Your guide to Parenting Communication Apps

Co-parenting can be difficult at the best of times. When you are separated and no longer have the daily contact that comes with living together, it becomes even harder to coordinate busy schedules and keep everyone informed about the latest events in the children’s lives. It can also be hard to manage finances, such as paying half of the children’s sports uniforms and registration fees for soccer next term.

Many of our clients find benefits in using a parenting-focused communication app. There are a number of communication apps out there in the market and today, we shed light on the most popular apps.

Talking Parents

Talking Parents, as the name suggests, is a good option for a parenting communication app.

The free version of the Talking Parents app can be accessed on their website only. Talking Parents allows you to send and receive messages and create shared calendar events.

The paid subscription services have more features, including recorded video calls (phone calls can only occur in the US), access to call transcripts and recordings and sharing and storing documents in the app.

It is worth noting, as Talking Parents is US-based, some features are not available in Australia (such as recorded voice calls and payment features). Talking Parents does not allow you to add a third party to view your account (and communications).

Current pricing: free, $9.99/month or $24.99 per month

What stands out: there is a free version, if you only want the standard features

For more information, visit: https://talkingparents.com/home

Our Family Wizard

Also created in the US, OurFamilyWizard has a number of great features, including:

• a shared calendar;

• message board;

•  journal (where you can share photos or documents);

• an expense log (which allows you to attach receipts); and

• an ‘info bank’ to store emergency contacts, vaccination records etc.

OurFamilyWizard is a paid subscription, which allows you to add third party accounts (such as including additional parents, grandparents and extended family members). Third parties are then able to access the family calendar and receive updates.

OurFamilyWizard also has a feature which allows your lawyer or mental health practitioner to ‘view’ your account as you would, meaning they can keep abreast of the issues you are experiencing and assist you in managing any conflict.

Current pricing: $154 for a 12-month subscription ($12.8/month) or $270 for a 2-year subscription ($11.25/month), 30-day ‘money back guarantee’ offered   

What stands out: this app has a number of great features, including ‘ToneMeter’ which identifies potentially emotionally charged comments which are worth thinking about before you send

For more information, see: https://www.ourfamilywizard.com.au/

2houses

Created in Europe, 2houses has an interactive calendar (which allows you to initiate a schedule change request, and the other parent can offer an alternate date for make-up time). The 2houses app synchronises with your usual calendar (i.e. iCal, Outlook or Google).

You can also manage your expenses on 2houses and communicate with the other parent. 2houses offers an information bank, with document storage and a summary of your child’s information (such as clothing size, useful contact details and more).

You can also request access for your lawyer so they can view your account, including schedules and communication.

Current pricing: $159 for a 12-month subscription ($13.25 per month), free 14-day trial

For more information, see: https://www.2houses.com/en

AppClose

AppClose has a shared calendar which also has ‘request’ features to manage any make-up time. There is a messaging feature which allows you to see whether your message has been viewed and when. There is an audio and video call feature (which can be disabled). You can send requests with documentation, such as a receipt. You can also export records if you need to share documents or records with yourself (or your lawyer).

Current pricing: free

For more information, see: https://appclose.com/

Other parenting apps available

There are a number of other parenting apps out there. Some include:

Ø  Cozi (a free app with a calendar + shared lists/notes, in-app purchases available)

Ø  FamCal (another free app with a calendar + shared lists/notes); and

Ø  WeParent (a paid subscription app with calendar and messaging features)

Whether you are engaged in a family law matter and need advice about which parenting app is most suitable for your circumstances, or if you need advice on negotiating arrangements with your former spouse, contact Robinson + McGuinness to make an appointment on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Anika Buckley

Reopening parenting proceedings: What is a material change in circumstances?

A commonly referred to parenting case, Rice & Asplund 179 FLC, set an important precedent that a finalised parenting case ought not be reopened unless the Court is satisfied that there has been a significant change in circumstances. The change does not need to be so significant that it would clearly result in a change to the orders, however the change or fresh circumstances must demonstrate a real likelihood of change being made to the orders.

So, in what circumstances has the Court found that there has been a significant change of circumstances?

• The relocation, or proposed relocation of a parent is a common basis upon which the Court will permit reopening of proceedings. In the case of Stern & Colli [2022] FedCFam C1A 95, at the time that final orders had been made by the (then) Federal Circuit Court of Australia in 2017, the Father had been living approximately four hours from the child, who lived primarily with the mother. He sought to reopen proceedings in 2020, after he had relocated such that the distance between the Father and the child was reduced to a 40-minute drive. The Father’s application to reopen was dismissed, however on appeal, the Full Court of the Federal Circuit and Family Court found that the Father had demonstrated sufficient reasons to reopen the parenting case. The matter was remitted for hearing.

• In the case of Shan & Prasad (2020) FLC, the Court at first instance dismissed the Father’s application to reopen proceedings. The Father had relied on new psychiatric evidence demonstrating the improvement in his mental health. On appeal, it was found that the evidence adduced by the Husband was sufficient to warrant the reopening of proceedings.

•   In the case of Westlake & Westlake [2019] FamCA 563, the Father’s application to reopen proceedings was dismissed. Final Orders had been made providing for the Father to have only supervised time with the children. He subsequently relied on evidence obtained from a psychologist, asserting that such evidence demonstrated an improvement in his mental health such that a reopening of proceedings was warranted. The Father’s application was dismissed, with reference to other expert evidence which showed the Father’s “personality with obsessional and narcissistic traits which are very well developed which do not equate to being a mental illness which can be treated”. Those findings satisfied the Court that there was no change in the Father’s fixed views of the Mother to justify reopening the proceedings.

• The change resulting from passage of time has been a circumstance in which the Court will consider reopening proceedings. A common example of this would be when orders are made for an infant, such that there is no provision for the child to have overnight time with one parent. Of course, over time, those orders become restrictive and no longer support the best interests of the child.

• If there are allegations of physical or emotional harm or abuse, sufficient for the Court to be satisfied that there is risk of harm, the Court has reopened proceedings.

