Category: Family & Divorce

Parenting Orders

What is Parenting Order? 

A Parenting Order is an order made by the Family Law Courts (the Family Court of Australia or the Federal Circuit Court) in relation to children’s issues. Parenting Orders can be made either by agreement (a “consent order”), or by the Court where there is a dispute between the parties. The Court’s primary consideration when making a Parenting Order is the best interests of the child.  

What are Parenting Orders about? 

Parenting Orders most commonly address the following issues: 

  1. Who is to be responsible for making important decisions about the care, welfare and development of a child; 
  2. Who a child is to live with; 
  3. When and how often a child is to spend time with the parent they do not primarily live with; 
  4. The communication a child is to have with his or her parents and other family members; 
  5. Any other aspect of the care, welfare or development of a child. 

Every case is different and has its own set of facts and circumstances. Parenting Orders will therefore often address several other issues specific to a particular case. 

Who can apply for parenting orders? 

Anyone who is concerned with the care, welfare or development of a child is able to make an application for Parenting Orders. They are most commonly applied for by one or both parents of a child, but sometimes grandparents might also apply. 

The child is also entitled to apply for Parenting Orders, but must have a case guardian appointed unless the Court is satisfied that the child understands the nature and possible consequences of their case and can conduct it themselves. 

Changing a Parenting Order 

Once Parenting Orders have been made, they are extremely difficult to change. The Court will only consider changing existing Parenting Orders where there has been a significant change in circumstances since the making of the original Order. 

Even where there has been a significant change in circumstances, it does not necessarily mean that the Court will change the existing Orders unless it is satisfied that it is in the best interests of the child to do so. 

Our lawyers are experienced in assisting clients with making applications for Parenting Orders. If you need help preparing your application, or changing your current one, contact Stanley & Co Lawyers on (08) 7001 6135 to speak directly with our family law experts.


Merging of Federal Courts

Currently, there are two Courts that deal with family law matters in Australia; the Federal Circuit Court of Australia and the Family Court of Australia. Whilst this separation of seemingly similar jurisdictions has been deliberate as a form of case management, many clients, and indeed legal professionals, find it to be inefficient and confusing.

In late May of 2018, the Turnbull Government announced their plans to merge the two courts into one, the Federal Circuit and Family Court of Australia. A new Family Law Appeal Division in the Federal Court would also be established to hear appeals of all family law matters coming from the new Court.
The legislation to create the new Court will, according to Attorney-General Christian Porter, be introduced to Parliament during their spring sittings, with the goal of establishing the new Court by January 2019. Whilst passing the legislation and establishing the Court in such a brief time may be doable, the exercise of actually merging these two immensely busy Courts, will be a considerably longer process.

It is still somewhat unclear how the Government intends to merge matters currently being heard by one or the other Court. At this stage, the Attorney-General has announced that the new Court will have two divisions. Division 1 will comprise the existing judges of the Family Court and deal only with family law matters. Division 2 will comprise the existing judges of the Federal Circuit Court and deal with family law matters and general federal law matters. In essence, the intention seems to be to keep the general form and structure of each court whilst amalgamating the two under one set of rules and procedures.

Ultimately, the Government’s goal with this merger is efficiency and reducing emotional and financial stress to those involved in the process. Whilst this is an admirable goal, the process of actually merging two monolithic Courts, their rules and procedures and staff could be an incredibly drawn out, and potentially expensive, method.

For more information regarding the Court process or family law matters in contact our experienced Family Lawyers at Stanley & Co. Lawyers today on (08) 7001 6135.


Private School Fees and Child Support

When the Child Support Agency (CSA) makes an assessment regarding what payments should be made from one parent to another, it takes many factors into consideration. Some of these are regarding the parents themselves, such as earning capacity, personal expenditure and relationship status, to name a few. However, they also take the children’s circumstances into account, such as their special needs or requirements.

The CSA, in its assessment, assumes that the children are attending a public school, therefore requiring little financial maintenance beyond uniforms and supplies. However, many parents choose to send their children to private schools, which incur considerably higher fees than those of public schools. Depending on the school, these fees can be considerable. At the time of separation, there may be disagreement between the parents in relation to who should pay for those private school fees, particularly where one parent is now required to make regular payments of child support to the other.

So how does this situation resolve?

