About Shannon Daykin

Director of Daykin Family Law practising exclusively in all areas of Family Law

What about the fur-babies?

Relationship breakdowns are one of the hardest things any person can go through.  We know that this can be even more challenging when there are children involved.  But little focus is often given to the family’s animals and where they fit in from the outset.  For many, “fur babies”/the family’s pets are like children.

The Family Court and Federal Circuit Court however does not see it this way. The Family Law Act (1975) Cth does not make specific reference to pets and they are essentially treated in family law as assets to be adjusted between the parties.  So, just like the car or the caravan, the pets are often allocated to one party or the other.

This also means that the Family Court and the Federal Circuit Court cannot determine the shared custody arrangements for your beloved furry friends.  While some fur parents are choosing to enter into agreements just like a parenting plan for children, or record an agreement by way of a Notation to proposed orders, the Court has no power to enforce these ongoing arrangements.

If a pet is an asset, what is the value?  For some, the answer is: priceless!  For the Court, this is not so clear.  The value of an animal is what the market dictates, so the market value.  Generally, a nominal value is attributed to pets unless they are show dogs or pedigree animals.

What if you can’t decide on who is to keep your pet?  It’s similar to how a determination is made by the Court about who keeps any other asset.  The Court will consider who the animal is registered to, who takes primary responsibility for the animal and where the pet can be appropriately housed.  Past case law tells us that any attachments by a child of the relationship to a pet may be a weighty factor.

Some overseas jurisdictions have moved towards shared care arrangements for pets but, as yet, the Australian Legal system is yet to catch up.

Contact Daykin Family Law today to talk about how we can help you separate amicably and reach an early agreement without running up unnecessary costs.

Being a Grandparent in the 21st century

In modern society, families are increasingly reliant on the significant care and support that grandparents provide to their grandchildren to allow parents to work and provide for their own family.  While it’s hoped that a separation will not affect grandparent’s relationships with their grandchildren, this is quite often not the case.

Have you been stopped from or limited in the time you can spend with your grandchildren? Including after a separation or divorce?  As a grandparent, you have options to assist you to preserve your grandchildren’s relationship with you.

The Family Law Act (Cth) 1975 gives the Court power to make parenting orders for children that relate to other people, not just parents.  In fact, grandparents are specifically listed in the legislation along with parents as people who may apply to the Court for parenting orders.

As with all parenting matters before the Court, the Judge must regard the child’s best interests as the paramount consideration when making decisions.  This includes a number of factors, including but not limited to the following:

  • the nature of your relationship with the child/ren’s parents. Both with your own child and the other parent and the ongoing effect of such time on the relationship;
  • what time you have spent with the child/ren to date, and the nature of your relationship with them;
  • the child/ren’s wishes;
  • any other factor the court deems relevant.

In circumstances where neither parent may be suitable to care for the child, or where as a grandparent you have been the child’s primary carer, the Court enables you to make an application for them to live with you or to spend substantial and significant time with you.  It is important that if you feel these circumstances apply to you that you seek legal advice prior to making an application with the Court.

Of course, Court should be the last resort.  It is one of the many reasons that the law requires parties to attend mediation proper to commencing court proceedings, unless there is urgency or has been family violence.  While mediation does not guarantee that you will reach agreement as to what time you can spend with your grandchildren, it can be step in the right direction in a lot of cases.

For complex family relationships, there are also family counsellors and other services available that may be able to assist you to discuss with your family the time your grandchildren can spend with you without adding further conflict.

For advice tailored to your specific circumstances, contact us today to discuss your options.

Love & assets: What is a Pre-Nup? Do I need to be engaged to protect myself?

Whether it’s on an American TV sitcom, or in a Kanye West song, we’ve all heard the term “Pre-nup”.  But what does this mean?  And how do they work in Australia?  Can they be used outside of contemplating a walk down the aisle?

On this side of the globe, we have Financial Agreements.  This is a contract between two or more parties that can be entered into before, during or after a relationship.