• Parties may also make Orders by consent in recognition of a change in circumstance, however it remains open to the Court to refuse to reopen proceedings, or make further orders by consent, if there is not a sufficient change in circumstances.

Ultimately, the Court needs to determine whether it is appropriate to reopen a case based on the particular facts in each case. A change in a party’s geographical location or simply the passage of time may or may not demonstrate a change in circumstances adequate to justify the reopening of parenting proceedings.                                                                                                

For this reason, it is prudent to obtain advice tailored to your circumstances from a family lawyer, ideally as soon as possible after separation, in order to preserve your interests. Contact Robinson + McGuinness to make an appointment on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Margot McCabe

Exploring the Proposed Amendments to the Family Law Act 1975

In early 2023, following reviews by the Australian Law Reform Commission and the Parliamentary Joint Select Committee into Australia’s family law system, the Attorney-General’s Department published an exposure draft of the Family Law Amendment Bill 2023 for public comment. The primary focus of the proposed amendments is ensuring that the family law system prioritises and recognises the best interests of the child.

 The amendment Bill contains a number of proposed changes. Some of the most significant are:

The Removal of the Presumption of Equal Shared Parental Responsibility

Currently, section 61DA of the Family Law Act applies a presumption that parents should receive equal shared parental responsibility unless a party can show the Court that it is not in the best interests of the child. The removal of this presumption could make the process for obtaining parenting orders simpler for parties, which would in turn allow the Court to better focus on understanding the best interests of the child.

An Overhaul of the Factors Considered by the Court when Determining the Best Interests of the Child

In its existing form, the Family Law Act provides two main factors and thirteen additional factors to be considered when determining what parenting arrangement would be in the best interests of the child. The suggested changes see this being simplified to six factors of equal weight. There is also a seventh factor to be applied when the child identifies as Aboriginal or Torres Strait Islander.

Requiring that the Independent Children’s Lawyer meet with the Child

Independent Children’s Lawyers are not presently required to meet with the child whose interests they are representing. It is being proposed that Independent Children’s Lawyers must meet with all children over the age of five, so that they are able to voice any views or concerns they may have in relation to the matter.

Restricting the Filing of Potentially Harmful Applications

The amendment Bill seeks to limit the filing of applications which may be especially harmful to the child and/or the respondent. Under the proposed changes, the Court would have the power to dismiss applications it believes are frivolous, vexatious or an abuse of process.

Notwithstanding these proposed changes, navigating the family law system can be complex and confusing. To make an appointment with one of our experienced family lawyers please contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.

Author: Hannah Gibson

Steps to Consider Before Taking the Next Step.

It is an exciting milestone in a relationship to move in with your partner. Your partner may be moving in to your property, or you might be thinking about renting a property together.  

Whilst seeing a family lawyer can seem less romantic than picking out a new lounge, it can be useful to understand your rights in the event of relationship breakdown, particularly if you own a property or have significant savings or assets such as a share portfolio. 

People often have a misconception that if you own your property prior to living with your partner, you will automatically “lose” 50% of your property when you break up or that you will be able to “quarantine” it in the event of a separation. No relationship is the same and there is no hard and fast rule which entitles your partner to half of your property in the event of a relationship breakdown. Nor may your property interests be protected from a claim by your partner if you separate. 

When dealing with a claim for property settlement following the breakdown of a relationship (whether you are ‘de facto’ or married), the Court will first look at whether it is ‘just and equitable’ to make any alteration of your property interests. The Court then assesses contributions and future needs. 

For example, say you own a property in Canberra with your partner. You bought it 3 years prior to moving in together. During your relationship, you and your partner share finances and your partner starts to help you in repaying the mortgage. You decide to renovate the property and each contribute $100,000 towards improving the property (i.e. your partner is making financial contributions to the property). Each weekend, your partner spends hours out in the garden and does landscaping (they may be considered as non-financial contributions). You then split from your partner 20 years later. 

In this scenario, it may be ‘just and equitable’ to divide your interests in the property and your partner is likely to be entitled to a ‘share’ in your property as a result of their contributions (both financial and non-financial). 

Take another scenario where you owned your property outright prior to the relationship, having inherited it from your parents. Your partner moves in and you live together for 3 years. Throughout your relationship, you and your partner maintain separate finances and your partner makes no contributions towards your property. You ultimately break up after 3 years. In this alternate scenario, the Court may not consider it ‘just and equitable’ to alter your interests in that property as your partner may not have been seen to have made any contributions to it. 

There are a number of factors that may impact on the outcome of these scenarios, including what other assets, liabilities or superannuation are in the ‘property pool’, whether you have children together and each of your ages, health and other future needs. 

Whether you have been dating for 3 months or for a few years, if you are considering cohabitation, it would be beneficial to see a family lawyer to understand how the law operates and the impact moving in together may have on you / your assets.  You can make an appointment with us on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online  with one of our experienced lawyers to obtain advice.  

Author: Anika Buckley

How Long is Too Long? Court Dismisses Property Settlement Application After 30 Years

In the case of Estes & Holmes [2022] FedCFamC1F 267, the court summarily dismissed an application by the wife for an adjustment of property interests.  

The parties had separated 1985 after a 14 year marriage. The parties were involved in family law proceedings in 1988 and in 1989 a hearing occurred without the husband being present. Orders were made adjourning the property settlement proceedings until such time as the husband received his superannuation entitlements, which were the only property of any value at the time of those proceedings. At the time, it was anticipated that the husband may receive his superannuation entitlements in or about 2006. 

The Wife sought to commence proceedings in 2020 seeking orders for an adjustment of property interests. At that time, the parties had been divorced for 31 years. 

The Wife’s application was summarily dismissed, as a result of:

1. The delay in bringing the application. The Wife could have sought to have the 1989 proceedings relisted at an earlier time;

2. The Wife did not offer an explanation for the delay in bringing a fresh application for property settlement (or explaining her reasons for not having sought to relist the 1989 proceedings);

3. The Husband’s superannuation in 1989 was approximately $150,000 but he was now in receipt of the age pension and had minimal property in his name;

4. The Wife was not able to demonstrate that the Husband had been served with the Orders made in 1989 adjourning the proceedings, noting that he was not present at Court on that date, and was not legally represented. 