If the matter were to go before court, the Court firstly considers the circumstances of the children’s attendance at such a school. If they have been attending a private school for many years, and both parents agreed, during the relationship, that the children would attend a particular private school (often evidenced by both parents’ signatures on the enrolment form), then they are likely to order that the children should continue to attend the school and that both parents ought to share the cost, provided it will not be too financially onerous on one or both parents. In the case of Evans v Evans, the Court said that child support must reflect the expectations that the child will continue to be educated at a private school, where they had been so prior to separation.

Therefore, it is the Courts position that children should continue to receive private education. For a parent paying child support and private school fees, how can this double payment be reconciled?

The CSA recognises the potential for financial burden in this scenario. It is simple for one parent to request a ‘re-assessment’ of their current circumstances, to take into account the private school fees. Generally, parents will pay 50/50 of the private school fees. However, where child support payments are occurring, the CSA can ‘credit’ up to 30% of the current child support payments, towards the school fees. This is known as a ‘non-agency’ payment. In essence, both parents will continue to pay 50% of the school fees, with the parent paying the child support having up to 30% of their child support payments retracted to account for their contribution to the school fees.

It may seem complicated, but it allows children to have a sense of continuity and normalcy, in what can be an overwhelming emotional experience for them.

If you are going through a separation and are concerned about private school fees, please call our team at Stanley & Co Lawyers on (08) 7001 6135.


Checklist: What to bring to your family matter appointment?

We understand that a family matter can be daunting and often very emotional so a little preparation can alleviate your stress. After your preliminary meeting or phone discussion with our lawyer Amra Sabou, we will send you a Retainer Agreement containing several documents that you need to read. Once the applicable documents have been filled out, a meeting will be organised to begin the process which is where preparation plays a role. Below are 6 easy check points that you can follow:  

  • Write a list of specific questions you have.  
  • Bring a pen and paper to write down any advice our lawyer will give you.  
  • Have an idea of the contribution made by each party in the relationship. 
  • Summary of your current assets and liabilities. 
  • A value of your current assets and liabilities. 
  • Copy of your superannuation balance.  

Your time spent with our lawyer should be effective and efficient so please bring as many documents as possible with you. 

If you are yet to speak to a lawyer about your family matter then it is important you obtain legal advice as soon as possible. You need to understand your entitlements and time restrictions your matter might have. Likewise, the above information can be of benefit to you so that you know what to expect for future meetings.  

Stanley & Co. Lawyers offer free initial consultations where our understanding and well experienced Family Lawyers will be able to guide you through the process.  


The Signs of Cyber-Bullying

Cyber-bullying is becoming increasingly prolific in our schools. Whilst many parents and guardians have an idea of what bullying is, many are not up-to-date in all areas of technology, and may be, understandably, totally unaware of the online abuse that their child is being subjected to. 

A researcher from the University of the Sunshine Coast, Dr Larisa McLoughlin, has attempted to give parents a starting point to recognise key areas in which cyber-bullying may occur. However, as Dr McLoughlin explains herself, as technology evolves exponentially, so too will the forms and variety of cyber-bullying. Therefore, it is important to be aware, in a general sense, of what may be happening. 

Cyber-bullying can fall into two categories; the more traditional ‘overt’ bullying, such as mockery, shaming or other direct abuse, and the more often overlooked ‘covert’ bullying, involving exclusion and indirect derogation. Both can be equally damaging to a child’s mental health. 

Where cyber-bullying is used to merely cover abusive emails or text message, it can now take many forms, including visual media such as photos or videos. These may be videos of the bullied child, shared in an attempt to embarrass or demean, or videos sent to that child in an attempt to make them feel excluded or indirectly attack them. 

Dr McLoughlin highlights 8 current ways cyber-bullying can take shape. Whilst these may not cover everything, they are a good place to start if you are concerned for your child. 

