Category: Family Law

If you have separated from your spouse or partner, you might be asking yourself is there a time limit for a property settlement?  It is critical you are aware there are time limits for a property settlement after divorce if you are married, or a property settlement after separation if you are in a de facto relationship.

Our experienced team of family lawyers at Forge Legal can advise you as to the time limits that apply to your property settlement so you don’t miss the critical date and potentially lose your rights to make property settlement claim.

What are the time limits for a property settlement after divorce / separation?

If you are married the time limit is one year after your divorce becomes final.  You do not need to wait until you are divorced to commence your property settlement and any claim for maintenance.

If you are in a de facto relationship the time limit is two years from the date of separation.

The property settlement process can start any time after separation.  We recommend you commence property settlement negotiations soon after you have separated so that if you are able to reach agreement your property settlement can be finalised without having to go to Court.  If you do not start the property settlement process shortly after you separate, or you wait until after you are divorced, there is a risk that negotiations may take longer than you expect.  You may then have to file a court application so that property settlement proceedings are commenced before the time limit ends.

If you have not finalised your property settlement you need to commence court proceedings before the time limit passes or you may forever lose your rights to seek a property settlement.  Once the time limit passes, if you have not filed proceedings, unless both parties consent to an application being filed out of time, you need permission from the Court before you can make an application for property settlement.  This is known as obtaining the ‘leave of the Court’ to proceed out of time.  Leave is usually only granted in exceptional circumstances and there are strict grounds that must be met.

What if the time limit has already passed?

There may be certain factors as to why you have not finalised or commenced proceedings for property settlement before the time limit passed.  Our team of expert lawyers at Forge Legal have helped many clients obtain the leave of the Court to proceed out of time and achieve successful outcomes as to their property settlement.

Grounds for obtaining leave to proceed out of time for property settlement?

In order for the Court to grant leave to proceed out of time you need to satisfy the Judge that:

1. Hardship would be caused to you, or a child of the relationship if leave is not granted;
2. You have a real probability of being successful in your property settlement claim;
3. In relation to claims for maintenance, at the end of the period before the time limit expired, your circumstances were such that you would have been unable to support yourself without an income tested pension, allowance or benefit.

If you satisfy these requirements the Judge will then also consider the following factors in determining whether to exercise his/her discretion in granting leave to proceed out of time:

• Length of the delay outside the limitation period;
• Reasons for the delay;
• Strength on the merits of your case;
• History of the proceedings;
• Conduct of the parties;
• Any likely prejudice and consequences to be caused to the other party or third parties if leave were to now be granted;
• Degree of hardship likely to be suffered if leave is not granted;
• Weighing the desire to pursue a remedy out of time against impinging on the capacity of the parties to proceed with their post separation lives free of prospective litigation.

The overall factor that the Judge will consider is whether granting leave will do justice between the parties.  The onus of proof is on you, the applicant party seeking to proceed out of time.

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Cases

In Hertwig & Hertwig [2018], leave was sought by the husband to commence property settlement proceedings some four months after the limitation period.  The husband had attempted to commence proceedings about two days before the limitation date expiring but encountered difficulties with the filing of the documents.  It was asserted by the husband that the wife had diverted a property, being a significant asset, to a trust entity controlled by her parents, in circumstances where prior to separation the property had been financially supporting the parties and their children.

The Judge considered that the consequence for the husband if leave was not granted was that he would be prevented from asserting any right to an interest in the property (now held in a trust controlled by the wife’s parents) based on a consideration of the various contributions the husband made during a relatively lengthy relationship, other than at the discretion of the trustee of the trust.

The Judge considered the loss of the right to institute proceedings was a significant consequence to the husband, particularly given on his case the property constituted the only asset of the property pool of the parties.  The Judge took into account that the wife had taken the benefit of a significant asset which financially supported the parties and their children before separation and if leave was not granted the husband would lose the opportunity to seek orders in relation to the property.

In this case, the parties were still to resolve parenting matters.  The Judge granted leave for the husband to institute proceedings for a claim for property settlement taking the view that the potential for injustice to the husband of being unable to pursue a property settlement if leave was refused, was more significant than any prejudice to the wife of having to engage in property settlement proceedings at the same time as the parties were engaged in finalising their parenting dispute.

In Edmunds & Edmunds [2017], neither party commenced proceedings within the limitation period.  The wife sought leave to proceed with a property settlement application 6 years and 9 months after the time limit had expired.  The Judge noted that the wife as the applicant had the onus (duty) of proving the fundamental question, that the justice of the case required leave to be granted.  It was not for the husband as respondent to prove whether the application to proceed out of time should be granted.