We will focus on these “pre-nup” or “pre-nuptial” Financial Agreements.  These are highly technical agreements made by parties before marriage under Section 90B of the Family Law Act 1975.  The agreement can cover how any or all property and financial resources of the parties will be dealt with in the event of a separation.  It can also cover what spousal maintenance, if any, will be paid between the parties.  Other ancillary matters can also be included.

Importantly, Financial Agreements are being used more and more to protect assets that one person brings into a relationship, or the assets that one person will receive during their relationship at some point in time from family or some other source.  This allows assets to be preserved for children of a previous marriage, as an example, children that are yet to be born or even extended family members.

The possibilities are near endless.  There can be an entire quarantine of property or financial resources, or one party can acquire an incremental interest over time in the other person’s property, to adjust for the passage of time or even the pitter patter of tiny feet.  Financial Agreements can be reviewed at an agreed time in the future, and they can even have an end date if this is what the parties agree on and want. 

These agreements are not just for people contemplating marriage.  There are different circumstances where couples can enter into this type of agreement, including:

  • The couple is going to live together but there is no plan to get married
  • The couple is going to live together and they do plan to marry, but have not decided when they will get married  
  • The couple is already living together
  • The couple is already married

The Family Law Act 1975 outlines specific requirements that must be met to ensure that the agreement is binding and enforceable. 

One of the requirements under the Act for a financial agreement to be binding is that both parties must be given independent legal advice before the agreement is signed.  This is about the effect of the agreement on the party’s rights, and the advantages and disadvantages to that party of making the agreement.  The lawyers need to sign certificates to this effect.

Both parties must engage their own lawyers.  A common lawyer cannot be engaged by both parties for the purposes of a Financial Agreement, even if both parties are completely in agreement about the terms and what is to happen.

The law surrounding Financial Agreements is in an almost constant state of change in Australia.  The legal fraternity is currently awaiting the outcome of a High Court case involving the issue of duress when parties sign these types of agreements.  It is vitally important to ensure that the lawyer you engage has a high level of knowledge around the technical and practical aspects of this area of family law. 

These are sensitive issues, with people’s relationships continuing to hopefully grow and flourish while we negotiate and draw these agreements up.  Often there are many people involved and invested in the process on the outer edges, such as business partners, adult children and extended family members.  As a result, these matters need to be handled with care by the lawyers concerned to promote harmony where possible, and avoid unnecessary conflict which could harm the relationship.

We work with a range of lawyers who we recommend to our clients’ partner or fiancés, who share our pragmatic approach and are highly competent in this area. 

Talk to us today if you are considering an agreement for your relationship,  no matter what stage it is at.  We can discuss with you the many varied options for how such an agreement can work for you and achieve the level of asset protection you desire.

Clearing away the looming clouds of uncertainty: Finalising your past to secure your future

When a couple separates, it can be all too tempting to just make a quick and informal agreement about property to move forward as early as possible, away from the anguish surrounding the relationship breakdown.

What many people don’t know is that informal agreements dividing assets are not necessarily enforceable.  When there is no enforceable agreement recording how property is to be dealt with at the end of a marriage or de facto relationship, the door remains wide open for the other person to have “another bite at the cherry”.  That means that either party to the broken-down marriage or de facto relationship can make an application to the Court for property orders in the absence of court orders or a binding financial agreement.

It can be particularly risky or complicated in circumstances where one person moves onwards and upwards, continues to accrue assets or grow their own property after separation, or even mixes their finances with a new partner.  This is because all property is included in the “pool” available for adjustment as at the time of trial or agreement.  Whilst you may be able to argue you should keep all or the lion’s share of a particular asset due to your contributions to it after separation, there is no hard and fast rule and your assets may well be vulnerable.  Many factors will be taken into account by the Court, however post-separation earnings and accrued assets are not necessarily safe from the reach of the other person.

Married people have up until 12 months after a divorce order takes effect to make an application to the Court for property settlement and/or spousal maintenance.  The time limit for people to file an application for property settlement or maintenance after a de facto relationship ends is 2 years after the date of separation.  Even after these time limits, an application can be made to Court on certain grounds to proceed with an application even when it is out of time.