Although the Court has the ability to grant leave to parties who have applied for a property settlement “out of time”, there is no guarantee that any such application would be successful. In any event, bringing an application out of time results in increased legal costs whilst the Court determines the threshold issue of whether a party should be granted leave to bring such an application. In the case of Skelton & Lindop [2022] FedCFamC1A 47, the de facto wife applied to the Court when the parties had been separated for 2 years and 9 months (9 months “out of time”). 

At first instance, the primary judge dismissed the de facto wife’s application. On appeal however, the first instance decision was set aside, and the Court granted leave for the de facto Wife’s application to proceed out of time. Notably, it had taken over three years for the Wife’s application to be determined, by which time the parties had been separated for 5 years and incurred considerable legal costs, and the outcome of the property settlement itself had not yet been determined. 

What does this mean for you?

 The above cases demonstrate the risks associated with delay in formalising property settlements.

 It is important to know that there are time limits which impact your ability to seek an adjustment of property interests after separation or divorce.   

1. If you have been in a de facto relationship, you have two years from the date of separation to formalise your property settlement by entering into Consent Orders, or to bring an application to the Federal Circuit and Family Court of Australia, seeking orders for an adjustment of property interests.

2. If you are married (or divorced), you have 12 months from the date that a divorce order comes into effect to formalise your property settlement by entering into Consent Orders, or to bring an application to the Federal Circuit and Family Court of Australia, seeking orders for an adjustment of property interests. 

If you are a party to dormant family law proceedings which have been adjourned pending the retirement of one party, or until such time as a superannuation split can be effected, you should seek urgent advice in relation to your circumstances. 

It is prudent to obtain advice tailored to your circumstances from a family lawyer, ideally as soon as possible after separation, in order to preserve your interests. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Margot McCabe

What Happens to Your Superannuation When You Die?

Superannuation is considered separate to your estate, which means special arrangements need to be made if you want to decide where your super will be paid. 

You can nominate beneficiaries for your super by a completing a death benefit nomination, which can be binding or non-binding. Binding death benefit nominations are written directions to a superannuation trustee which set out how you wish for your super to be distributed. If you have a valid nomination at the time of your death, the trustee is bound to follow it. Non-binding death benefit nominations are a written guide as to how you would like your super to be distributed, however the nomination is not binding on the trustee, who has ultimate discretion as to how to distribute your super.

Completing a binding death benefit nomination gives you greater certainty as to how your super will be distributed in the event of your death. If you don’t have a valid nomination in place, the trustee will need to make a decision as to how your super will be distributed, which generally involves investigating your relationships at the time of your death. Each super fund is different, and the decision will need to be made in accordance with the rules of the fund, as well as superannuation law. This can be a lengthy process, so having a valid nomination in place can also reduce delay in making payment to beneficiaries.

Who can I leave my superannuation to?

The Superannuation Industry (Supervision) Act (“SIS Act”) provides that death benefit nominations can only be made to your legal personal representative or a dependant. Dependants include children, spouses and people you have an interdependency relationship with (e.g. close personal relationships where you live together and one or each of you provide the other with financial and domestic support). A number of factors are taken into account when determining whether an interdependency relationship exists.

Parents and siblings generally do not satisfy the requirements of the SIS Act, meaning if you want your parents or siblings to receive your super, you should nominate your legal personal representative as your beneficiary to ensure your super benefit is paid into your estate. The funds can then be distributed in accordance with the terms of your will. 

Death benefit nominations generally lapse after a period of three years, so you should make sure you review your nomination if necessary. Some super funds offer non-lapsing death benefit nominations which do not lapse until you update or cancel the nomination.

It is recommended to review your estate planning arrangements every few years to ensure they still reflect your wishes. You should also consider reviewing your estate planning if there has been a change in your personal circumstances or financial situation. We offer fixed fees to review your estate planning arrangements and can assist you with preparing Wills, Powers of Attorney, and binding death benefit nominations. If you would like to discuss your circumstances and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

Author: Amy Davis

Family Lawyer Property FAQ’s

Navigating a separation is difficult. Whilst every relationship is different, there are a series of questions that clients often ask in their first appointment with a family lawyer. Today, we answer some frequently asked property questions.

What do we do with our joint accounts?

If you have joint accounts, you may have a claim for an equal share of the monies held in that account. How much you are entitled to (and whether you are entitled to any) will ultimately depend on the likely division of your property pool, based on factors including the length of the relationship, your contributions and your respective future needs.

If you are worried about your former spouse ‘emptying’ the accounts, you can contact your bank and ask them to place a dual authorisation on the account (i.e. a ‘2 to sign’ feature) so you can review and authorise any transactions.

It can be prudent to avoid distributing funds from a joint account until you have reached an agreement, however this will not work for every matter as sometimes a party needs to access joint funds to support themselves or the children.

Can I still sell the house before we have negotiated a property settlement?

Sometimes people are concerned about achieving the best possible sale price, particularly in circumstances where there is a decline in the property market. If your property is in joint names, you should usually not sell your property without the agreement (or knowledge) of your former spouse. You might also need to obtain your former spouse’s agreement to sell the property even if the property is in your sole name.

If you both agree to selling a property, you can ask the conveyancers to hold the net proceeds of sale in their trust account. Trust account rules provide that conveyancers will then only release funds on your joint written instructions (similar to a ‘2 to sign’ feature).

What if I don’t know what we own?

We often see people who are not sure about what their property pool includes. This may be where a couple has not shared finances, or where one party has managed the finances throughout the relationship. If your matter is not in Court, you can utilise tools such as the national property ownership search or ASIC searches to understand an individual’s business or property interests in Australia.

Can I just get divorced without a property settlement?

You are not required to go through a formal property settlement before you apply for a divorce. It is important to know that limitation periods will commence upon your divorce, meaning you have 12 months from the date of your divorce to apply for a property settlement with the Court.

There are limited circumstances in which you can apply to the Court after this time, however it is a more costly exercise and there is no guarantee that the Court will allow your application (particularly if you do not have a good reason for the delay).

