your will following a separation or divorce. If there is a Power of Attorney in place for a former partner, this should also be revoked as part of this process.

As an example, a separated couple can be apart for several years and have agreed on a property settlement, but if a former partner unexpectedly dies during this process before a divorce is finalised, the former partner will inherit the entire estate of the deceased former spouse. This is by virtue of the fact that they are still “married” (usually subject to the rights of any children or other eligible persons). This can also apply to Superannuation benefits.

You should also bear in mind that getting a divorce needs to be done as quickly as possible after separation. By law, you need to be separated for at least 12 months before you can officially apply for a divorce. Until a divorce is finalised, your former partner still has a right to claim against your estate.

Obviously, this is not an ideal situation for anyone to be in, so it’s important to update your will as soon as possible after separating. Our Sydney family lawyers can help you make, change or update your will and provide advice on any other family law matters that you may need to think about as part of the process.

Wills, separation and family provision claims

Another thing to consider is family provision claims. These are typically made by a family member where they feel they have been inadequately provided for or excluded in a will. It also applies even where there is no will.

Different states and territories in Australia have their own criteria as to who can make a family provision claim. In NSW, this can include your former partner, even if you were married and then divorced, or a former de-facto couple.

Under NSW law, stepchildren are not eligible to challenge a will on the basis of a family provision claim, unless they meet certain criteria:

Dependence: If the stepchild was ever dependant on the deceased person (this can typically be the case if the families blended when the stepchildren were young), they can make a family provision claim.
Living arrangements: If a stepchild ever lived with the deceased at any time in their life, they could make a family provision claim. Howver, they would need to provide sufficient evidence of this.

It can be a tricky and complicated process. Every situation is unique and sometimes it can be hard to know where to start. That’s why it’s so important to engage a qualified family law lawyer early on.

What other estate planning matters do I need to consider?

A separation or divorce should not be the only time you consider updating your will.

Any time there is a change in your family circumstances, you should be reviewing and updating your will. These could include:

Marriage or the start of a de facto relationship (especially if there are children from a previous relationship);
The birth of children or grandchildren;
If an executor or beneficiary already named in your will dies; and
If your financial circumstances change.

Aside from wills, other financial matters to consider as part of your estate planning include:

Jointly-owned properties;
Superannuation funds and death benefit nominations;
Life and risk insurance policies;
The circumstances surrounding the decision as to whether your will should include Testamentary Trusts;
Any powers of attorney and personal arrangements; and
Having knowledge of the reasons for asset protection and benefits of owning property in family discretionary trusts.

Getting help with your will and estate planning

If you’ve recently separated and need to make changes to your will, but don’t know where to start, our Sydney family lawyers can help.

Seeking legal advice early is the best way to protect yourself, your family and your estate. It can also help to alleviate the anxiety and stress that comes with a separation. Our experienced family lawyers can guide you through the process and answer any questions you may have about estate planning, wills, separation or any other family law matters. We can work with you to put a plan in place that gives you peace of mind, knowing that your family is protected.

Call our Ivy Law Group family lawyers today on (02) 9262 4003 for a free initial consultation, or book an appointment online.

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Federal Circuit Court introduces Lighthouse Project for at-risk families

Ivy Law — Wed, 27 Jan 2021 05:13:12 +0000

The Lighthouse Project is designed to screen for risk and improve outcomes for families involved in the family law system.

How will the Lighthouse Project work?

The Lighthouse Project – which will initially be piloted in the Federal Circuit Court of Australia in Adelaide, Brisbane and Parramatta – involves a three-step process:

Early risk screening

When an Application or Response for parenting only orders is filed with the family courts, parties will be asked to complete a questionnaire via a confidential and secure online platform known as Family DOORS Triage.

The online questionnaire screens for a variety of risks including family violence, child abuse, self-harm and substance abuse. Responses are confidential and only used for risk screening and to identify suitable case management.

Triage and risk assessment

Cases are then assessed by highly skilled and dedicated family counsellors, Registrars and support staff with detailed knowledge in family violence and family safety risks. Based on the level of risk involved, they will then direct parties to the appropriate support services for further help and assistance.

Case management and specialist support

Cases will be assessed and assigned support based on the level of risk involved.

High risk and Evatt List

Cases deemed high risk will be given an immediate referral and action with a family counsellor in a confidential setting. This can be done either by telephone, videoconference or face-to-face. These matters will then be referred to a Registrar for consideration to be placed on the ‘Evatt List.’

This specialist court list is designed to assist families at a high risk of family violence and other safety concerns. The Evatt List focuses on early information gathering and intervention, through a judge-led support team. The team has specialised training and is experienced in working with families where high-risk safety issues have been identified.

Other case management

Low to moderate risk cases will be offered safety planning and relevant service referrals, depending on their individual family circumstances.

Alternative dispute resolution

Some cases may be referred for court ordered Family Dispute Resolution in an effort to resolve issues as soon as possible.

How do I learn more?

Our Sydney family lawyers are highly experienced in a range of family law matters and can help guide you through the family law system. We understand family matters are never easy and the courts system can be complex. It is important to seek legal advice as soon as possible, to protect yourself and your family.