  1. Trolling: intentionally posting hurtful, usually untrue, comments solely to illicit an angry or upset response. 
  2. Flaming: multiple aggressive comments designed to hurt or demean. 
  3. Visual media: posting, sharing or messaging embarrassing, upsetting or hurtful pictures or videos. This may be done directly to the victim or to their friends/peers. 
  4. Exclusion: intentionally excluding or removing someone from a group. This may include online games, group chats or social media groups. 
  5. Catfishing: pretending to be someone else through social media profiles, with the intent of making the victim romantically interested, to either later embarrass them or potentially defraud them for financial or other gain. 
  6. Impersonation: pretending to be the victim by taking their online name or account, without permission, in order to cause damage or embarrassment. 
  7. Stalking: using social media applications to track the victim’s location or sending messages showing some form of tracking or following. 
  8. Threats of violence: these can be through text-based or image-based messages, making the victim feel physically unsafe. 

Many of these actions, such as stalking or threatening, are illegal in their own right and should be handled as such. However, even if these actions do not seem to be ‘breaking the law’, they may constitute grounds for an Intervention/Restraining Order against the bully. 

The internet is an amazing resource for knowledge and entertainment. If your child is being made to feel scared, unsafe or demeaned in this environment, there may be more you can do than turning off the computer.  

At Stanley & Co Lawyers, we can assist in applications for Intervention Orders, and negotiating with Schools and other organisations, so that your child can be protected. 


How can I protect my child from being Cyber-Bullied?

Intervention Orders against Minors 

Cyber-bullying is a genuine problem in today’s schools, and it often goes beyond the teasing or mocking associated with schoolyard bullies. It is easy for an affected child to feel helpless or ostracised from an inundation of abuse and disdain. So what can be done to prevent bullying over the internet? How do you protect a child from another child? 

An Intervention Order (“IO”) is a restraining order enforced by the court, that prohibits a person from doing certain things against another and protect that person from harm. This ‘harm’ can include: 

  • Physically injure, or intend to physically injure; 
  • Cause emotional or psychological harm; 
  • Deny a person their financial, social or personal freedoms; or 
  • Damage property. 

To achieve this, an IO can prohibit a person from being physically near the protected person, near their place of residence, work or school. It can also prevent attempts to follow or stalk, or communicate via phone, email or other messaging services. 

What many do not know about IOs is that they can be placed on anyone over the age of 14 years. This includes minors. Where a child is involved, particularly where they are the offending person, the application will be heard in the Youth Court, which holds the same power as the Magistrates Court (see Section 7 of the Youth Court Act 1993 SA). It also means that parents, or another chosen guardian such as a police officer or Court-appointed counsellor, can accompany the child to make them feel more at ease. 

The application made in the Youth Court can help to protect against ‘technology-facilitated abuse’. It can help to prevent:  

  • coercive or abusive text or other messages; 
  • the use of tracking via GPS or other capable applications;  
  • publishing or sending offensive or abusive material onto the internet, or communicating or sending abuse;  
  • material regarding the protected person to other people by way of email or messaging services; or 
  • Any ‘other’ category of technology-based abuse that is presented to the Court. 

This is considered a form of ‘non-domestic abuse’ and the Court may see fit to attempt mediation, before then imposing an intervention order. 

If you are considering this course of action, make sure to keep copies or screenshots (that include a date and time) of any relevant messages, photos or emails saved to a secure location, as well as dated and timed notes of when the incidents occur. It is also helpful to be open and cooperative with any Police that may be involved in the matter. 

Cyber-bullying should not take control of your Child’s life. If you are concerned for their safety or mental well-being, please contact the police or Stanley & Co Lawyers immediately to assist you in protecting your loved ones. 


Guide to the Family Court Process

Entering a matter in the Family Court can be a daunting task. It is often an emotionally charged time and the thought of meeting deadlines and understanding legal jargon is likely to be the last thing you want to consider. Often, the best way forward is with the aid of some friendly advice.

Structure

The Family Court has a number of Judges, each of whom have their own cases that they (generally) hear from start to finish. You can usually expect to have the same Judge hear you at first instance and last.

The running of the Court is determined by the Family Court Rules 2004, a piece of legislation that sets out what the Court can and cannot do. This in turn offers consistency and accountability.

Documents and Proceedings

Every case will begin with an Initiating Application and Affidavit, and in property or maintenance cases a Financial Statement as well. In children’s matters, a Notice of Risk will be filed. This is to show the court the position of both parties and what the projection of the case may be (i.e., consented settlement, property or parenting orders or a trial).

When an application for final orders is made, there is a fee attached. The feel will range from $330 to $445. These are payable by the applicant directly to the Court hearing the matter, upon filing of the court application. In some cases, the applicant may be eligible to have the application fee waived, depending on their circumstances.