If you are not married but in a de facto relationship, you have 24 months from the date of separation to apply to the Court for a property settlement.

If you have separated and are looking to negotiate a property settlement, or if you have particular questions about what you should and shouldn’t be doing when it comes to your joint assets, you should seek specialist advice about your particular circumstances. Call us to make an appointment on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers to obtain advice.

Author: Anika Buckley

Can I Change My Child’s Surname?

The Family Law Act 1975 requires that parents endeavor to reach agreement about any major long term issue associated with a child. Major long term issues include matters such as which school to enroll a child, decisions relating to the child’s health, or the child’s religious or cultural upbringing. Another major long term issue specified within the Family Law Act is the surname used by a child.

If parents can’t agree about changing a child’s surname, an Application needs to be made to the Federal Circuit and Family Court of Australia to seek orders for the child’s change of name. The Court also has the power to make orders restraining a parent from allowing or permitting the child to be known by a name other than their surname. Except in cases of urgency, parties to Court proceedings need to participate in mediation before commencing Court proceedings.

In the case of Chapman and Palmer, the Full Court of the Family Court of Australia said that when considering an application for a change of name (or considering whether to restrain the use of a name other than the child’s surname), the Court should have regard to:

1.   The welfare of the child as the paramount consideration;

2.   The short and long term effects of any change in the child’s surname;

3.   Any embarrassment likely to be experienced by the child if the child had a different surname to the parent with whom the child lives;

4.   Any confusion of identity if a child’s name were to be changed, or not changed;

5.   The effect that any change in surname may have on the relationship between the child and the parent that the child has previously shared their surname with; and

6.   The effect of frequent or random changes of name.

Although these factors have often been referred to in subsequent case law, these factors are by no means an exhaustive list of the considerations which the Court can take into account when considering an application for a change of name. Other factors have been considered by the Court, such as the parent’s desire for the child to be known by their original name, the degree of identification that a child has with their parent with whom they share their original surname and the degree of identification with a step-parent or partner of their other parent.

It is prudent to obtain advice tailored to your particular circumstances from a family lawyer. Contact Robinson + McGuinness to make an appointment on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Margot McCabe

Your Defined Benefit Superannuation Pension is in Payment Phase; So Does it form part of the Property Pool in a Family Law Case?

This question was explored in the 2022 case of Preston & Preston [(2022) FedCFamC1A 157] in which the Full Court heard an appeal of final property Orders made by a judge of Division 2 of the Federal Circuit and Family Court of Australia. The trial judge had Ordered a 58.5/41.5 division of the marital asset pool in favor of the Husband – with the Husband’s defined benefit military pension being included as a capitalized asset in the pool. The Husband appealed the trial judge’s decision on the basis that the judge failed to properly consider the nature of his military pension and incorrectly treated it as a capitalized asset in the pool available for division, as opposed to just an income stream.

The Husband’s defined benefit military pension was in the payment phase. The pension was only payable while justified by the Husband’s medical condition, however, both the Husband and the Wife acknowledged it was unlikely the pension would ever be reduced.

At the commencement of the trial, the Wife had initially sought a superannuation splitting Order but abandoned this position throughout the hearing. In her final submissions Counsel for the Wife did not contend for the pension to be counted as a capitalized asset, but anticipated its treatment as an income stream for the Husband. Notwithstanding the Wife’s concession regarding the treatment of the pension, the trial judge still counted the capitalized value of the Husband’s pension as an asset in the pool (even though neither party sought superannuation splitting Orders).

The Full Court found that the trial judge erred in including the capitalized value of the military pension in the asset pool. The capitalized value of the pension formed an integral part of his proportional share of the divided property, notwithstanding he could never liquidate it as an asset and its continued payment was contingent upon an ongoing future review of his medical condition.

The Full Court said:

From [11] “it was impossible to commute the military pension… and neither party ultimately sought a superannuation-splitting order in respect of it… so the expert opinion evidence of having a capitalized value of $638,109… lost its utility”.

At [14] “Her Honour concluded the husband had a significantly higher income-earning capacity than the wife… which in part stemmed from his indefinite receipt of the military pension…”

At [15] “There was no need to ascribe a capitalized value to the military pension when no splitting order was sought in respect of it…”

At [17] “Having been notionally counted as an asset in the balance sheet… the primary judges’ findings necessarily meant that the husband’s 58.5% share of the assets and superannuation incorporates the military pension at its capitalized value of $638,109, even though he does not and never will have that capitalized sum available for his use”.

The Full Court allowed the appeal and the final Orders were set aside. In re-exercising its discretion, the Court Ordered a 50/50 division of the marital asset pool, the difference being that the Husband’s military pension was treated as an income stream and was not included in the marital asset pool available for the division at its capitalized value.

Family law is specialized and complex. If you are separating and considering your options regarding a property settlement with your former partner, including one that will involve splitting superannuation, you should obtain advice from those qualified to assist you.

To make an appointment with one of our specialist family lawyers contact us today at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.

Author: Ellen Russell

When Do You Call in the Experts? Expert Evidence in Family Law

Experts are commonly engaged in family law proceedings to address a gap in the evidence before the Court or to resolve an issue in dispute. Expert evidence is obtained by way of a written report in order to guide the parties to a resolution or to provide guidance to the Court as to the most appropriate outcome, in either parenting or property proceedings.

Expert evidence is frequently obtained in the following circumstances:

1. For an accountant to give an opinion as to the value of a business in property proceedings;

2. For a valuer to give an opinion as to the value of a house or other asset in property proceedings;

3. For a child psychologist to give an opinion about the most appropriate care arrangements for a child or children in parenting proceedings;

4.  For a psychiatrist to conduct an assessment and offer an opinion including a diagnosis as to the mental health and recommended treatment of one or more parties involved in parenting proceedings.

It is not a requirement in each case that expert evidence be obtained, however, it is uncommon for there to be no expert evidence. In property proceedings, if parties are able to agree on the value of assets, then there may be no need for the appointment of an expert.