Finality with financial affairs after separation is important to allow you to make decisions with certainty that will benefit you and those you care about moving forward.  Recording a binding and enforceable property settlement can assist with this finality, to ensure that what you keep remains yours and you are free from any claim for property in the future.  There are a couple of ways to record an agreement, with the most cost effective often being an application for consent orders through the Court.  Neither party will need to attend Court as the application is considered in-house, unless the Court considers the agreement reached is unjust or inequitable to one party.

There are also ways to limit your spouse from making an application against you in the future for spouse maintenance, with the same options applying to de facto couples after separation.

We have helped many clients record their property settlement agreements cost effectively and efficiently.  Usually, we can draft all of the documents you need within a matter of days if we have all of the relevant information and an agreement has been reached.  Contact us today to discuss how we can help you move forward with finality.

Mapping your path after separation

Whether it has been your decision or the decision made by your partner, the road stretches out at the time of separation and forks off in several directions.

Emotions can run at an all-time high and this can sometimes cloud those first crucial decisions that are made.  In more severe cases, people make decisions which can have a long-term impact on their children, their ex, their broader family and how their lives will unfold from there.  Decisions where there were better alternatives, and negative outcomes that could have been avoided.  That’s where family lawyers can do their best work, preventing potential disasters.

Engaging a good family lawyer at the time of separation can save you a lot of time, expense and pain later by accessing advice you can rely on from day one that sets you up for success.  A person’s separation can involve many elements, such as parenting, child support, spousal maintenance, property settlement and domestic violence.  There might be more urgent issues that need to be dealt with right away, with others that can be left to a later time once some of the dust has settled.  Us family lawyers give advice based not only on legislation and rules, but our experience in the courts knowing how Judges and Magistrates are likely to view the things that people do and do not do when they separate, and how a particular issue might be dealt with.

With this knowledge and experience, the first meeting with your family lawyer should cover how to:

·         minimise conflict

·         promote your children’s best interests

·         protect your assets

·         preserve your rights

·         ensure that you can provide for yourself and/or your children

·         avoid joining the many, many people queued in the court system waiting for decisions to be made about their property and family

·         save costs

Armed with this advice and information, you can make solid decisions on which path to take.  Straight after separation, many people do not need anything drastic to change.  There are certain steps to follow to work through a property settlement and/or an agreed parenting arrangement.  While those occur, agreements can be reached along the way to keep joint expenses paid such as the mortgage, utilities, school fees and those related to the running of the home.  Ideally, the exchange of documents can take place relatively early so that offers can be made and a binding agreement drawn up once consent is reached.

Some matters though can escalate quickly, landing people in court with legal costs increasing sharply.  In many cases, there are alternatives to instituting court proceedings.  This can involve raising any urgent or concerning issues as they arise, setting out a pathway to resolve those issues and following through to ensure those issues do not arise again.  This is where pragmatic advice is particularly useful.  Talking through the issues with you, how things might play out and how this might impact on you is an important part of what we do.  We call it reality testing and it is vital.

The involvement of a family lawyer is ideally only a brief part of your story.  We should not be the stars of your show.  You should be front and centre, making your own decisions and forging your new path.  Talk to us today about how we can help you find the right path to suit your circumstances and your family after separation.

The other parent is breaching parenting orders, what are my options?

Obtaining final parenting Orders is often at the end of a long process for many people which can be emotionally and financially draining.  When the other parent starts breaching those Orders, it can be a huge source of further frustration, worry and headache.

When parenting orders are made by the Court, whether by consent or as a result of a trial, it is important that all people involved comply with the orders.

A person is considered to have contravened a parenting order if they have:

  • intentionally failed to comply with the orders;
  • made no reasonable attempt to comply with the orders; or
  • intentionally prevented compliance or aided contravention of orders by a person who is bound by the orders.

Examples of contraventions of parenting orders include circumstances where a parent fails to return the child or children to the other parent at the time or date specified, where a parent uses corporeal punishment methods (such as smacking) when such acts are expressly prohibited, or where a parent discusses adult issues with the children when they are specifically prohibited from doing do.