Call us today for a free, no-obligation initial discussion on (02) 9262 4003 or make an appointment online and we can help you with your family law matters. We treat all matters confidentially and with compassion and understanding.

You can also find more information about the Lighthouse Project on the Federal Circuit Court of Australia website.

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A guide to child support in Australia

Ivy Law — Mon, 18 May 2020 22:07:00 +0000

If you are going to have the children living with you most of the time, how will this affect your ability to keep a job? How will you afford to support your children financially? What if your former partner is doing most of the caring? Does that mean you will have to pay more or less in child support?

Here, we step you through the child support scheme in Australia – so you know what to expect and how to get help.

What is child support?

When we talk about “child support”, we’re talking about payments that are made by one parent to another to ensure children are financially supported by both parents. The system recognises the obligation of both parents to financially support their children.

Child support can be in the form of regular payments, a lump sum payment, payment of certain expenses such as school fees or the transfer of property.

The Child Support (Registration and Collection) Act 1988 and Child Support (Assessment) Act 1989 set out the scheme for child support in Australia. This legislation says the objects of the scheme are not just to ensure children receive proper financial support from parents, but also that the amounts payable as child support are “paid on a regular and timely basis.”

For a comprehensive guide on and more information on child support, visit our Child Support page. You can also contact our Sydney child support lawyers for a free consultation about your individual situation and how we might be able to assist.

Who can claim child support?

A parent of a child under the age of 18 years, who has the care of the child and does not live with the other parent, can claim child support from the other parent.

It doesn’t matter whether you were married to the other parent or whether you’re negotiating a property settlement, claiming spousal maintenance or have divorce proceedings on foot. The child support process can be dealt with separately from these other issues, orders and proceedings. In order to claim child support, both parents should generally be living in Australia. However, in some circumstances it may be possible to claim child support from outside Australia or from someone living outside of Australia.

Who should pay child support?

This is a question our Sydney child support lawyers get asked often. It comes down to a few factors, including:

the number of children and their ages
your income
the other parent’s income
how often you care for the children
how often the other parent cares for the children.

The assessment guidelines indicate you’ll receive child support if your percentage of care of a child is more than your share of the combined income. Similarly, expect to pay child support if your percentage of care of a child is less than your share of the combined income.

If you’re providing 90% of the care and gave up your career 10 years ago to raise the children, while your former partner continues to bring home a healthy 6-figure income, it’s easy to see that your former partner should be providing financial support for the children.

However, the issue isn’t always so clear cut. And even when it is, how do you work out exactly how much support should be provided?

Your child support options

If you and the other parent can agree on how much child support to pay, and how and when it will be paid, you can choose self management for child support.

Once you’ve reached an agreement and want to make things more formal, you can enter into an agreement about cash payments and things like health insurance and school fees via:

a limited child support agreement
a binding child support agreement (a written agreement signed by both parents which can only be made if you’ve both had legal advice).

These agreements are sometimes negotiated at the time of property settlement, and are sometimes used in the negotiations. For example, one party might say they will take only 50% in a property settlement rather than 55% if you enter into their proposed child support agreement.

If you can’t reach an agreement about child support, you can apply for a child support assessment.

Services Australia manages the application process for child support assessment. They’ll use a formula to calculate your child support for a certain period.

Once an assessment is made, you’ll need to tell Services Australia if your income, relationship status, care arrangements or other details change.

How do child support payments affect Centrelink benefits?

For self managed child support options, you need to be aware that you can only get the base rate of Family Tax Benefit Part A. So, you may need to apply for a child support assessment if you want to receive more than the base rate of Family Tax Benefit Part A.

What if my ex fails to make child support payments?

Services Australia will help you recover unpaid child support payments if you use their Child Support Collection option to collect payments. They have a range of options available, including deducting money from payments from employers and tax returns or seizing assets.

You can also turn to the Courts in limited circumstances, too. The Court will only hear certain disputes about child support. These include the following applications to the Court:

declaring that a person is or is not a parent of a child for the purposes of paying or not paying child support
an urgent application for the payment of child support
leave to depart from an administrative assessment for a period over 18 months but less than seven years ago
a declaration that child support is to be paid in a form other than periodic amounts
an application to set aside a binding child support agreement if the agreement was obtained by fraud, undue influence or duress or there are exceptional circumstances
an application to set aside a limited child support agreement if there has been a significant change in circumstances of one of the parties or the annual rate of child support is not proper or adequate
a stay order temporarily suspending or reducing the payment of child support until a final order is made
child maintenance or overseas child maintenance orders.

If the other parent is not making payments, or not making payments as agreed, you should seek advice from our Sydney child support lawyers as soon as possible. There are ways we can help you get financial security for your children.

How do I learn more?

This guide provides general advice only. While it can help you understand the system better, getting tailored advice from our child support lawyers before making any decisions is the ideal option.

Whether you need advice on how much child support you should receive or pay, assistance in preparing an application or help registering an agreement, we can help. Contact our Sydney child support lawyers today on (02) 9262 4003 or submit an online enquiry for a free, initial no-obligation consultation.