The parties were married for around 17 years and had 3 children, the youngest being seventeen at the time the application was made by the wife.  When the parties commenced living together the husband had an interest in 2 properties with his first wife and the wife had little assets of value.  During the relationship, the wife’s parents loaned/gifted the parties $25,000 which was used towards the purchase of a property that was renovated and later sold.  When the parties separated they owned 2 properties in joint names and had superannuation.  The total net value of the asset pool was around $552,000.  By the time the wife’s application for leave was before the Court, the husband’s asset position had become significantly greater than it was at the time of separation.  The wife contended there was an informal agreement as to property settlement but the husband denied this and there nothing was ever formally documented.

In this case, the Judge considered:

• the financial and non-financial contributions of the parties;
• all of the evidence given by the parties;
• the likely percentage division if a Court was to determine a property settlement claim, in comparison to the value of the assets already retained in each party’s own name;
• the likely costs to be incurred by each party if leave was granted and property settlement proceedings pursued;
• the significant prejudice to the husband in responding to the wife’s claim for property settlement, including the passage of time on the availability of documents and witnesses and his recollection of relevant matters from 25 years prior;
• the length of the delay, being the limitation period had expired 6 times over;
• the wife’s failure to take any action despite being aware of the time limit and her inadequate explanation for the delay;
• the wife’s actions after separation not being likely to raise a reasonable expectation she would later make a claim for property settlement.

The Judge refused to grant leave for the wife to proceed with a claim for property settlement on the basis that hardship had not been proved.  Consequently, the parties were left to reach agreement or seek orders through State based laws for the properties to be sold, meaning the proceeds would be divided equally as the properties were held in joint names.

Legal Advice

If you require legal advice as to your likely prospects of obtaining leave to proceed out of time, contact our family lawyers at Forge Legal.  Act now, don’t delay as this may impact on your prospects of success.  Our friendly and understanding team will provide you with the expert advice you need and guide you through the property settlement process.
 

For business men and women, their hard-earned assets are worth more than just a dollar value. Most entrepreneurs invest significant hours in starting up a business and poor their heart and soul into making their business successful. Aside from the heartache, blood, sweat and tears that goes into starting up a business, keeping that business running is also a labor of love. Whether it’s big business or sole traders the level of dedication and expertise that it takes to start and run a business should be admired.

As a family lawyer, I am often confronted with situations where business owners wish to fiercely protect their business in the context of separation, and rightfully so.  Too often do I see the scenario where companies, family owned business and sole business ventures are demolished by a separation and subsequent property settlement. This is unsettling for me as a lawyer but this pales in comparison to the lifelong consequences for my clients.

So how do we “divorce proof” a business? Better yet, can we actually “divorce proof” as business? Simply put, yes, there are ways that you can protect your business from falling victim to a property settlement. While there is no full-proof way of doing so, there are some simple measures a business owner can implement to protect their most precious asset.

Do not include your spouse in your business

For most people this is easier said than done however, there is beauty in separating business and pleasure. A person’s entitlement pursuant to a property settlement is largely based on contributions (among other factors). If a person has not made financial contributions to a particular asset of the relationship it is more difficult for that person to seek a portion of that asset.

As a disclaimer, this is one of those measures that isn’t exactly full proof. The Family Law Act 1975, recognises non-financial contributions, so for example if the wife stayed home and looked after the kids and the household while the husband built the family business, then it is likely that she will have an entitlement. So, in short whilst not full proof it certainly helps to keep your spouse out of the business where possible.

Separate your business and personal finances

Your personal finances are your household bills, mortgage repayments and your personal or family accounts. Making a distinction between your business accounts and finances and personal accounts and finances may make it easier to identify the value of your business and your contributions towards that business.

This is something that you want to establish from the outset of your business and/or relationship to ensure there is no blurring of the lines when it comes to business finances and personal finances.

Pay yourself an appropriate salary at market rate

This is a bit of on overlap of business and personal finances which is inevitable. The key is to make sure that you are paying yourself a market-rate salary, so do you research and make sure you are not overpaying or underpaying yourself. A comparative analysis of similar roles in your area of expertise is ideal.

Ensuring that you are paying yourself the right salary undermines any assertion that you may have redirected family resources to your business and vice versa.

Keep detailed financial records

Aside from your obligations under the Corporations Act 2001 to maintain accurate and transparent financial records, keeping detailed financial records can also assist in the context of a property settlement.