Service of Documents

These documents must then be served upon the other party to a matter. Service is generally required by hand, by someone other than the applicant who is over 18 years old. An affidavit of service will then be provided to the Court to show that service has occurred. Service can also be accepted by legal representatives if they have been engaged.

Time Frame

Upon filing, the matter will be given a first date before a judge. Hearings are reliant upon Judges’ availabilities and those of the parties and their legal representatives. There will be a first hearing, directions hearings and eventually the trial, which could take a number of days depending on the complexity of the orders sought. This process can take weeks, months or even years. The length of time and cost involved in Court fees is why negotiation and pre-trial settlement are so heavily encouraged. If there are special circumstances, the Court may move to expediate the process and bring it before a Judge more quickly.

After all evidence and witnesses have been heard, the judge will make orders with which the parties must abide. At this stage the matter will be considered finalised. Depending on the outcome, one of the parties may be required to pay for the legal costs of the other, or the judge may order each party to cover their own costs. There will also be determinations made on financial or parenting orders depending on the nature of the application.

Most importantly, always remember that you do not have to do any of this by yourself. Our helpful and understanding lawyers, here at Stanley & Co, are well experienced in family law matters. If you, or someone you know, is going through a separation, feel free to contact our offices for a free consultation.


Same Sex Marriage Survey

Same Sex Marriage Survey

Australians are being asked by the federal government, as to whether the law should be changed to allow same-sex couples to marry.  A nationwide vote is not needed to change the law in Australia. The Turnbull government proposed a voluntary postal survey as the second-best option to fulfil its commitment not to facilitate the introduction of a same-sex marriage bill until the Australian people have had their say.

Important Dates

  • On Friday the 27th of October 2017, the ABS requests that you mail your form by this date to ensure that it will count.
  • On Tuesday the 7th of November 2017, the survey will close, meaning that if your survey is received after this, it will not be counted.
  • The following week on Wednesday the 15th of November 2017, survey results will be published on the ABS website. The Australian Statistician will publish a statement on the quality and integrity of the survey.

What happens if there’s a ‘Yes’ vote

If Australia votes in favour of same-sex marriage, Mr Turnbull has promised Parliament will vote on the issue before Christmas. This means both houses of Parliament need to vote by the 7th of December, when it rises for the year. The postal survey result is not legally binding on the Ministers of Parliament. Some ministers say they will respect the outcome of a ‘Yes’ vote in the postal survey – in their electorates, states or nationally and so will vote ‘Yes’ in Parliament. Others have said that they will vote ‘No’ regardless of what happens.

What happens if there’s a ‘No’ vote

If Australia votes against same-sex marriage, the no campaigners will claim victory and declare the matter to be settled. However, the issue will not go away. Marriage equality advocates will most likely not drop this case. There will be pressure again on the Ministers of Parliament to agitate for a free vote in the party room.

If you would like further assistance regarding information on same-sex relationships, please contact us on 08 7132 5636 to speak with one of our experienced Adelaide lawyers.


What does the Law say about revenge porn?

Revenge Porn involves the revealing of sexually explicit images or videos posted online without the subject’s consent, typically by former sexual partners. The issue is becoming increasingly common with the use of social media platforms such as Facebook, Instagram, Snapchat, and Twitter. To combat this behaviour, the Federal Government is considering implementing legislation to help stem the issue.  

In South Australia, anyone who is found using revenge porn can be charged with the following offences under the Summary Offences Act: 

  • distribution of invasive image; 
  • humiliating or degrading filming; 
  • indecent filming; and 
  • threat to distribute invasive image or image obtained from indecent filming. 

 What is an invasive image? 

An invasive image is one in which a person is shown in a private location engaged in a private act, and may include individuals in a state where they are naked and their genitals, breasts, or anal region can be seen. The test for whether or not an image is invasive is whether it falls within the reasonable standards of morality accepted by reasonable adults in the community. Of particular note: 

  • It is an offence to distribute an invasive image of another person knowing or having reason to believe that the person does not consent to the image being distributed. 
  • Even if you do not send a photo, you can be charged for threatening to send an ‘invasive’ image of someone where you mean to arouse genuine fear in the person that a photo of them will be shared. 
  • Threatening to share private images of someone can be used as a weapon of abuse and control and is seen as a form of bullying. 