A Single Expert, being an expert in the Court proceedings, can be appointed either by the Court or by parties to proceedings. One of the purposes of the Federal Circuit and Family Court of Australia Rules is to encourage parties to only obtain expert evidence in relation to a relevant and significant issue in dispute, to limit the costs of parties, and also to limit the risk to parties regularly obtaining expert evidence, or to “expert shop” if they do not accept the expert evidence they have obtained.

The Court Rules aim to reduce the prevalence of a party seeking to put before the Court expert evidence which interests their own case. It is generally preferable to appoint a joint expert, who receives joint instructions and therefore may be more inclined to offer an opinion that is balanced, considered, and will withstand scrutiny, as opposed to an expert who may become biased as a result of only hearing the instructions of one party.

A party may seek to leave to appoint its own adversarial expert, rather than appointing a joint expert. An adversarial expert can only be appointed however in certain circumstances, such as where it is argued the joint expert had insufficient qualifications or expertise in the subject matter about which they are providing an opinion.

The Court is not bound by the opinion or recommendations given by an Expert in Court proceedings. The Court can use its discretion in order to determine whether to rely on the opinion of an Expert, either in whole or in part.

To obtain specialist family law advice in relation to your matter, contact Robinson + McGuinness to arrange an initial appointment. Contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.

Author: Margot McCabe

Spousal Maintenance and Maintenance Orders. What, Why, When, Where, How?

The Family Court has the ability to order that one party to a marriage (or a de facto relationship) pay spousal maintenance to the other if that party is not able to adequately meet their own reasonable needs.

What is spousal maintenance?

Spousal maintenance is the provision of financial support from one party to a relationship with the other (post-separation). Orders for payment of spousal maintenance may be made with the agreement of parties (i.e. by consent), or as determined by the Court. Generally, the provision of maintenance is aimed at enabling one party to meet their reasonable needs, as opposed to meeting discretionary expenditure, or for the provision of luxury items, such as holidays.

The “reasonable need” is generally considered as relating to expenditures such as housing, utility expenses, food, clothing, medical needs, etc.

Why does the Court make Orders for spousal maintenance?

Spousal maintenance may be ordered to be paid from one party to another if the ‘paying party’ is considered to be liable to maintain the other (and if they are reasonably able to do so).

The ‘receiving party’ must be unable to support themselves, as a result of:

1. Having the care and control of a child of the relationship under 18 years of age;

2. Their age or physical or mental incapacity to obtain employment; or

3. Any other adequate reason.

There are a number of factors that the Court can take into account when considering an application for spousal maintenance, including:

1. The age and state of health of the parties;

2. The length of their relationship;

3. The income of each of the parties, and their physical and mental capacity to obtain gainful employment, as well as their financial circumstances generally and financial resources available to them;

4. Whether one party has the care of children from the relationship;

5. A standard of living that is reasonable in the circumstances.

When can the Court order spousal maintenance?

The Court has the power to order that spousal maintenance be paid during a relationship or following separation. In the case of Eliades & Eliades (1981), the Court made Orders to the Wife in an intact marriage. There are time limits that apply as to when a party may seek that orders be made for spousal maintenance, and accordingly, you should obtain advice tailored to your circumstances in relation to a property settlement and/or maintenance as soon as possible after separation.

In terms of the frequency of the payment, spousal maintenance may be ordered to be paid either as a periodic payment (i.e. per week, fortnight, or month), or as a lump sum.

Where can an order for spousal maintenance be made?

Orders can be made for payment of spousal maintenance within Australia, and also in circumstances where a party is living overseas.

A maintenance order made in another jurisdiction may also be registered and enforced in Australia. You should receive advice tailored to your circumstances if seeking to register a maintenance order made overseas. The jurisdictional requirements are complex and vary from one jurisdiction to another, and whether an overseas order can be enforced in Australia is dependent on whether Australia has a reciprocal arrangement with the country where the maintenance Order was originally made.

How does the Court have the power to make an order for payment of spousal maintenance?

The Court has the power to make orders for spousal maintenance pursuant to Section 74 of the Family Law Act 1975, to make such order as it considers ‘proper’.

Adult child maintenance

In certain circumstances, the Family Court can also make orders for a parent (or parents) to pay adult child maintenance to a child aged over 17 years (or to the other parent for the benefit of the adult child). The Court will consider any medical and/or educational issues that may be preventing the adult child from being able to earn an income to support themself. The capacity of the parent being asked to pay the adult child maintenance is also a relevant factor that the Court must consider before imposing any order on a parent.

If you would like legal advice about your specific circumstances, including property settlement or spousal maintenance matters, contact us today at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.

Author: Margot McCabe

Relocation in Family Law Matters: What you need to know

Wanting to move to a new city, state, or country with your children is a common issue that arises in family law matters and is referred to as “relocation”.

So, what do you need to know about relocation matters?

1. If you want to relocate with a child or children, then you should try and talk to the other parent/s about your proposal to relocate. Attending family dispute resolution or mediation can be a useful step to discuss your reasons for wanting to move and to attempt to reach an agreement with the other parent, including what the relocation would mean for the children, for you, and for the other parent.

2. Often if an agreement is reached for the children to relocate with one parent, the children will spend more time with the “non-resident” parent during school holiday periods. If you can reach an agreement about the proposed relocation, it should be formalized by way of Consent Court Orders or a Parenting Plan.

3. If you cannot reach an agreement with the other parent about your proposal to relocate with the children, then you will need to make an application to the Court seeking Orders permitting you to relocate the children’s residence.

4. If you want to stop the other parent from relocating with a child or children, then you may elect to make an application to the Court seeking an order prohibiting the other parent from relocating the child’s residence outside a certain area or region.

5. If you unilaterally relocate the residence of the children without the other parent’s consent or without an order of the Court, there is a real risk that the Court may require you to return the children’s residence to the place that you moved from until the matter can be dealt with at a final hearing. This can cause significant disruption to your life, but more importantly to the children’s lives.

Issues of relocation are difficult matters for all parties, in particular the children and parents who are subject to Court proceedings. The effect of relocation generally means that the existing parenting arrangements, if there are any, will no longer be practicable and so new arrangements will need to be determined. The Court generally prefers to make decisions regarding a relocation on a final basis, after a final hearing, and not on an abridged interim basis.