Financial disclosure is paramount in a property settlement. Both parties must have an informed understanding of the financial position of the other and the value of all assets, liabilities and financial resources including businesses. Accurate records ensure an accurate valuation of your business to guarantee you are not over-estimating the value of your business to your detriment.

You also want to avoid a situation where directors loans are creating substantial accounts which may be vulnerable in a property settlement. All directors’ loans should have an adequate paper trail to be exchanged through the disclosure process.

The good ol’ pre-nup.

Formally known as a Pre-nuptial Agreement, these days we call it a Binding Financial Agreement which can be entered into prior to entering into a relationship, during the relationship or post separation/divorce.  There is a stigma associated with a Binding Financial Agreement where there is an inherent assumption of lack of trust in a relationship or assuming your relationship is doomed for failure. If we look at this in a different context, we don’t prepare a Will waiting for death or tempting fate when it comes to your inevitable demise. We prepare a Will to ensure that when we do pass away our family and loved ones are provided for. A Binding Financial Agreement is hardly different. This agreement is only implemented in the event of a breakdown, as a protective measure for yourself and your spouse. If you are fortunate enough to celebrate your 100^th wedding anniversary with many years more than it is unlikely that you will have to implement this agreement.

The best time to consider entering into a Binding Financial Agreement with your spouse with a view to protecting your business is prior to marriage or at the outset of your relationship. Where you are considering amalgamating your finances and jointly purchasing or maintaining assets a Binding Financial Agreement can protect both parties’ individual wealth.

A Binding Financial Agreement should detail how property and financial resources should be dealt with upon the breakdown of a relationship.  An agreement entered into prior to the breakdown of a relationship will avoid the messy negotiation process and set out detailed instructions for the division of assets. Bear in mind that both parties’ must have independent legal advice prior to signing a Binding Financial Agreement. This is a non-negotiable.

Again, a disclaimer that Binding Financial Agreements, whilst a useful tool and at times an incredibly powerful document are not always a certainty when it comes to protecting your business. A Binding Financial Agreement can be challenged on numerous grounds which would take me days to summarise, so for now keep this in mind and make sure you seek legal advice around the technicalities with these agreements

Blatantly put, don’t rely on your rose-colored glasses when it comes to your relationship and protecting your business. The wise-man said that one must always be prepared for anything. There are practical ways to ensure that your business and hard-earned wealth is preserved upon separation. For those who have invested their lives into their business and sacrificed a myriad of life’s pleasures to keep that business running, be pragmatic, make sure you get legal advice and consider your options for safeguarding your business in the event of separation. There is peace of mind in knowing that you have taken all the necessary steps to ensure that your business and for some people your life’s work is protected in the event of a separation

At Forge Legal we have expertise in family law and commercial law. Our team of experts work closely together to ensure every facet of our client’s lives are considered and sheltered from life’s unexpected miseries.  We take a holistic approach to your matter and ensure that we provide you with advice that will conclude your matter ensuring your needs are met and your family is taken care of. We are at the forefront of all areas of law and stay ahead of the curb for the benefit of our clients. Call our expert team of lawyers today for advice about your family law matter, your commercial law matter or both.

Chances are that if you are reading this, you’re experiencing some difficulty concerning the child custody arrangements for your children.

Whilst shared parenting is a common occurrence in this day and age, sorting out arrangements for your children and parental conflict take a huge toll on both parents and kids alike.  So many parents are not child-focused and let stress and emotions guide their behaviour and actions – which can have a disastrous effect on the outcome of your case.  It is vital to be prepared with the likely obstacles you will face, not only legally, but emotionally and financially.

Don’t Make These Top 10 Mistakes in Child Custody Matters

Talking Badly About the Other Parent to the Child

This is unfortunately, yet unsurprisingly, the most common mistake we see parents make and it is displayed by both mothers and fathers in many child custody cases.

For many parents, the reality is that their child is the only person with any knowledge of the family breakdown or the interactions between the parents, which in turn leads to that child acting as the listening post.

What many parents fail to realise is that, in the midst of their heightened emotions, the child involved suffers in many different ways.

A child privy to the negative views of one parent toward the other can often feel pressured to take sides.

It is important to remember that denigration of one parent by the other does not only present itself in the form of the parent speaking directly to the child, but also in other instances such as overheard conversations by a child.

