Denial

Is this actually happening?

Denial is generally the first stage of the grieving process and is usually accompanied by feelings of shock, resignation, indecision and withdrawal. These feelings tend to come in the early stages of a separation as you try to adapt to such a significant change. Denial is said to be a human defence mechanism which is used to subconsciously protect ourselves from harm. In certain circumstances, these feelings are intensified if one partner is unaware of the extent of the relationship problems and therefore the separation has come as a complete shock to them.

Anger

How dare he!? She never worked and only used me for my money!

Anger usually comes after the initial feelings of denial and shock have worn off. Feelings of anger are often supplemented with feelings of resentment and give rise to hostile actions and/or thoughts and behaviours, particularly towards your former spouse. These types of feelings and behaviours can also extend to friends, in-laws, your children and even yourself. This can be the most confusing and intense part of the grieving process. Others may also express anger towards you because they are frustrated by your changed behaviour. Professional Counselling can help during this time.

Bargaining

What if I changed? I promise I’ll be better.

The next step in the grieving process includes thoughts of “what if?” and tends to leave you feeling at fault and thinking about all of the things that you could have – or should have – done differently in the relationship. This phase can often see people desperately trying to rekindle with their former spouse or anxiously looking to start a new relationship in order to “move on”. Thoughts can often be frantic and impulsive during this time and can drastically impact upon your decision making ability.

Depression

I don’t know if I can do this anymore.

After the feelings of denial, anger and bargaining subside, overwhelming feelings of despair and anguish can often set in. This stage of the grieving process leaves you feeling hopeless and detached from the world. You might have trouble sleeping and you may become frustrated easily or find yourself feeling extremely irritable for no apparent reason. More often than not people will also experience episodes of fatigue and might find themselves unmotivated and disinterested in life. This is an extremely difficult phase of the grieving process and medical assistance together with counselling can be useful at this time.

Acceptance

Let’s look to the future…

Acceptance is the final stage of the grieving process and will enable you to start moving forward with your life. You will regain your sense of self-worth and purpose during this time. You may start feeling hopeful again and will find yourself planning for the future.

It can take weeks, months or even years to move through the five stages of grief after a breakup – everyone is different. The main thing to remember is that all of these feelings are normal and will take time to process. If you do find yourself stuck however it might be helpful to speak to a trained professional (including your Family Lawyer) so they can assist you to work through any issues that may be holding you back.

For more information on separation, or other family law matters, please contact our office for a free initial consultation.

When deciding who gets what from the property settlement, there is a four-step process that is adopted under the Family Law Act.

Step 1

The first step is to identify and value all property of the relationship (including debts).  This property can include things you got before the relationship commenced or even after the relationship has ended.

Step 2

The second step is to take into account what each person has given to the relationship (contributions) including (but not limited to) earnings, savings, gifts, inheritances, property owned before the relationship, improvements to property and contributions as a homemaker.

Step 3

The third step is to then consider the other factors set out in the law, including (but not limited to):

• How much money each person could earn in the future;
• The age and health of each person;
• The responsibility for looking after other people; and
• The length of the relationship.

Step 4

The final (fourth) step is to consider what is ‘just and equitable’ (fair) to both parties.  To decide what a fair division of property is, the law looks at all of the things mentioned above.  The law does not look at who left the relationship.

Whilst property settlement is just one part of the family law process, we hope this information helps to dispel any myths in relation to the assumed division.

For more information on property settlement, divorce or other family matters, please contact our office for a free initial consultation.

When are Prenups most appropriate?

Generally speaking, in those cases where:

• One person has much more property than the other when the relationship begins;
• One person is, or may later become, entitled to an inheritance or gift;
• You are moving into a second or subsequent relationship where children from former relationships might need to be protected financially, or
• You both simply want to make sure the terms of any property division are agreed up front and will not end up the subject of protracted and invariably costly litigation.

Are Prenuptial Agreements Binding?

These agreements are not binding unless the formal requirements under the Australian Family Law Act are met.