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Ready to separate or divorce after COVID isolation?

Ivy Law — Tue, 12 May 2020 00:32:00 +0000

If some big relationship questions have come up for you and your spouse or partner, you’re probably feeling a mix of emotions. Uncertainty, sadness and loneliness are common during this time. Be reassured, though, that you’re not alone and there is a way out of this situation that probably feels quite messy right now.

Looking to separate or divorce after COVID? You’re not alone.

Our Sydney lawyers are already fielding calls from people who are thinking of separating or divorcing now that social isolation restrictions are easing a little. When our lawyers speak with their family law colleagues, they are hearing a similar story.

It’s not surprising. China – the country first hit by the virus and lockdowns – reported a spike in divorces as restrictions began to lift. In one Chinese province, news reports indicated that workers at a government office didn’t “have time to drink water” because so many people were lined up to file for divorce.

Even without observing this trend overseas, the potential for a divorce spike seems inevitable. First, there’s the financial chaos that this pandemic is inflicting. A loss of income and a nosedive in the value of assets can be problematic for personal relationships. In 2009, following the Global Financial Crisis, statistics indicate the number of total divorces in Australia increased by 4.7%. We can only assume there is a likely chance that many defacto separations mirror this figure.

Working from home, self-isolation policies and forced proximity have created a perfect storm in some households, putting a spotlight on longstanding unresolved relationship issues. With constant news reports of the human toll of this virus, many are also reflecting on their life and their own mortality. We might be picturing our lives post-COVID – and for some that future doesn’t involve their “other half”.

Is it just a crisis or is it over?

We’ve all likely had ups and downs in our relationships, and these may have been amplified by the COVID-19 crisis. You may be wondering whether it’s really over or just a blip on the radar caused by truly difficult circumstances.

It really comes down to whether your relationship is a healthy one that’s worth saving or a toxic one that you can no longer continue to be part of.

Psychologists say these things may help you decide which category your relationship falls into:

What does your gut tell you? To get out or stay the course?
Does your partner make you question your own reality or doubt your gut feelings?
Is your partner inconsistent – building you up at times and then criticising you?
Does your partner’s behaviour stop you from seeing your family or friends or doing the things you love?
Do you feel you can be yourself around your partner? Or do you feel like you’re never good enough?

If you have children, it’s also important to think about how they are being impacted by ongoing conflict. Are your constant fights causing distress to your children? Looking at the whole picture can help make your decision to separate or divorce an easier one.

What to do if you’re ready to separate or divorce post-COVID

So, your gut (and someone such as your closest friend) is telling you it’s time to end the relationship and move on with your life. The immediate impact of that decision alone can be devastating. While it’s easy to feel a sense of failure, it’s important to remember that about one in three marriages end in divorce, and again, we can only assume there is a likely chance that many defacto partner separations mirror this figure. Your marriage or partnership may have failed, but you haven’t.

Once you’ve made the decision to separate or divorce, it’s critical that you have a plan to guide you, a support team behind you and a vision of a fresh new life ahead of you. In particular, we recommend these steps:

Consult a legal adviser with experience with family law issues. Our Sydney family lawyers can help you clarify your decision, understand what is ahead, form a plan and make the right decisions. Remember, seeing a legal adviser doesn’t mean you have to go ahead with the separation or divorce, in fact it sometimes may even help the relationship by giving you the chance to not feel unsettled knowing things can be resolved in the future and or your interests protected. Sometimes this just adds a sense of security for people who are often feeling bewildered.
Tell your lawyer about any abuse or violence, or any fears you may have about your partner disposing of assets. You can get help and it’s important that your lawyer is aware of these things to form the best strategy to help you. One possible strategy, for example, is to make an urgent application to get your partner out of the home if they are refusing to leave.
Find support from a close friend who you know will have your back no matter what. Someone you trust completely to keep things confidential.
Talk to a counsellor with expertise in family separations. Children may also benefit from the support and strategies provided by an independent professional. Relationships Australia is one organisation that offers an affordable counselling service to those experiencing family issues. Unifam Youth Services may also be able to help young people deal with family issues.

During this difficult time, it’s important to remember that the family law will now decide what is just and equitable – not your partner. Don’t listen to self-serving advice or comments. Don’t listen to put downs. And do not listen to ultimatums about property and parenting arrangements.

Keep in mind that your discussions with your lawyer should remain private. Change passwords on your phone and email to prevent any snooping. It’s critical to keep advice and strategy confidential.

Remember your priorities, too. Try to keep things as neutral and normal as possible for your children. Stick to routines and don’t fall into the trap of talking about relationship issues in front of them. If you need some help, consider joining a support group for parents or taking a post-separation parenting course.

Speaking to a family law expert

Throughout this pandemic, we’ve been told that we’re not alone and that we should get support if we need it. The advice is the same for a personal crisis like separation. And just as there will be a way forward for the world after the pandemic, there is a way forward for you after separation or divorce.

If you’re ready to get advice about separation or divorce, contact our Sydney family lawyers today for tailored advice about your family law situation.

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