Even if unintentional, talking negatively about your spouse to a friend when you think your child is in another room or cannot hear you, when in fact they may be listening, can undermine the relationship that your child has with the other parent. Remember, children are often curious and will listen in on adult conversations.

As children grow older, even into adulthood, they tend to look at their parent’s behavior and may judge you if they perceive you have undermined their relationship with the other parent.

Apart from the impact on the children, denigrating the other parent will also cause the Court to look unfavorably upon you. Judges are acutely aware of the impact it has on children. Such behaviour can see parenting matters change drastically, simply due to the manner in which one parent refers to the other.

The most effective way to combat this mistake is to ensure that you have proper channels of stress relief. Where you feel that speaking to someone is necessary in order to air your grievances, a psychologist/psychiatrist or GP can offer an independent listening ear and advice on how to cope.

Trying to Make Your Child Feel Sorry for You, Even if Unintentionally

This issue is referred to by the family law courts as attempting to align a child’s views to those of a parent, or parental alienation. This is a particularly harmful act as it has the same consequences upon your child as discussed in item 1 above, but also exhibits to the Court you are not child-focused and suggests an issue of your inability to co-parent and act in the child’s best interests.

It is not helpful for your own relationship with the child as it effectively reverses the roles between the parent and the child, with your child more-so taking on the role as the parent. Children require your guidance, not the other way around.

Such behaviour can be malicious, with deliberate intention to hurt the other parent, such as telling the child the other parent doesn’t pay for anything and to ask them for money, or telling the child that the other parent is a bad person for whatever reason.

However, such behaviour does not only involve direct acts of seeking sympathy, it can also be instances of sub-conscious behaviour such as:

• Crying in front of the child;
• Telling the child that the other parent is taking you to Court
• Expressing distress over the family breakdown such as providing details about not being given any money or being ‘kicked out’ of the family home.

The impact your behaviour has on your child can be significant and, in most cases, cannot be undone, so you must always be mindful of your actions and behaviour.

Not Trying to Communicate With the Other Parent

This is a major issue for two reasons, the most important of which is that your children need to see their parents communicating for the good of their well-being. Failure to communicate with the other parent can be extremely detrimental to many aspects of your child’s life, including but not limited to medical care, education and social development. Children miss out on things when their parents can’t communicate. They also learn to play one parent off against the other in trying to get what they want.

The second reason is that the Court may take a negative view against you if you fail to try to communicate with the other parent. In children matters, the Court’s primary concern is the best interests of the child, on which all of its decisions will be based.

Thus, failure to communicate will translate to the Court that you are not willing to promote the relationship between the child and the other parent, being an essential part of parental bonding and social development.

You don’t need to be best friends, but you chose to have a child together, so the Court expects that you can behave in a child focused manner and exchange important information for the sake of your child.

If you find it difficult to correspond with the other parent, it’s wise to agree on one medium of communication that will minimise conflict. Many separated parents prefer to email, text, or use a communication platform such as ‘Our Family Wizard’, finding that written communication elicits less emotion and keeps conversations more child-focused and appropriate.

If the Court considers that you are genuinely not willing to promote a relationship between the child and the other parent without good reason, there is a risk that the Court will say a shared care relationship can’t work and the other parent may become the primary carer – and in some cases, even be given sole responsibility for major long-term decisions.

For more information on possible parenting arrangements, please see our blog post Parenting Arrangements – Care Arrangements for Children up to School Age.

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Child Custody & Preventing Access to a Child

Whilst many parents believe they are doing the right thing by withholding the child from contact with the other parent, it is often the case that this is one of the worst things a parent could do.

There are some cases where there is a need to protect a child from being physically or emotionally harmed. But if there is no risk of harm to the child, then the Court expects to see a parent who is open and keen to demonstrate that they are willing to co-parent and promote a relationship between the child and the other parent.

If you withhold a child from the other parent without a good and justifiable reason, you could find yourself losing primary care of the children for your failure to show a willingness to encourage the children’s relationship with the other parent.

Having said that, there are some circumstances where it is essential for a parent to withhold the child from access by the other parent. These are when serious situations arise in which the child is at risk of harm, be it emotional or physical, and in need of protection from the other parent.

Some instances where this is deemed necessary can include:

• The other parent is violent towards the child to excess (and by this we do not mean smacking)
• The other parent is taking drugs in the presence of the child
• The other parent is the victim of domestic violence and the child may be exposed to this behaviour
• There is a risk of the child being exposed or subjected to sexual abuse
• The other parent may potentially expose the child to harm
• The other parent has done or said something to make you believe that they will not return the child at the end of their visit.