Having a reasonable excuse for contravening parenting orders can be a defence in contravention proceedings.   Reasonable excuses can include:

  • circumstances where the person in contravention of the orders did not understand the obligations imposed on them by the orders;
  • the person in contravention believes on reasonable grounds that the contravention was necessary in the interests of their own health and safety or that of the children; and
  • where the Court is satisfied that the person in breach ought to be excused in relation to the contravention.

If someone contravenes a parenting order without reasonable excuse, the other party may wish for the contravening party to be punished by the Court for non-compliance or, alternatively, may simply wish for the contravening party to comply with the Orders.

When seeking a party to be punished by the Court, filing an Application for Contravention of Child Order is an option.  The remedies available from this course of action range from compensating a person for lost time with the children, varying existing orders, imposing fines and, in some cases, imprisonment of the party in breach of the orders.  Care should be taken with this approach, given the Court’s ability to vary parenting orders in contravention proceedings, and we recommend that you seek legal advice before you initiate this process.

If the other party does not want the contravening parent to be punished, however would prefer a remedy to ensure resumption of the arrangements specified in the Orders or other orders to deal with compliance issues, that party may be able to file an Initiating Application seeking certain orders.  Again, you should seek advice before taking this step as costs consequences could flow if such an application was unsuccessful.  We regularly advise clients on these issues, including whether the Court is likely to vary certain parenting orders, or not.

It is also important to remember that parents may be able to resolve matters involving the contravention of parenting orders privately, without resort to litigation in the Court.  There are a range of options available to deal with contraventions and aid compliance outside of the Courtroom.

If you believe that another party to parenting orders is in contravention, contact us today for a reduced fixed fee initial consultation to discuss your options.  Our focus is to resolve your issues, if possible, out of Court.  If Court is the only option, we can discuss with you ways to keep your legal costs down and work with you to achieve the result you desire.

How to stay above water with family law costs

There are far better things in life to put your hard earned money towards than unnecessarily high legal costs.  We have had too many clients who have been up the river and back with high legal fees that have gotten them virtually nowhere but disenchanted with the legal process and family law in general. 

We pride ourselves on being the problem solvers.  We want to get you from A to B, with your dignity and finances in tact wherever possible.  At the very first meeting with your lawyer, you can and should discuss with them how you can keep your legal costs down.  With our clients, we talk about the end game at the start and the different options to get there to suit their budget and their needs. 

Here are 5 top tips on how to keep your legal costs down:

1.       Reach agreement.. and do it early!

It’s no secret.  Protracted negotiations can be extremely costly, lead to entrenched positions and spin the parties into the already congested court system.

We will always explore with our clients avenues to reach an early settlement wherever possible and save costs.  This can take many forms, such as supporting you to negotiate yourself and make informed decisions negotiating around the kitchen table with your ex or at a mediation.  Another way is to fast track the exchange of necessary financial documents and make an early offer to settle.

You may be able to get more if you went to Court, but we encourage clients to think about the financial and emotional cost of not settling early.  Not just on you but your family as well.  It can be too easy sometimes to get stuck in old conflict patterns and dig your heels in. Our job is to give you independent advice, a trusted advisor who can step back, assess the situation frankly and guide you. 

We encourage our clients to explore the benefits of an early, clean break.  If you can, get to a settlement fast. It will free you up to focus on your bright, new future.

2.       Be up front with your lawyer about what you want out of the process, what’s important to you

This one is best explained with an example. Let’s say you tell your lawyer from the outset you are happy to move to a shared care arrangement for the kids with the other parent. Negotiations ensue, legal costs are expended. Then, the client starts putting up road blocks all over the place. Wanting to take issue with the ex’s care of the kids, the new partner’s involvement, what the other parent puts in the kids’ lunchbox.. all things that are not new and have long been an issue.  After  lot more legal costs and a strained co-parenting relationship with lawyers lobbing letters back and forth, the conflict is increased further with only the lawyers benefitting.  No settlement is in sight.  Court looks like the only option.