If you are thinking about relocation with you children, or you want to stop another parent form relocating with your child, make an appointment with us on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers to obtain advice.

Author: Ellen Russell

Multi-purpose documents? Harman Undertakings & sharing the evidence

Following the breakdown of a relationship, you can find yourself facing multiple legal issues, including arrangements for the children, dividing property and in some cases, allegations of family violence arise. It is not uncommon for someone to be involved in proceedings before the Federal Circuit and Family Court of Australia (FCFCOA) (dealing with parenting or property matters), as well as proceedings before the ACT Magistrates Court.

As part of parenting proceedings, the FCFCOA sometimes will make an order for you and the other party to attend upon a psychologist for the purposes of preparing a Family Report. The Family Report is admissible in the FCFCOA proceedings; however you may consider that the report is useful to defend some of the allegations in the proceedings before the ACT Magistrates Court. Similarly, there may be certain evidence (including Affidavits or subpoena material) which would assist you in defending proceedings before the ACT Magistrates Court.

Where documents have been prepared for the purposes of proceedings before the FCFCOA, you are not automatically allowed to use those documents in proceedings outside of the FCFCOA. This is due to an implied undertaking or obligation to the Court (known as the Harman Undertaking), that documents prepared for the purposes of the FCFCOA proceedings will only be used for that purpose.

Separately, section 121 of the Family Law Act 1975 (Cth) imposes a restriction on the publication of any part of family law proceedings which identifies any person that is a party to or otherwise associated with those proceedings. However, this only relates to the voluntary broadcasting of information and does not apply to evidence to be given in Court.

In special circumstances, the Court may grant leave (or permission) for the release of certain documents (or parts of documents) to use in other proceedings (such as criminal or civil proceedings). The Court will consider whether there are ‘special circumstances’ (or a legitimate reason for the release of the document(s)) and whether there is any injustice caused to a party in providing that document.

You must make an application to the Court for leave to be released from the Harman Undertaking.  Where there is an application for documents to be released to the ACT Magistrates Court, it is likely that you will be able to argue that the document will remain confidential if it is just being released to the Magistrate. You should also consider whether you need a full document, or whether certain paragraphs of that document will be sufficient for the purposes of defending or supporting your matter before the ACT Magistrates Court.

In any event, it is important for you to seek advice from a lawyer if you wish to use certain evidence before the FCFCOA in proceedings before the ACT Magistrates Court. A lawyer can assist you with assessing the probative value of that evidence, and the process of obtaining the release of that document. Robinson + McGuinness is available to assist you with your family law matters and personal protection matters, including applications for release of documents.

If you would like advice in relation to your family law matter, contact our office at (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.

Author: Anika Buckley

Superannuation and Pensions in Property Settlements in Australia

In most property settlements, each party will have superannuation entitlements with one or more superannuation funds. After the breakdown of a marriage or de facto relationship, it is prudent to obtain advice as to whether to seek an adjustment of superannuation interests, including pensions in payment phase.

Is it necessary to value superannuation?

One of the first steps in the property settlement process is to identify and value all of the assets, liabilities and superannuation owned by each party, or in which they have an interest. It is generally not necessary to value superannuation funds, except where one party has an interest in a defined benefit scheme or fund. The value of a defined benefit fund is determined by reference to a number of considerations, such as the salary of the member spouse over a certain period of their employment, and other factors such as age and gender.

It is prudent to value defined benefit interests in superannuation, so that parties negotiating a property settlement have certainty about the value of superannuation interests.

Can superannuation be split by the Court?

The Court has the power to order that superannuation entitlements, and pensions, be split by a superannuation fund. Before the Court can order that a superannuation interest be split however, the Court must be satisfied that it is just and equitable for there to be an adjustment of the superannuation pool.

Superannuation can also be split by entering into a Superannuation Agreement or Binding Financial Agreement pursuant to the Family Law Act.

What is the effect of a superannuation splitting order?

A superannuation splitting order could provide for three different outcomes of a superannuation split:

1. To create a new membership with the superannuation fund for the incoming spouse, where the superannuation interest is held;

2. To rollover the superannuation interest into another fund; or

3. To payout the superannuation interest as a lump sum payment.

Superannuation splits must occur in accordance with the Rules of a superannuation fund. For example, some superannuation funds will not permit a non-member spouse to make employee or voluntary contributions to their superannuation fund, whereas the member spouse may be permitted to make those contributions to their own superannuation fund.

How is superannuation treated in a property settlement?

In most cases, a superannuation interest will be treated as a capitalised asset available for division in the property settlement.

This approach is not appropriate however in cases where a party has an entitlement to a non-commutable invalidity pension, which is a pension that is not able to be split. It is well-settled in case law that as such pensions are not able to be split, they should be treated as a permanent and ongoing financial resource available to a party as an ongoing income stream, as opposed as being treated as a capitalised asset which is available for division.

Superannuation splitting in family law matters is a highly specialised and technically complex area of law. You should seek specialist advice about superannuation splitting if you are considering it as part of a property settlement with a former spouse or as part of a pre-nuptial agreement, known as a Binding Financial Agreement.

If you are seeking advice in relation to property settlement matters, contact us to arrange an appointment on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.

Author: Margot McCabe

Are you still in a de facto relationship if you’re not living together

Fairbairn v Radecki [2022] HCA 18

The 2022 High Court decision of Fairbairn v Radecki [2022] HCA 18 considers the meaning of “breakdown of a de facto relationship” as per s90SM of the Family Law act 1975.

The parties to the proceedings commenced a relationship in 2005. In 2010, they entered into a formal agreement to keep their assets separate, including that the de faction wife’s home was to remain her property. This was considered to be a fundamental feature of the parties’ relationship.

By mid-2017, the de factor wife was diagnosed with dementia. On the advice of her doctor, she executed and enduring power of attorney in favour of her children from a previous relationship. Shortly after, notwithstanding the wife’s diminished capacity, the de facto husband encouraged the wife to revoke the existing power of attorney, and a new power of attorney was made in favour of him and the wife’s brother. The husband also arranged the wife to execute a new will that was more favourable to him than the wife’s previous will.