If your concern for the child’s well-being is so serious to cause you to prevent access to the other parent, we strongly recommend attempting to maintain telephone contact with the child and the other parent or arranging supervised visits (if appropriate) until orders are made.

This will show the Court that you are serious about attempting to maintain a relationship between the child and the other parent, whilst maintaining the safety and well-being of the child.

Remember, withholding access to a child can have serious ramifications for you in Court proceedings so you may wish to seek legal advice as to possible alternate measures and if your actions are reasonable before denying access.

Lying About Drug Use or Alcohol

Drug and alcohol abuse is not uncommon in family law. What is also common is the frequency of parents that try to hide or deny the use of drugs or alcohol.

Many parents with a history of drug and alcohol consumption understandably believe that their use of such substances will impede upon their chances of gaining parental responsibility.

This can be the case, however, it is important to recognise that the family law courts are not as concerned about your drug or alcohol use as much as they are concerned about how your said use impacts upon your children and your ability to parent.

Taking steps to minimise substance abuse, such as counselling or rehabilitation, and making an effort to stay away from drugs and alcohol during visits with the child can show the Court that you have the ability to maintain self-control. This will improve your chances of having contact with your children.

Remember the Court is more concerned with your future ability to care for your children appropriately, rather than your past.

Splitting Up the Children

It is becoming more and more common to see blended families in today’s world. The Court will take into account the relationships between all types of siblings, including half-siblings and step-siblings, not just biological siblings.

In the instance that parents with blended families separate, it is important to give consideration to the impact on the children if they are to be split up.

People tend to focus on only the biological children of the parents and fail to accommodate for the other children involved.

Seeking to separate the children may suggest to the Court that the parent is not child-focused. The Court does not usually like to separate children unless they have no other option.

It may be wise not to ask the Court that children be separated, especially where twins are involved, and consider alternative measures before this is suggested.

However, on occasion, the Court may reach a decision that the best option to accommodate all of the children’s best interests and well-being is for them to be separated.

We recommend you seek legal advice in this regard as it applies to your particular circumstances. You may need to consider child custody mediation to find a solution that works for all involved.

Not Being Properly Prepared for Court Specialists/Experts or Coaching Children

Although it is a common part of many family law matters, people tend to underestimate the importance of family reports and the interviews conducted with all parties including the children in this process.

Many Judges rely heavily on the recommendations of the family report writer, giving great weight to the analysis of these experts and their independent opinion.

Whilst decisions aren’t always made in line with family reports, it is usual practice that the recommendations of these experts form the basis of the decision ordered by the Court.

Make no mistake – preparation for a family report interview does not involve telling the children what to say, how to act or what to report back. It is vital that you let your children speak for themselves as children will normally be quite honest or are at least bad liars when questioned during family report interviews. It will be obvious to the report writer when a parent has tried to coach the child for the interview.

Children do not like to be made to choose one parent over the other and any manipulation by one parent in this manner will display unfavourably in the written report.

Family report writers are called on to be impartial and provide recommendations based on the best interests of the child. The Court places a high level of trust in family report writers’ observations of the parents and interactions with the children.

To prepare for a family report interview, you should practice refraining from saying anything negative about the other parent and thinking of positive things you can say about the other parent. This will help you to be more balanced and child-focused during the interview process so that you don’t bad mouth the other parent.

Remember, from the moment you speak to the family report writer or their secretary on the phone to arrange interviews, through to arriving in the reception area, interacting with your children and speaking to the other parent, right up until when you leave the interviews – everything you say and do is being watched!

For more information on this topic, please see our blog post Family Report – What to Expect.

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Allowing Children to Play Parents Off Against Each Other

When parents fail to communicate, or are competing for the affection of their children, they tend to play one parent off against the other – which then causes parents to lose their ability to co-parent effectively.

Rules and structure are vital to the growth of a child and the absence of same tends to encourage children to test the boundaries of both parents, often seeing an opportunity (such as to get an iPad, clothes or other presents) by making one – or both – parents feel guilty.

Whilst children may test the boundaries from time to time, they need their parents to make decisions for them. If you cave into your child’s demands it can lead to bad parenting decisions and increasing parental conflict.

A good way to avoid this happening is to ensure communication between parents relating to the separation is not in the presence of the child and that that negative emotion is not directly displayed in the presence of the child.