A way to avoid this increase in legal costs and tensions is to tell your lawyer up front about your concerns, your fears and what the roadblocks might be to you signing off on an early agreement and making lawyer’s fees a thing of the past.  A big part of our job as lawyers is reality testing. Stepping through with you how certain issues, if handled certain ways, can play out and how they might increase tensions unnecessarily and put you further away from your goals. 

This reality testing early on allows you to choose the path that best suits your purpose.  If your lawyer isn’t signposting your matter, letting you know how you can quickly move past issues to save costs and headaches, something may be wrong.  Be upfront with your lawyer at every step.  It will save you time and money.

3.       Assess your own skillset.  What stages of your matter can you do yourself, and what do you need assistance with?

Some people are comfortable in negotiating themselves.  If this is the case, we can tell you what documents to ask for, what documents to hand over.  Then we can help you formulate a strong offer and draw up the agreement.  This is the best way to keep costs down and we’ve had many happy clients tell us they have been pleased with how little the whole process has cost them.

When Court is inevitable, there are still options to keep costs down.  Not everyone is comfortable addressing a Judge in Court as a self-represented litigant.  Some people are, with a little help from their lawyer.  If Court is the only way to move your matter forward, you can save legal costs by getting your lawyer to assist you in drafting some succinct court documents that address all of the necessary legislative factors.  This will place you in better stead to run some steps of the matter yourself if you choose.

Many matters do not end in a trial. Litigants can be assisted by the preparation of expert reports in property and parenting matters, mediation and the exchange of disclosure.  Offers can be put forward at almost any time in the court process before the end of trial.  Your lawyer can help you craft a solid offer to end litigation and draft the consent orders.

4.       Give timely, considered instructions

When lawyers need instructions from clients, it should be for a purpose.  To get you closer to what you want.  Sitting on giving those instructions can increase costs unnecessarily, as issues can snowball which leads to even higher fees.

A lot of issues, which would have otherwise lead to a flaring up of the matter (and costs), can be nipped in the bud with timely instructions and a well crafted response to take the heat out of the situation.  If the lawyer on the other side is litigious, the other party might be getting advice that your lack of response and action can be construed as a disengagement from the process, leaving Court the only option.  This path will likely end up costing you much more, financially and emotionally.

If you are going to be away or hitting a busy time at work, tell your lawyer so they can get on the front foot so any lack of response cannot be unreasonably misconstrued.

Think through your instructions before you give them to your lawyer, and ask whatever you need to so you can make informed decisions.  Changing your mind later can increase costs and build conflict.

5.       Choose the right lawyer

It’s important that you trust your family lawyer and the advice they are giving.  If your lawyer is not giving you pragmatic advice and talking with you about how to navigate your matter with the least fees, you may want to reconsider your choice.  We often meet with people to discuss a change of strategy to finalise a matter quicker, or give a fresh perspective.

Our business is built on our reputation.  There is no greater compliment to us than our clients and former clients referring us their family members, friends, work colleagues, knowing they will be well looked after.  The family law community is relatively small.  We are not known for increasing our client’s legal spend unnecessarily or building conflict to generate fees.  Quite the opposite.  Daykin Family Law has built its practice on giving pragmatic advice at every step with the client’s interest at the forefront, with options to keep costs down where possible and move to the end of the process efficiently.

Book an appointment with us today to start the conversation on how you can resolve your family law issues efficiently and cost effectively.

Understanding parental responsibility: not just for parents

gmother-w-child

The phrase ‘equal shared parental responsibility’ is one that can be easily misunderstood to have the same meaning as ‘equal time with the children’. It is not unusual for parents or individuals with children that are subject to parenting matters before the Court to hear this phrase and sometimes be confused. As such, it is important for parties separating, and non-parent applicants before the Court, to understand the meaning of equal shared parental responsibility.

When making a parenting order, the Court applies a rebuttable presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Parental responsibility refers to all duties, powers, responsibilities and authority which parents have in relation to their children. These responsibilities and duties that parents have for their children include long term decisions such as determining the children’s religion and making decisions about the child’s health and education.  