In 2018, the NSW Civil and Administrative Tribunal (‘NCAT’) appointed the NSW Trustee and Guardian (‘the Trustee’) as the de facto wife’s guardian and financial manager. NCAT also revoked the power of attorney in favour of the de facto husband.

In March 2018, the wife was moved into an aged care home. The Trustee sought to sell the de facto wife’s home to cover the costs of her ongoing care, however this was opposed by the de facto husband. The Trustee subsequently made an application to the Federal Circuit Court of Australia (as it was then known) seeking Orders for a property settlement.

The primary judge held that the parties’ de facto relationship had broken down by no later than 25 May 2018. The Court found that the de facto husband’s conduct during the demise of the wife’s mental state, was inconsistent with a “fundamental premise” of their relationship, being the strict separation of assets.

The de facto husband appealed the primary decision to the Full Court of the Family Court of Australia. The Full Court overturned the primary Judge’s decision, finding that there was no breakdown of the de facto  as the de facto husband’s conduct was not fundamentally inconsistent with a continuing de facto relationship.

The Trustee (on behalf of the de facto wife) appealed the Full Court’s decision, to the High Court. The Trustee attempted to argue that the parties’ relationship had broken down when the wife moved into an aged care home, arguing that de facto relationships break down when parties to the de facto relationship stop living together. This was rejected by the High Court. The Court held that the term “living together” means sharing a life together as a couple and must be “construed to take account of the many various ways in which two people may share their lives together in the modern world” [33].

Notwithstanding this, the High Court agreed with the primary judge’s finding that where one party to a de facto relationship acts fundamentally contrary to the interests of the other party in relation to the property of the couple, it is possible to conclude that the mutual commitment to a shared life has ended.

The Court noted that keeping their assets separate from one another was an “essential feature” of the parties’ relationship. By 2017, the de facto husband began to act as if he were no longer bound by this agreement. On this basis, the Court upheld the primary judge’s finding that the de facto relationship had broken down by no later than 25 May 2018.

Family law is complex and you should seek specialist advice if you, or a family member, find yourselves in a situation where you may benefit from advice about your entitlements, rights or responsibilities.

If you would like to discuss your matter and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.

Author: Ellen Russell

What are the risks of a poorly prepared Family Violence Order

Being involved in a family violence matter, be it in place for your protection or against you, is a complicated and emotional process. In the ACT, an applicant is able to obtain an interim Family Violence Order, for their immediate protection, the protection of certain personal property, and / or for the protection of children in their care, without any notice to the person against which the orders applies. They are often obtained without the benefit of legal advice about their impact on the specific circumstances of that particular relationship.

This can often lead to clauses within an interim FVO that are ineffective, or clauses omitted that should have been included to ensure Police are able to properly pursue any allegations of breach. While there is the ability to amend an interim FVO, unless it is particularly urgent, the amendment is often dealt with when the Court considers whether or not to make a final Family Violence Order. This can be months after the interim FVO was applied for and granted.

An ineffective family violence order may not only fail to do what was intended, which is ensure the protected person’s safety, it can also impact on related criminal or family law proceedings. For example, a family violence order that provides for no exceptions for contact, where the applicant and respondent share children. While no contact family violence orders can and are made, commonly, there are strict exceptions included in a family violence order to ensure a child’s continue relationship with both parents subject to that relationship being free of a risk of harm to that child. If these factors are not considered, or acknowledged by exceptions that permit safe contact, the solutions are:

1. Applying to amend the family violence order in the ACT Magistrates Court – unless it is urgent, there is a risk the amendment will be tacked onto the final hearing, which means there could be a substantial gap in contact between a child and a parent spending time until that amendment application is determined; or

2. Applying to amend, suspend or discharge part or all of the family violence order in the Federal Circuit and Family Court of Australia. While this process may be more effective on an interim (immediate) basis, the cost of filing, the effort in preparing the documents necessary to file, and whether you have complied with the strict pre-action process (subject to any limited exceptions) can turn a simple issue into an expensive one.

While a family violence order is often obtained quickly, with the priority ensuring the safety of the protected person, it is crucial not to forget that they are legally binding and enforceable orders issued by a Court. A poorly drafted or proposed family violence order may end up costing more in time and money than it provided by way of resolving or de-escalating the conflict or safety issues that may be experienced. It is worthwhile obtaining advice prior to applying for a family violence order, or consider engaging a lawyer to prepare for or defend you against a family violence order.  

If you are concerned for your immediate safety, contact 000. If you require safety planning, or wish to discuss whether a family violence order may be breached, contact DVCS on (02) 6280 0900 or the 131 444 non-urgent ACT Police number.

Given the personal and often distressing nature of having to tell your story of family or domestic violence, you may not always be your best advocate.  If you would like to discuss your matter and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online. 

Separation essentials: Nine things to know after separation

9 THINGS TO KNOW AFTER SEPARATION

1. Timeframes are important! If you have been in a de facto relationship, you have two years from the date of separation to formalise your property settlement. If you are married, you have 12 months from the date of divorce to formalise your property settlement. You must be separated for 12 months before applying for divorce.

2. Divorce proceedings are separate to Court proceedings relating to parenting and property matters. The divorce application process is generally a relatively quick and simple process.

3. Delay is risky. It is advisable to formalise a property settlement as soon as reasonably practicable after separation, to ensure that there is not any significant change in the financial circumstances of parties from that which existed during the relationship.

There are also risks associated with delay in parenting matters. For example, if there are unsatisfactory parenting arrangements in place, it can become increasingly difficult to change any “status quo” which may come about, the longer that those arrangements are in place.

4. Transparency is required regarding your respective finances while negotiating a property settlement. All parties are required to provide full and frank disclosure of their financial circumstances, including income, property in their name or possession, and any financial resource available to them. If a party has failed to provide disclosure, there could be scope for the other party to have any Binding Financial Agreement or Court Orders set aside, on the basis of that non-disclosure.