Involving Children in Adult Conflict/Legal Proceedings

As far as Judges are concerned, family law proceedings are for the involvement of the parents only and children should not be involved in any aspect of the case. A courtroom is no place for a child of the proceedings and anyone under 18 years is not permitted in the family law courtrooms without the Judge’s permission.

There are many reasons why your child should not be involved in the court proceedings, including showing your child court documents. It is considered extremely inappropriate because you are involving your child in adult issues that children should not be privy to. Your child may not be aware of various matters that may be alleged, such as a parent’s drug use, an affair or instances of poor parenting.

Children often see their parents as heroes and information that may be exchanged through family law proceedings is not something your child needs to know. You may hinder a child’s view of the other parent, or even their view of you in some cases and undermine the relationship between the child and parent.

If deemed necessary, the appropriate way to include a child’s wishes is through arranging a family report.

Not Putting the Children’s Best Interests Ahead of Your Own Decision Making

Understandably, people can often become completely consumed by their separation, but when parties are completely entrenched in conflict it often leads to them focusing on their own interests and the negative things about the other parent, over and above what is best for their children.

A common example of this is living arrangements. For example, wanting to live somewhere that is close to work, wanting the children to live with you to minimise child support, or not agreeing to the other parent’s parenting proposal because you don’t want them to dictate when you see the children.

We often see situations where parties’ own agendas are tried to be portrayed as if it is in the interests of the children. The Court sees this time and time again and can easily identify when parents aren’t being child-focused.

Before you make a decision that concerns your child, it is best practice to ask yourself if what you are about to do is truly in the best interests of your child, or if you are, in fact, getting something out of it. If the answer is no, then it should be avoided as the Court will likely see it as you are putting your needs ahead of your child.

The ultimate decision of the Court will always reflect the best interests of the children under child custody laws Australia. Whilst Judges will investigate the many factors involved in determining their decision, they are human, so they will still be influenced by their own opinions. This means it is incredibly important to act in a way that will not leave them questioning your judgement

If you aren’t sure you’re doing the right thing, it’s important to get legal advice. Our family lawyers are always happy to have a chat with you – call us today.

If there has been any form of domestic violence in a relationship, it’s not unusual to see applications for a Domestic Violence/Protection Order (DVO), usually with the objective to try to gain an advantage in the family law proceedings. This is often practised in family law disputes involving children.

It is extremely concerning as to the increase in DVOs sought by parties in the midst of family law disputes that are without merit. Yet, a DVO is made, often due to a party consenting to the DVO to avoid dealing with the domestic violence court proceedings, or due to facts or incidents regarding domestic violence being exaggerated, falsified or misrepresented.  It undermines the court system and those who are in genuine need of a DVO – which has historically been an excellent resource for cases concerning family violence.

It is absolutely crucial that if a DVO is sought against you that you know your legal rights and the options you can take to appropriately respond.

What Options Do I Have as a Respondent to a DVO Application?

There are four different courses of action you can take as a Respondent to a DVO:

1. Consent to a DVO being made against you, accepting the allegations;
2. Consent to a DVO being made against you on a “without admissions” basis, meaning you don’t accept the allegations;
3. Negotiate an undertaking being signed in exchange that the DVO application be withdrawn/dismissed; or
4. Contest the DVO application and proceed to a Trial to be determined by a Judge.

Sounds Good – But What Does This Actually Mean?

Consent to the Domestic Violence Order

As the respondent, if you simply consent to the DVO, you are accepting the claims made by the applicant and allegations of domestic violence.

If the DVO is made by consent on this basis, the Court is not required to make any findings or determinations as to the accuracy of the alleged facts or whether the grounds for making the DVO are satisfied.

The facts as set out by the applicant may involve serious allegations of domestic violence against you by the applicant and your children – which could adversely affect the parenting arrangements likely to be ordered by the Court.

In some cases, this can even result in your criminal prosecution.

Consent Without Admission

Another option as a respondent is to consent without admission to a DVO being made.

This means you are consenting to the DVO being made against you, however you do not accept any of the allegations or facts as stated by the applicant to be true.

You may choose this option to avoid a lengthy and costly domestic violence court case.  It is often regarded as a ‘quick fix’ option as both parties will gain some satisfaction from the outcome.

The applicant will have successfully taken out the DVO, and, as the respondent, you have not admitted to any of the allegations made against you.

However, if you fail to appear in Court after having been served with a DVO application, the Court may make a DVO against you in your absence.  This will not be on a “without admission” basis and can result in serious ramifications against you – and adversely impact on future parenting arrangements.