The Agreement will only be binding if the following requirements are satisfied:

• The agreement is signed by all parties;
• Before signing the agreement, each party was provided with independent legal advice about the effect of the agreement on the rights of that party and about the advantages and disadvantages to the party making the agreement;
• Before signing the agreement, each party was provided with a signed statement by his or her respective lawyer certifying that the advice referred to above was provided to that party;
• A copy of the statement referred to in 3 above was provided to the other party;
• The agreement has not been terminated and/or has not been set aside by a Court.

Couples may choose to enter into an informal agreement (which can be written or verbal), but any such agreement is not legally binding (enforceable) by a Court.

Such agreements can however be taken into account by a Court if a judicial determination is required to be made.

Can you cancel or change an agreement?

In certain circumstances, either party has the right to challenge a legally binding agreement.
Couples can agree to vary the terms of – or even terminate – an agreement. If your partner does not agree, you must prove:

• There was a fraud (dishonesty) including non-disclosure of a material matter at the time the Agreement was made;
• The agreement is not practical to carry out (not merely inconvenient);
• The other person has acted in an unethical or unfair way. (For example, a party has entered into the agreement for the purposes of attempting to defraud or defeat a creditor or creditors).

What can a Prenuptial Agreement cover?

• How a couple’s assets and money will be divided in the event of a future separation. This also includes assets such as a family business, a trust, investments, an entitlement to an inheritance, superannuation or even a pension entitlement. It also includes debts and liabilities of the relationship such as an obligation under a contract.
• The financial support (maintenance) of either party (during the marriage and/or after divorce), and
• Any other incidental issues particular to you and your relationship.

Legal advice

It is highly recommended that you obtain legal advice from a lawyer who has sufficient experience and expertise to advise about Binding Financial Agreements if you:

• Are considering signing a financial agreement (or consent order); or
• Seek to change or cancel an existing financial agreement or consent order.

The failure of a party to obtain the correct and independent legal advice can (in certain circumstances) give rise to a court setting aside the agreement.

More information

For more information on prenuptial agreements, divorce or other family matters, please contact our senior family lawyer, Mark Orchard, for a free initial consultation.
Phone: 07 4639 0358
Email: morchard@cp484.ezyreg.com

The considerations for deciding a parenting arrangement

Under section 60CC(3)(a) of the Family Law Act, a child’s wishes are one of 16 factors the court must consider when deciding what parenting arrangement is in a child’s best interest.  In and of itself, a child’s wish may not be definitively determinative of the dispute.  Interestingly, a child’s wish is not one of the primary considerations the court must take into account when deciding what is in the child’s best interest.

The two primary considerations are:

• The benefit of a child having a meaningful relationship with both of the child’s parents; and
• The need to protect the child from physical or psychological harm.

Developmentally appropriate concerns like homesickness will not usually cause a Court to terminate overnight time with a non – residential parent of a school aged child.

The court will decide how much weight it places on the child’s view based on an assessment of:

• The child’s maturity;
• His/her level of understanding;
• Whether the wish is well informed; and
• Whether or not the child has been influenced (usually by one or other of the parents).

For example, if a seven-year-old is assessed as exhibiting high levels of maturity and understanding of the conflict between her parents then the court may place considerable weight on her views.  Equally, if a 14-year-old expresses a wish to move overseas to live with his Father because he buys him whatever he wants, but the Mother has previously been the primary carer, a court may assess the child as lacking maturity or as having been influenced by factors not in the child’s best interest, and give little weight to his wishes.

In another example, an older child may be at an age where their resistance to spending overnight time with a parent is given a great deal of weight but the wishes of a younger sibling who is also resistant, will not be so persuasive. The older child would probably be permitted to stay with the preferred parent but the younger child would not.

Who assesses the child’s maturity and level of understanding?

The most common way for a child to express their view is through an interview by a court consultant or a privately-funded family report writer who is usually a trained counsellor, therapist or psychologist.

The family consultant or family report writer interviews and observes the parents, the children and any other people living in the same household as the children, such as step-parents and step-siblings.  During the interview, the family report writer will usually make enquiry as to the child’s wishes and ask questions to assess their maturity and level of understanding.  In some circumstances, due to the children’s ages or other factors, a family report writer may decide not to ask the child for their wishes.  A family report is then prepared for the judge containing recommendations about what future parenting arrangements the judge should consider.  The judge will usually follow the recommendations outlined in the family report.