Indecent filming 

It is also an offence to engage in indecent filming. Indecent filming is the filming of: 

  • another person in a state of undress; 
  • another person engaged in a private act; and/or 
  • another person’s private region. 

It is also an offence to distribute an image obtained by indecent filming. 

 The maximum penalty for the above offences range from a fine of $5,000 – $20,000, and up to 2 – 4 years imprisonment, depending on whether the indecent image/s or film involve a minor. 

 If you require legal assistance, please contact us on 08 7132 5636 to seek advice from our experienced lawyers. 

 

 

 

 

 

 

 

 

 

 

 

 


Am I Classified as Being in a De Facto Relationship?

Instituting property settlement proceedings in the Family Court either means that you are in a married relationship or in a de facto relationship. Often unmarried couples are not even sure if they are classified as being in a de facto relationship. In the event of a relationship breakdown, and with parties wanting to know if the other is eligible for assets in property division, a de facto relationship must be present.

The Family Law Act depicts a de facto relationship to be a couple, either of the same or opposite sex and having a relationship, and:

  1. The parties are not legally married to each other; and
  2. The parties are not related by family; and
  3. The parties live together on a genuine domestic basis

Determining a couple living together on a ‘genuine domestic basis’, certain circumstances of the relationship will be considered by the court:

  1. Duration of their relationship;
  2. Nature and extent of their common residence;
  3. If a sexual relationship exists;
  4. The degree of financial dependence or independence;
  5. The ownership, use and acquisition of their property;
  6. Their degree of mutual commitment to a shared life;
  7. If the relationship has been registered in a state requiring this (not required in South Australia);
  8. The care and support of the children; and
  9. The reputation and public aspects of their relationship.

The court will consider a relationship of 2 years (either a straight two years, or an on-and-off relationship totalling two years) to be a de facto relationship. A child of the relationship will also deem it to be de facto, as will substantial financial or non-financial contributions to the other party. If the relationship has indeed been registered in Queensland, Victoria, New South Wales, Tasmania or the ACT, a clear de facto relationship exists.

It is important to recognise the possibility and the eventuation of a de facto relationship before considering taking legal proceedings. Obtaining legal advice prior to entering into a de facto relationship can be helpful in assisting in the protection of assets. Conversely, seeking legal advice in the breakdown of a de facto relationship is necessary is dividing the property accordingly. We are experts in practicing family law, for both married and de facto couples. Call our experienced Adelaide lawyers to discuss your concerns and options on 08 7132 5636.


I want to separate from my partner. Where do I start?

A little bit of preparation in this can save you lots of headache down the track. Come and see us for a confidential no obligation chat so we can help you prepare for your separation. In the meantime, here are some tips:

  1. Photocopy all of yours and your ex partner’s financial documents and put them in a secure location (not in your home or motor vehicle).
  2. Make a list of all the household contents (or even better, take photos).
  3. Contact your bank or financial institution in writing to stop joint funds being removed or liabilities increased.
  4. If you have a Power of Attorney, ensure it is revoked, and have a new one drafted.
  5. Consider whether your nominated death beneficiary for your superannuation entitlements is appropriate.
  6. Look at your Will and consider if it is still what is appropriate and if you do not have a Will have one drafted.
  7. If you have children, contact the Child Support Agency and find out how much is to be paid or is payable.
  8. Do title searches on your properties. If your home is not in your name or is in joint names, ensure you place caveats over the properties.
  9. If there has been family violence in the relationship you may need to seek an Intervention Order.
  10. Start a diary which keeps track of time your partner has with the children and any adverse behaviour he/she displays.

Give us a call now on 08 7132 5636 to speak directly with a family lawyer in Adelaide.


I have come to an agreement with my partner about the division of property. What now?

Our advice is that you must have a legally binding agreement in place before any significant property is exchanged. With a legally binding agreement in place, both parties can be certain of the agreed position and no party can come back for a greater share of the pie.

The legally binding agreement that we draft is called a Consent Order. It is approved by the court and is very good at protecting both parties from any further claims on one another. The approximate cost of a Consent Order is $2,000.00. Once we learn more about your situation, we can give you a fixed price.

Give us a call now on 08 7132 5636 to speak directly with a lawyer.