Whether you consent to a DVO being made against you, either on a “with or without admission” basis, once the DVO is made, the terms are in force immediately and you will either receive a copy of the DVO at Court or in the mail.

Negotiating an Undertaking

A DVO application may be withdrawn only by the party who filed it – either the applicant themselves or the police, if they filed the application on behalf of the applicant.

Another option to resolve domestic violence proceedings is that the applicant may withdraw the DVO application on the grounds that you, as the respondent, agree to sign an Undertaking.  An Undertaking is not a Court Order, but rather a signed document (although in some circumstances may be accepted by the Court as an oral Undertaking) which sets out your “promise” to abide by certain conditions and usually reflects that you will be of good behaviour and not commit an act of domestic violence.

The two essential differences between an Undertaking and a DVO are:

1. An Undertaking cannot be criminally enforced. If breached, it will not be considered a criminal offence. Whereas if a DVO is breached, it is considered a criminal offence and you may be charged by the police.  Although an Undertaking cannot be criminally enforced, it can still be used in Court as evidence at a later date; and
2. When commencing family court proceedings, the Initiating Application form requires a copy of all previous Undertakings and DVOs.  Although the Court requires an Undertaking to be provided, it is not a factor that must be considered when deciding the parenting arrangements of children as opposed to a DVO  – which the Court is required to consider when determining the children’s best interests.

An Undertaking provides parties with a chance to resolve the issues at an early stage, without the emotional and financial costs to both parties of proceeding to a Trial.

Contesting a Protection Order (DVO)

If you completely dispute the allegations made in the DVO application and wish to fight a DVO being made against you, then you may want to look at contesting a protection order and seek the matter be set down for a Trial.

This will mean both parties will be required to file affidavits, give evidence and be cross-examined in the witness box at the hearing of the Trial.

Domestic Violence Court Proceedings

A Trial means the matter will be determined by a Judge, who will make findings about the facts and alleged domestic violence based on the affidavits and evidence given by the parties in the witness box. The Court will make a decision as to whether a DVO is ‘necessary and desirable’, considering the relevant factors under the Domestic and Family Violence Protection Act 2012.

Legal advice should be sought as to your prospects and the process involved prior to proceeding to a Trial. Court appearances can be a very costly, time-consuming and take an emotional toll on parties, particularly during the process of giving evidence and being cross-examined at Trial.

The Court processes, laws and regulations in place for domestic violence provide the applicant with a more ‘user-friendly’, quicker and easier process. But this can create problems for respondents where applications have been filed that are without merit, vexatious or malicious, or sought for an alterior motive such as to gain an advantage in family law proceedings.

It is critical if you are a respondent to a DVO application that you obtain legal advice as soon as you are served with the application, to ensure you are taking the right steps from the outset for your individual circumstances.

The legal advisor should outline your available options and provide detailed advices as to how the DVO could impact on you in family law matters, including property disputes and future parenting arrangements, as well as the potential impact on the relationship with your children.

You should obtain advice as to the terms of the DVO sought and how the conditions and restrictions may affect you in the context of your family. You should also seek advice as to the potential to breach any conditions which may lead to charges being laid and criminal ramifications.

If you have been served with a DVO, our lawyers would be happy to have a chat with you. Give us a call today.

When we look at the ‘father’s rights’ in parenting matters, the important thing to understand is that there is no such thing as men’s rights vs women’s rights under the Family Law Act 1975.

The only rights that the Court is legally obliged to consider is that of the child.

The Family Law Act states that “a child has a right to be known and cared for by both parents.” This means that the Court isn’t so much concerned about the sex of the parent, but rather the child’s need to spend time with each parent as much as is reasonably possible.

Given that you’ve ended up on this page, you’ve probably heard or been subjected to the sentiment that fathers are only allowed to see their children every second weekend. At one point in time, this was probably the case, but in recent years – and especially with recent Court reforms – it is common for the Court to understand the importance of the child having an ongoing and meaningful relationship with both parents. Every second weekend dads are assuredly becoming a historical ideology and old way of thinking in the Family Court.

So Does This Mean That Fathers Are Entitled to Shared Care?

There is no right answer to this question without consideration to the child’s individual circumstances.

The short answer is that the law states that as long as there is no risk of harm to the child then the Court MUST consider whether shared care is a viable option.

What Do You Mean by ‘Risk of Harm’?

The meaning of ‘harm’ under the Family Law Act is broad. Harm can include, but is not limited to, physical or sexual harm, drug use or alcohol abuse, emotional or psychological harm as a result of exposure to domestic violence, abuse, threats or denigration of a parent or family member.