This then means, unless the Court orders otherwise, it is presumed every parent has this parental responsibility and, as such, parents that have separated or divorced ought to share major decision-making regarding the children. It should be understood that although parental responsibility places an obligation of responsibility on the parent, it does not confer an automatic and absolute right of a parent towards the child. Under Australian legislation, the best interests of the child are paramount to the Court’s decision-making.  It must be in the child’s best interests for an order to be made that both parents have equal shared parental responsibility.  If such an order is made, the Court must then determine whether an order that the child spend equal time with both parents is in the child’s best interests and should be made.  In a lot of cases, for a lot of reasons, this is not reasonably practicable and other time arrangements must be considered.

Orders for parental responsibility in relation to a child are not just for parents.  Such orders can be made in favour of a child’s grandparent(s) or any other person concerned with the child’s care, welfare and development.

If you have recently separated from your spouse or de facto partner, or have a child in your life whose long term care you are concerned about, contact us today for a reduced fixed fee initial consultation to discuss your options.  We have a great depth of experience in children’s matters, including acting for grandparents and non-parent applicants before the Court, and will provide you with no-nonsense, pragmatic advice.   Visit our website for information on our services and contact details.

Financial help from your ex-spouse or partner after your separation

Here in south-east Queensland, actor Johnny Depp and his wife Amber Heard have been in the news for a number of reasons.  Firstly, for the couple’s reported failure to declare their two dogs Pistol and Boo to Australian immigration authorities when they arrived at the Gold Coast and, more recently, following the breakdown of their marriage.1 Johnny Depp is a successful Actor who earns a large income, and reportedly after filing for divorce, his wife Amber made a considerable claim for spousal maintenance.  This claim was later withdrawn, reportedly for a variety of reasons,2 however this high profile example draws attention to the important concept of spousal maintenance.

In Australia, spousal maintenance refers to financial support given by a party to a marriage or de facto relationship to the other party of that marriage or de facto relationship who is unable to adequately meet their reasonable financial needs.

During a marriage or a de facto relationship, one person may take time off work for a variety of reasons, such as for maternity leave, to become the primary carer for the children or to attend to the running of the household.  In the event of separation, this time off work often leads to that person being economically disadvantaged, due to the loss of income or promotions that would have been achieved if they were to have remained in the workforce.  The purpose of spousal maintenance is therefore to adjust for any disparity between the incomes or earning capacities of spouses based on their respective needs.

In determining spousal maintenance orders, the Court considers factors such as age, state of health, income, property and financial resources of both of the people in the relationship and primary care of children of the relationship. Spousal maintenance orders can be made by consent or after a contested hearing, and be made by the Court urgently if necessary. Spousal maintenance can be in the form of periodic or ongoing payments for a period of time.

If you have recently separated from your spouse or de facto partner or are thinking of separating and need more information about spousal maintenance, such as your entitlements or obligations, contact us today for a reduced fixed fee initial consultation to discuss your options.  We are experienced in spousal maintenance matters and can help you obtain the support you need to move into the next phase of your life.

By Daphne Chiwaya, Lawyer, Daykin Family Law

 

1. http://www.abc.net.au/news/2016-05-26/johnny-depps-wife-amber-heard-files-for-divorce/7448382

2. http://abcnewsradioonline.com/entertainment-news/report-amber-heard-withdraws-spousal-support-request-in-dome.html

27556101 - a pink piggy bank and money with sky background

International child abduction

Two Aussie kids are at the centre of an international child abduction case in Lebanon. 

During a relationship, often one parent will think that the other parent would never dream of taking the children overseas without their permission, away from their parent. Sadly, things can change when two people separate.

If your child’s parent has any links to family or work overseas, and there is any chance they could take your child overseas, or keep them there, without your permission, seek advice from us urgently.

There are a range of steps that can be taken to keep your children safe to either stop them leaving the country, or limit the prospects of them being retained without your permission at the end of an overseas holiday. 

Contact us today for a reduced fixed fee initial consultation to discuss your options and develop a safety plan if necessary. We are experienced in international child abduction and Hague Convention matters.

http://abcnews.go.com/International/wireStory/australians-detained-lebanon-kidnapping-suspicion-38213318