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Debunking 4 common family law myths

July 30th, 2019

There are many misconceptions or “myths” in family law that can lead to separating couples making poor decisions that are not in their best interests.  We debunk some of these common myths below.

Myth 1: I am not married so I don’t need to have a property settlement”
Not true; save for very limited exceptions, all de facto and married couples are required by the Family Law Act to formally end their financial relationship through a property settlement within a specific time period.  If in doubt, it is always best to seek advice on whether a formal property settlement is required.

Myth 2: “Property acquired after separation is not relevant”
This is also incorrect.  Whilst the inclusion of assets acquired post-separation will always depend upon the circumstances surrounding the acquisition of the asset, as a general rule, the asset will usually be included in the property pool.  For example, in a recent court case, the court made a decision to include in the property pool, an inheritance of $715,000.00 received by the husband five years after separation.  This is a classic example of why property should be divided and a property settlement formalised soon after separation— not years later.

Myth 3: “If my ex and I agree on the division of our assets, we do not need a lawyer”
Once an agreement is reached, it is important that it is formalised in one of the two ways recognised as binding and enforceable by the family courts.  The parties can apply to the court for consent orders or they can execute a binding financial agreement in accordance with the family law legislation and regulations.  It is important that legal advice is sought in the drafting of these documents.  If a property settlement is not formalised in one of these ways, the family courts will not recognise that a property settlement has occurred, which may leave parties vulnerable to a later court application seeking a further adjustment of property interests.  There are additional benefits in formalising a property settlement including eligibility for an exemption on transfer duty on any property transferred between spouses.

Myth 4:  “Most property settlements are 50/50”
This is another common misconception.  What percentage of the property pool a spouse is entitled to is calculated by applying complex legal principles and precedents.  It includes consideration of many factors.  We encourage clients to obtain legal advice as to their entitlements before discussing the division of their property with their former spouse.

At Miller Harris Lawyers, we understand that separation is stressful and emotional.  We work with our clients to provide strategic legal advice which empowers people to make informed decisions about the future and to move forward with their lives.  If you are going through a separation, contact our expert family lawyers today on 07 4036 9700 to enquire about our fixed fee initial consultations offered at both our Mareeba and Cairns offices.

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When do children get to decide which parent they will live with?

July 4th, 2019

One common misconception that parents often have following separation is that their child will get to decide who they live with and how much time they spend with the other parent.

The living arrangements for children after separation is a decision to be made by both parents, not the children.  If parents cannot agree to the living arrangements for their children, they are required to attempt mediation to see if they can agree with the assistance of an independent third party.  If there is still not agreement after mediation, then ultimately either parent may need to commence court proceedings asking the court to decide on the arrangements for the children.

The next obvious question is—If children do not get to decide who they will live with, do they get a say in the decision at all?  The answer to this question will depend on the circumstances of the particular family.

For example, we are commonly now seeing that parents who agree to attend a mediation to discuss and try to reach an agreement on the arrangements for their children are adopting one of the two following practices to ensure their children also have a voice in the decision:

  1. Attend a child inclusive mediation.

Unlike the suggestion of the name, the children do not actually attend at the mediation with their parents.  Whilst mediations are run differently by different mediators, generally the mediator will spend time with the children prior to the mediation.  The mediator is trained to create a comfortable and safe environment for the children to share their views on the issues to be discussed at mediation.  Those views can then be brought into the mediation through the mediator.

  1. Obtain a family report prior to mediation

A family report is written by a family report writer, who is usually a social worker or psychologist.  The purpose of the report is to provide recommendations on what parenting arrangements are in the best interests of the children.  In making recommendations, the report writer gathers information through interviewing both parents and significant others, the children (if they are old enough) or observing the children with their parents (if they are not old enough to be interviewed).

A family report is often ordered by a court in parenting proceedings to assist the court in gathering evidence as to what arrangements are in the best interests of the children.  Increasingly however, parents are choosing to obtain a family report privately to assist them in making decisions for their children outside of the court process.

A family report is another way in which children can have their views heard by both parents and is an asset in a mediation. However, ultimately it is the parents or court who have the final say in the children’s care arrangements.

It should be noted that how much weight is given to the views of children will depend on the individual circumstances of the case, and in particular, the age of the children and their maturity.  Whilst children do not get to decide their own care arrangements, the more mature and older they are, the more weight that will usually be given to their views.

The recent High Court decision of Bondelmonte confirms that even children who are mature and approaching the age of 18 are not able to decide their care arrangements.  In that case, the children who were 15 and 17 at the time, were ordered by the court to live with their mother, despite both children expressing that they wanted to live with their father.

If you are going through a separation and would like to discuss your parenting matter, contact one of our family lawyers today on 4036 9700 to find out about our fixed fee initial consultations offered in both our Mareeba and Cairns offices.

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