News

News

Child abduction and recovery orders

August 23rd, 2018

It is important for parents who are subject to parenting orders of the court to understand the legal definition of abduction, which includes not complying with the order by:

  • removing children from the care of a person;
  • not returning or delivering a child to a person;
  • interfering with the rights, duties or responsibilities of a person under the order; or
  • taking or attempting to take a child overseas.

If you are concerned that your child has been taken outside of Australia without your consent, you should immediately seek legal advice, timing can often be crucial.

If your child has not been returned to you or has been removed from you in breach of an order or an agreement, our family lawyers are able to assist you in making an emergency application for the return of the child. Once your child has been safely returned, we will work with you to ensure arrangements are put in place for the future security of the child.

If your child has been removed from Australia without your consent, you should contact one of our experienced family lawyers immediately.

Australia is a member of the Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention is an international agreement between 98 countries, including Australia, which provides a process by which a parent can recover an abducted child from another country which has signed the convention.

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Applying for a passport for your child

August 23rd, 2018

Both parents must consent in writing to the issue of a passport for their child. If both parents do not agree to a passport being issued, then a written request can be submitted to the approved senior officer of the Department of Foreign Affairs and Trade for the issue of a passport.

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Travelling overseas with children

August 23rd, 2018

It is not unusual in the modern, transient world for parents to want to travel on holidays with their children outside of Australia. If a parent wants to travel overseas with their child, they should first obtain the consent of the other parent. If the other parent does not consent to the overseas travel, then the parent who wants to travel with the children will need to obtain the permission of the court to travel overseas.

If a parent is concerned about their child being taken outside of Australia without their consent then they should obtain advice on their options from one of our family lawyers for preventing the child from travelling overseas.

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The various paths available to resolve parenting disputes

August 23rd, 2018

Mediation/family dispute resolution

The first step in most parenting disputes is to attend a mediation (also called family dispute resolution) in an attempt to reach an agreement regarding the living arrangements and care of your children. Our Cairns family lawyers often attend mediations with our clients to increase their chances of resolving the matter. Various mediation models can be utilised and necessary experts can be involved. We also assist our clients to select the right mediator for you and your family.

Not all families are required to attend mediation to be able to commence court proceedings concerning their children. There are some matters in which mediation is deemed not to be appropriate, for example, where the parenting dispute requires urgent resolution or where there has been domestic violence.

Collaborative law/collaborative practise

Collaborative practise is a form of dispute resolution which involves a series of open meetings between you, your former partner and respective lawyers to discuss your separation issues (parenting, property or others) and reach agreement. In this process the parties commit to resolving their particular family law issues amicably, without threatening to or commencing court proceedings.

Collaborative lawyers undergo specialist training to become qualified and hold particular skills which enable them to practise in this area. At Miller Harris Lawyers we are pleased to offer this service to our clients. Our Senior Associate, Julie Hodge, is a trained collaborative law professional and member of the Queensland Collaborative Law group.

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Parenting disputes and agreements

August 23rd, 2018

Parents know their children best. However, upon separation it can be difficult for parents to agree on appropriate parenting arrangements for their children. The effect of separation on children cannot be underestimated. Our Cairns family law team have assisted countless families to amicably resolve the parenting arrangements for children, upon the breakdown of the family unit.

Our team of experienced family lawyers can provide parents (and grandparents) with advice in respect to issues concerning their children or grandchildren. We employ a range of techniques to achieve a successful outcome for the families involved, including negotiation, mediation and collaborative practise. If it is necessary to take a matter concerning children to court, we have significant experience and a high level of skill at litigating children’s issues in the Family Law Courts. You can be assured your children’s best interests and your future plans and goals for your children will be front and centre of our approach.

The Family Law Act prescribes that the best interests of children are the paramount consideration in the making of parenting orders. The Courts apply this test to the individual family and the particular children involved when determining what orders should be made as to where the child lives, what time they spend with each parent (and significant others) and other parenting issues such as travel. The factors a court takes into account in considering what is in a child’s best interests are set out in section 60CC of the Family Law Act 1975.

Set out below are some of paths available to resolve parenting disputes regarding arrangements for children following separation.

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The effect of separation and divorce on your will and estate planning

August 23rd, 2018

It is important that, when you separate from your former spouse, you update your will and other estate planning documents such as a power of attorney and superannuation binding death nomination.

Until your divorce is made final, any gift to, or appointment of, your former spouse as trustee will remain effective.

After divorce, certain parts of your will may be automatically revoked leaving inadequate arrangements in the event something were to happen to you. It is essential that you obtain advice from an estate planning lawyer about your individual circumstances. We have a dedicated team of expert estate planning lawyers. For more information visit our Wills and Estate Planning page.

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Does a divorce or separation settle your property or spousal maintenance?

August 23rd, 2018

A divorce or separation does not resolve your property or spousal maintenance issues. The Family Law Act sets out a process by which de facto property matters, matrimonial property matters and spousal maintenance matters are resolved.

Time limits apply to the resolution of your de facto property, matrimonial property and spousal maintenance matters. Within 12 months of a divorce becoming final (or two years from separation for de facto couples), you must have filed an application for consent orders resolving your property and/or spousal maintenance matters by consent, or have commenced an application in the Family Law Court seeking a property division or spousal maintenance orders. It is possible to resolve your property and spousal maintenance matters by way of a financial agreement outside of this time period, but only if both parties consent.

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Do you have to attend at the hearing for the divorce?

August 23rd, 2018

If you and your spouse have made a joint application, or you do not have any children under the age of 18, you do not need to attend at the hearing of the divorce.

If, however, you have made a sole application and there is a child of the marriage under the age of 18, you as the applicant must attend the hearing. Your spouse will not be required to attend unless they have filed a response to divorce which opposes the application.

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What to do if you have been served with an application for divorce

August 23rd, 2018

If you agree with the facts in the application for divorce you do not need to do anything. If the application complies with the Family Law Act and Family Law Rules then a divorce will be made on the date it is listed before the court.

If you do not agree with the facts in the application for divorce then you can respond to the application.

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When will the Court grant a divorce?

August 23rd, 2018

To grant a divorce, the Court must be satisfied that:

  • there is no reasonable likelihood that the parties will reconcile;
  • you and your former spouse have lived separately and apart for at least 12 continuous months; and
  • if there are children under the age of 18, proper arrangements have been made for the care of the children.

Every separation is different. Some of our clients have remained living together in the same household for months at a time following their separation. Courts have, for some time, recognised that parties can be separated but still live together under the one roof. Talk to our Cairns family lawyers about what is required to satisfy the court that you have been separated for 12 months.

If you have been married for less than two years then additional obligations will apply to you, including the requirement to attend counselling and to obtain a counselling certificate. We work with counsellors in our local area (and across Australia) to ensure that our clients can satisfy this requirement.

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