It is often the case that a child prefers not to give their opinion as they are afraid of hurting the feelings of one or both parents.  Additionally, some children find the family report process intimidating and do not feel comfortable expressing their views to a stranger.

There is no ‘Magic Age’

There is no fixed age when a child can decide on where they should live in a parenting dispute.  Instead their wishes are one of many factors a court will consider in reaching a decision.  There inevitably comes a time when a child is able to ‘vote with their feet’ (so to speak), and place themselves physically where they want to be. That time is not attached to any specific age, but is rather the product of maturity and a level of independence.

The Court will be reluctant to separate siblings who are usually strongly attached to one another, however the Court will rarely seek to force a mature and insightful child to spend time with a parent they refuse to see.

We believe that parenting disputes are best resolved outside of court and to what we can to encourage our clients to only apply to the court when all other options have been exhausted.  If you are unable to resolve your parenting dispute, we encourage you to speak to us about the various out-of-court dispute resolution options available.  A number of these options can involve your children, such as child inclusive mediation and counselling.

Should you require further advice in relation to resolving a parenting dispute or any other family law matter, please contact our Senior Family Lawyer, Mark Orchard.

In assessing whether you are living together on a genuine domestic basis, the Court may look to

• The duration of the relationship;
• The nature and extent of common residence;
• Whether a sexual relationship exists;
• The degree of financial dependence or interdependence and arrangements for financial support;
• The ownership, use and acquisition of property;
• The degree of mutual commitment to a shared life;
• Whether the relationship is or was registered under a prescribed law of a State/Territory;
• Arrangements for the care and support of children; and
• The reputation and public aspects of the relationship.

No one factor should be considered more important than any other. However, it would be expected that the more factors that can be proved would help to determine that there was a de facto relationship and, conversely, the more factors that can be disproved would help establish that there was not.

Similarly, there are no minimum or maximum amounts that can be attributed to any factor, such as a minimum number of nights per week that might indicate if a ‘common residence’ has been maintained.

In 2009, the Federal Government made amendments to the Family Law Act that gave de facto couples – including same-sex couples – almost the same rights and obligations as married couples.

The Family Law Act recognises that a party could even be in multiple de facto relationships, and that even a person who is married could still be a party to de facto property proceedings.

Unlike marriage, de facto status is not entirely portable. While it is recognised in all states of Australia, Canada and New Zealand, it is not recognised in the USA and many other countries.

More information

Find out more about our Family Law services, or contact our experienced family lawyer, Mark Orchard, for a free initial consultation.

Phone: 07 4639 0358
Email: morchard@cp484.ezyreg.com

There are a number of considerations that will impact both the separating couple’s property settlement and the business:

1. The need to continue running the business while working out the terms of a property settlement can have a major impact on the performance of a business. In some cases, the levels of conflict between the spouses can be so high that this spills over into the workplace, affecting staff and customers.
2. If the couple cannot cooperate and agree on how the business should be run pending property settlement, the business may end up suffering extreme cash flow problems or damage to its reputation. If the parties plan to co-own the business, it may be necessary to delineate very specifically, in writing, each party’s respective duties and responsibilities.
3. One spouse may seek to exclude the other from being involved in the business, leaving them without access to an income or information about the performance of the business. In the most extreme circumstances a forensic accountant may need to be hired to thoroughly analyse the business to ensure it is not being inappropriately run down or to determine that money is not being hidden.
4. If the business is to be retained by one party who “buys out” the other party, then the parties will need to know the value of the business. Both parties should be wary of simply looking at the value on the balance sheet. There are many different ways a business can be valued, and sometimes a forensic accountant or an appraiser might need to help with the valuation process.

To minimise the financial fallout in the event of a breakup it is desirable to have a pre-nuptial agreement. It may seem unromantic at the time, but the best protection is to plan for the possibility of a divorce before the situation arises. If you started and built the business prior to your marriage, a prenuptial agreement can specify how the business will be treated upon divorce.