So long as none of these issues are present, the Court must consider the suitability of shared care.

Risk of harm is not isolated to the mother or the father. The gender of the parent is irrelevant in assessing whether a child is at risk of harm in a parent’s care. If you have concerns about risk of harm to your child in the care of the mother, don’t delay getting legal advice about your options. The longer you leave the child in a situation where they may be at risk of harm, the lesser the weight the Court is likely to give to those risks in the sense that nothing has been done by you or any authority to assess the risk or protect the child from harm.

Before we move on, it is important to note that the Court must only consider shared care – it has no obligation to make an order for this.

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When Would Shared Care Not Be Suitable?

When determining whether shared custody may be appropriate for a child, there are many considerations for the Court.

Amongst those many considerations, Judges will always have regard to the best interests of the child, the communication between parents, the practicality of shared-care and the ability of both parents to implement any orders made.

Let’s look at these considerations one by one:

Communication Between Parents

If the parents cannot communicate effectively about the care and well-being of the child, the Court will likely not make an order for shared custody. That’s not to say you have to high-five each other at every changeover or exclusively agree on everything, the Court merely seeks to ensure that for the most part communication between the parents exists with limited conflict.

Communication can be as weird and wonderful as you make it – whatever works for you.  This can be through email, text message, communication books, online forums or as wacky as smoke signals. Provided the communication is constructive and productive without insult or offence, communication can look however you want it to.

Even if one parent’s communication is civil and the other is hostile, the Court will still be reluctant to issue an order for shared custody as there may still be an impact on the child’s life. Where this is the case, the Court is likely to Order one or both parents to participate in some form of co-parenting education – such as a post-separation parenting course or parenting orders program.

Practical Issues

Distance – if the parents live far away from each other, a shared custody arrangement may not be suitable as it could lead to difficulties with the child getting to school, travel time between households and how often the child will need to move around.

The further away the parents live from each other, the less likely shared care will be appropriate.

Availability – If one parent works a full-time schedule and the other parent is available to care for the child during the day, the Court will likely favour parental care over a daycare centre or care of a third-party provider that is not a part of the child’s extended family.

This is not to say that daycare is inappropriate, but if there is a family support network available to help care for the child then this will likely be given priority.

For fathers wanting to gain shared custody of their child, it is wise to consider their current living situation and work commitments.

The Child’s Age and Needs

This should come as no surprise to a parent, but the child’s age and corresponding needs are a huge factor in whether shared custody will be appropriate.

For example, if the child is a newborn that is still breast-fed, it is almost a certainty that the Court will deem shared care impractical and not in the best interests of the child for the foreseeable future.

Young children thrive with predictability and stability. Your newborn, toddler and kindergartener are unlikely to cope in an equal care arrangement (of course, this is subject to any existing arrangements).

While every Judge is different and exercises his or her discretion in the manner that they see fit (provided it is consistent with the law), the standard rule is that newborns up to around schooling age (i.e. Prep) require the care and attention of a primary caregiver.

That being said, we have seen shared care arrangements start as young as 2 years of age. Again, this depends on the circumstances surrounding the child’s age and stage of development, which are hugely relevant when it comes to assessing whether shared care is appropriate.

So What Does This All Mean?

It is necessary to keep at the front of your mind that the decisions reached by the Court are made to favour the child’s best interests – ensuring their physical, psychological and emotional needs are being met. This will always be the case.

It is important for the child to have as much time with both parents as is reasonable, noting that where shared custody isn’t possible, consideration must be given to the child having significant and substantial time with the other parent.

Depending upon the impact on the child, the Court may order that time is to increase as the child gets older. That is, periodically increasing the child’s time with the other parent ending in an equal care arrangement or thereabouts. Social science and expert opinion suggests that children of schooling age are more likely to cope, and even thrive, in an equal care arrangement.

The factors raised above lead to the important message that the mothers don’t automatically ‘get’ the child – but fathers need to be accommodating and maintain open lines of communication with the mother, spending as much time with the children as possible.

If the mother is withholding access to the child, then don’t delay – seek expert legal advice as to your strategies and your next best steps moving forward. More often than not, you are not getting the appropriate amount of time with the child and this should be rectified to ensure your child has a relationship with you and your loved ones.

Child Support Lawyers for Fathers

Our family lawyers are friendly and knowledgeable where it comes to fathers seeking help with their children and are always happy to have a conversation with you. Give us a call today.