If you take the proper steps, the end of a marriage does not have to mean the end of a business. Many couples are able to negotiate a fair settlement of their assets, including their business. In these cases, appropriate advice should be taken as to making this settlement final and binding, and taking into account what would be a tax effective outcome.

While owning a business can complicate the division of your assets, an experienced family and divorce lawyer will be able to guide you through this often very complicated process.

More information

Our Toowoomba-based family law team has more than 30 years of experience in resolving family law matters, and has a strong reputation for a solution-focused approach to all cases involving married and de facto couples.

Whether you are separated, divorced, or thinking about separating, we understand the impact that family disputes can have on your life, and appreciate that the legal process can be overwhelming during these difficult times.  With our expertise in negotiation, mediation, and, where required, litigation and advocacy, we will provide clear and compassionate advice so that you can make fully informed choices.

Contact us for a free initial consultation* (conditions apply) with our senior family lawyer:

Mark Orchard
Phone: 07 4639 0358
Email:  morchard@cp484.ezyreg.com

Separation

Separation is a major step. Many people claim they felt the worst they have ever felt in their life around the time they separated, often feeling sad and depressed.

If you separate, you and your former partner will need to make some immediate decisions about practical issues concerning your children and your assets. You may not be able to agree on all these things at the time of separation, but it can greatly help you and your family if you try to reach a temporary agreement. Some of the things you need to consider are:

• Where your children will live and who will take care of them
• How you and your former partner will support yourselves and your children
• What, how and when you will tell the children, other family members and friends about the separation
• Who will pay outstanding bills or debts
• Who will stay in the house
• How will the rent or mortgage be paid
• What will happen to any joint bank, building society or credit union accounts
• What will happen to the house, car, furniture and other property

Where to get help

1.    Talk to friends and family.

Close friends and family are a good place to start to help you sort out your feelings.

2.    See your GP

If you are concerned about mental health problems in yourself or another, are overwhelmed by anxiety or feel depressed, it is important that you consult your family doctor.

3.    Arrange mediation

Mediation may help you to sort out any problems you have about settling your arrangements if you decide to separate.  It can facilitate quick, inexpensive and amicable settlement of contentious issues. For parenting issues, mediation can be tailored to a specific situation.

4.    Attend counselling

For joint parenting counselling, it may be worthwhile to consult with a psychologist who is experienced in family law issues.  You may also benefit from attending a counsellor alone, to help you through the emotional turmoil, and to give you strategies for communicating with your partner.

5.    Consult a lawyer

It is a good idea to get legal advice to help you understand your legal rights and responsibilities.   Your lawyer can help you obtain a Family Court Order regarding property and parenting matters if you are unable to reach agreement.  The court process involves compulsory mediation, and over 95% of cases in the court system settle without the need for a Trial.

6.    Check out online information and resources

Legal information is widely available on the Internet and in public libraries.

• through Relationships Australia
• Through Centacare

7.    Call a helpline like Lifeline or Kids Helpline

More information

For more information on divorce or other family matters, and to understand your rights and responsibilities before applying for a divorce, contact our experienced family lawyer, Mark Orchard, for a free initial consultation.

Phone:  07 4639 0358
Email: morchard@cp484.ezyreg.com

Consider these situations

• An elderly couple sell their family home and invest the proceeds of sale in the construction of a granny flat at the back of a property owned by their daughter and her family.  Down the track, the daughter and her husband divorce, requiring the property to be sold.
• An elderly couple give money to their son to construct a granny flat at the back of his and this wife’s property.  The son passes away, leaving his interest in the property to his surviving wife.
• An elderly mother gives the proceeds from the sale of home to her daughter, so that she can build a granny flat in the home where she lives with her husband and children. The relationship between the elderly mother and her daughter breaks down.

In all of these situations, what return will the elderly parents receive? Only the cash contribution they made, or will they receive the benefit of any appreciated value because of market forces? Could a situation even arise where all of the money they contributed is put at risk?

What is a granny flat?

A granny flat is typically a self-contained unit within (or attached to) another home, often with the intent that the elderly resident can be close to family and help if required. Ideally, there needs to be a transfer of assets to the owner of the property in exchange for a life tenancy or interest in the property.

A granny flat arrangement does not necessarily require a separate residence – it just needs to be owned by someone else and you need to have established a “granny flat interest” (that is, a lifetime right to reside in someone else’s property arising from the exchange of assets or money).

It is important to distinguish a granny flat interest from an outright gift – there are various restrictions for gifting to family members (no more than $10,000 in a year unless they are given a granny flat interest).

Granny flat agreements

The trust that usually exists in family relationships often leads to arrangements between family members being made on an informal basis.  Sometimes, however, memories of the arrangement can be vague and disputes can occur, especially in relation to financial contributions when it is unclear whether the contribution is a gift or not, and when unexpected issues (such as those situations identified above) arise.

It is therefore recommended that all parties involved confirm the granny flat arrangement in writing, paying particular attention to possible scenarios that may arise, such as:

• What if we end up not getting along?
• What if my care needs change?
• If I need to go into a nursing home, what will the financial arrangement be?
• Am I sure that this is the best thing for me now and into the future?
• What if my family member’s marriage or partnership breaks down?
• What if the family is forced (or chooses) to relocate?
• Will I have my name on the certificate of title?

In documenting a granny flat agreement, it is recommended that you seek independent legal and financial advice.

Elder Law Disputes – what to do?

Getting legal advice as soon as a dispute arises is important. After seeking legal advice, mediation may be required to help resolve matters.

If court action is needed, it will be helpful if there is a good record of transactions, conversations, agreements, so make sure all documents are kept in a safe place.

More information

Matters involving family law or aged rights can be complex. If you do have an issue or concern that requires attention, or for more information on this topic, contact:

Mark Orchard
Family Lawyer
Phone:  07 4639 0358
Email:  morchard@cp484.ezyreg.com

Catherine Cheek
Aged Rights Lawyer
Phone:  07 4639 0357
Email: ccheek@cp484.ezyreg.com

Parenting Plan

The law encourages parents and other people interested in a child’s welfare to agree on arrangements, including where they’ll live, how they’ll be financially supported and what their relationship with family members will be, without going to court. Court proceedings in relation to children should be regarded as the last resort.

If an agreement can be reached on the arrangements you wish to make for your child/ren after you separate, it will cost you less in time, money and emotional distress, and be easier on your child/ren. An agreement can be made in the form of a verbal agreement (nothing in writing) or a written agreement, known as a parenting plan.

Parenting plans are not legally enforceable but a court will consider the terms of a parenting plan if it should become necessary to apply for orders later.

You don’t have to go to court to formalise the parenting plan. However, you can have a court turn your parenting plan into a consent order if you wish (see below).

Consent Orders

Courts make orders about parental responsibilities only if the parents cannot agree between themselves about the arrangements for their child/ren.  Courts can also approve and make consent orders to reflect an agreement reached between parties at any time during the court process.

A parenting order sets out the responsibilities of parents and other carers, and may cover where the children live, who the children spend time and communicate with and any other issues, such as schooling or medical treatment.  If two or more people share parental responsibility for long-term decisions, a parenting order can include how the parents will communicate with each other about decisions to be made in respect of the child.

A court considers many factors when deciding what types of arrangements are in a child’s best interests, such as:

• Protection from physical or psychological harm
• The benefit of having both parents’ meaningful involvement in their life
• Whether the parents should have ‘equal shared parental responsibility’ for long-term decisions about a child (unless child abuse, family violence or other issues are a factor)
• Each parent’s attitude to their parenting responsibilities, such as paying child support or turning up for their time with the child.

Where shared parental responsibility is ordered, the court must then consider whether it is appropriate to make an order for shared time.  An order for shared time does not necessarily mean week on week off time.  The manner in which shared time may be ordered will depend upon the age of the child and the circumstances of each particular case.  In many cases where the child is young, shared time might be ordered in terms of a 3 days on 4 days off, 4 days on 3 days off arrangement.

It is important to note that a court must only consider making a shared time order, but is in no way bound to order shared time.  When determining whether shared time should be ordered the court will consider such factors as:

Nature of relationships between the child and each of the parents and other significant persons in the child’s life (i.e. other siblings, grandparents, step parents etc);

• Capacity of each parent to care for the child;
• Wishes of the child;
• Willingness of each parent to promote the relationship between the child and the other parent;
• The likely effect to the child of any changes to the child’s circumstances;
• The maturity, sex, lifestyle and background of the child or child’s parents
• Attitude to parenting;
• Any cultural issues;
• Whether the order made is least likely to lead to the instigation of further court proceedings.

If the court finds that an order for shared time is not appropriate, the court must then make an order for the child/ren to live with one parent and spend significant and substantial time with the other.  Significant and substantial time has been defined to mean time on the weekend, during the week, holidays and special occasions.

Once sealed the consent order is binding on both parties and can be enforced by the court.  If one parent decides not to comply with the order they are at risk of being punished by the court.

Changing the agreement

Any move towards renegotiating the amount of contact you have with your children should begin with an informal approach to the mother of your children to discuss the issue and request a change to the arrangements. In the event that she refuses your request, you can seek professional mediation.

A mediator is a neutral third party who can sit with you both to try to help you arrive at a mutually acceptable arrangement.

The final option, if mediation fails, is to seek an amendment of your contact/residency arrangements through the Family Court. It is a legal requirement that all parties go through a mediation process before bringing their case to the Family Court.

Breaches of Parenting Orders

Breaching a court order is very serious. If you, or the mother of your child/ren, breach a parenting order without a reasonable excuse, the court can order you, or the mother, to participate in a parenting program run by an approved counselling service.

If the Court finds that a person has breached a parenting order, it will consider whether a reasonable excuse has been made by the contravening party – for example where the person who breached the orders believed that the breach was necessary to protect the health or safety of a person and the period of time of the contravention was not longer than necessary to protect the health or safety of the child or the breaching party.

More information

For custody disputes, it is recommended that you get legal advice from an experienced family lawyer.

If you are concerned about your children’s welfare, or your parenting arrangement post separation, please contact our experienced family lawyer, Mark Orchard, for a free initial consultation.

Phone: 07 4639 0358
Email: morchard@cp484.ezyreg.com

Marriage

Whilst same sex couples cannot legally marry in Australia, they are able to register their relationship with the Queensland Registry of Births, Deaths and Marriages.

Overseas marriages of same sex couples are also not recognised as marriages in Australia.

Parenting

Where a child has been born to a couple, both the Queensland and Federal governments recognise both parents regardless of sex.

In Queensland, if the child is born through a formal assisted reproductive technology procedure, whether or not the donor is known, the non-birth parent is identified on the birth certificate of the child. The donor is not considered a parent of the child.

In Queensland, partners of birth mothers are allowed to be included on a birth certificate as “Parent”.

Male same sex couples are entitled to have a child through an altruistic surrogacy arrangement (when a woman becomes pregnant and gives birth to a child for another couple but she is not paid any money for doing so) and both partners will be legally recognised.

Same sex couples are not able to adopt in Queensland. Whilst de facto couples are legally allowed to adopt, the law specifically excludes same sex couples. Same sex couples can however be considered as foster carers.

If a same sex partnership breaks down, the parties may be required to finalise the future parenting arrangements of any children born of the relationship. The process undertaken in resolving any parenting dispute is the same as an opposite sex de facto relationship and very similar to a marriage.

Property

Same sex couples can own property jointly and have the same rights to property settlement as other de facto couples in Queensland.

Similar to opposite sex de facto relationships and marriages, same sex couples are able to enter into a financial agreement (previously called a cohabitation agreement) during their relationship to anticipate and determine what is to happen upon the breakdown of the relationship in respect of the distribution of any joint or separate property and/or the payment of maintenance.

In the absence of a financial agreement, upon the breakdown of a same sex de facto relationship, the same legal process and methodology is applied to determine a financial settlement as in an opposite sex de facto relationship or marriage case.

Same sex couples can leave property to each other in their wills and each can appoint the other as his or her attorney or statutory health authority.

More information

For more information on family law in relation to same sex couples, or to seek advice on a related family law matter, please contact our experienced family lawyer, Mark Orchard, for a free initial consultation.

Phone: 07 4639 0358
Email: morchard@cp484.ezyreg.com

PDF:  Family Law for Same Sex Couples