5. You are entitled to obtain independent legal advice, and should do so. Each party ought to obtain legal advice from different lawyers. Your solicitor’s job is to give objective and realistic advice to assist you in resolving any dispute. Anything that you discuss with your solicitor is confidential.

6. Children should not be involved in discussions regarding property or parenting arrangements. It is important for children to be protected from conflict, and not placed in a position where they are exposed to any unkind comments made about a parent or other family member.

7. There are a range of alternative dispute resolution options available to parties, including collaborative law, mediations, arbitration. These alternative options of dispute resolution are aimed at reducing the conflict, delay, and cost which can be associated with more traditional methods of dispute resolution, and of course to avoid Court where possible.

8. Most matters resolve without litigating. Those who have recently gone through a separation are sometimes understandably concerned about the risk of being involved in stressful and costly litigation. The vast majority of people reach agreement without being involved in Court proceedings, and only approximately 5% of matters before the Court progress all the way to a final hearing. Litigation is a last resort, and should be treated as such, unless there are safety issues or in matters of urgency.

9. You, and your loved ones, are entitled to feel safe and if you have any concerns about your safety you should urgently obtain advice, including in relation to the possibility of obtaining a protection order to cease or limit contact with another party.

To obtain specialist family law advice in relation to your separation, contact Robinson + McGuinness to arrange an initial appointment. Contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.

Author: Margot McCabe

International Prenuptial Agreements in Australia

A prenuptial agreement or Binding Financial Agreement (BFA) as they are known in Australia, is a document that sets out how your assets and liabilities will be divided in the event of a separation. A BFA can be entered into before, during or after a relationship.

Prenuptial agreements are common in many different countries and are tailored to the law of each country. If you entered into a prenuptial agreement overseas, you should be aware that it will not automatically be recognised if you are separating in Australia.

For a financial agreement to be binding in Australia, it must comply with the requirements of the Family Law Act 1975.

Part VIIA of the Family Law Act sets out the requirements of a BFA, including:

1. That the agreement be in writing and signed by both parties;

2. That each party obtain independent legal advice prior to signing the agreement;

3. That each party is provided with a signed statement by the legal practitioner who provided them with independent legal advice; and

4. That the signed statement is provided to the other party under the agreement.

Even if an agreement is binding in the country of origin, it may not be enforceable in Australia if it does not comply with the above requirements. In absence of an agreement, the division of property between married couples is governed by section 79 of the Family Law Act 1975, which takes into account the contributions and future needs of each party, among other things. You may wish to inform your lawyer or the Court that a prenuptial agreement exists, but the Court is not bound to follow the terms of the agreement. The Court may, however, take the agreement into account in determining whether orders are just and equitable.

If you would like the terms of your international agreement to apply in Australia, you should enter into a BFA that complies with Australian law. If you have assets overseas, or are a citizen of another country, it is also important to consider the laws of the respective countries to determine how those assets may be dealt with if you separate with your partner. You should obtain specialist family law advice to help you understand how the law applies to your situation.

If you would like to discuss your matter and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

Author: Amy Davis

I don’t understand what my family violence matter is listed for: the case management pathway in ACT family violence proceedings

There has been a significant streamlining of the family violence process in the ACT. Where previously a matter usually ran through a three step process: application, negotiation, hearing; there have been some changes to the pathway that require you to be familiar with, and understand where, the matter is up to.

The current pathway is broadly:

1. Application: A person files an application with the ACT Magistrates Court for a family violence order. If the application includes for immediate protection, known as an interim Family Violence Order, that part of the application is generally listed the same day it is filed. Whether or not the interim Family Violence Order is granted, the matter is then listed for what is called a preliminary conference, which is a form of negotiation. The preliminary conference is usually 4 – 6 weeks from the date of application, to enable the AFP to serve the respondent and make them aware of the proceedings.

2. Negotiation: After the AFP serve the application and interim FVO (if granted) upon the respondent, the parties are required to attend a preliminary conference at the ACT Magistrates Court. This is the respondent’s first involvement in the family violence process. For the applicant, it will be their second or third, depending on whether their interim application, if applied for, was heard on the same day it was filed. The parties will use the preliminary conference to try to negotiate a final settlement of the dispute, failing which, the matter will be listed for a pre-hearing directions. The pre-hearing directions is usually 6 – 8 weeks from the preliminary conference, to enable people to engage lawyers, get legal advice, or start preparing their case for hearing.

3. Pre-Hearing: this is a purely procedural listing, that helps the Court determine how much time and what level of resources need to be allocated to your hearing. There will be an expectation on the parties to know what may assist in resolving their dispute, what Subpoenas or witnesses need to be arranged, how much time the Court needs to allocate to the matter, and whether there is anything relevant the Court needs to be aware of. It could be there are interrelated matters, or mutual applications, that are best dealt with on the same listing date. These are things the Court should be told at the directions, as it may impact when each of the cases are listed for hearing.

4. Hearing: this is the day where the application will be determined and resolved. While the Court will have allocated time for your matter from what it knows at the pre-hearing directions, there will be time allocated to have further negotiations if they will help. You will need to come prepared to run your case. It is important that if you are thinking of engaging a lawyer, and counsel (known as a barrister), you have done so either prior to the pre-hearing or shortly after it occurred. It is not enough time to engage a lawyer the week or the day before. If you realise the day of the hearing that you need further evidence, or there is a witness who you didn’t properly inform to attend, your matter will run that day without them.

There is an expectation on participants, regardless of whether they have legal representation, or have had the benefit of legal advice, to know where their matter is up to, and what they need to do at that stage. A failure to properly prepare your family violence matter could see an order being made, or refused, against your wishes. Given the lead in time to the hearing in the current pathway, it is no longer enough to turn up to the date of hearing having only just worked out a Subpoena needs to issue, or a witness should have been called. There will be several matters listed with yours at any stage of the process, and the Registrar or Magistrate will only have a limited amount of time in which to hear your dispute. While family violence is a distressing and highly personal area of the law, it is still an element of the judicial process and needs to be respected as part of that process.

If you are concerned for your immediate safety, contact 000. If you require safety planning, or wish to discuss whether a family violence order may be breached, contact DVCS on (02) 6280 0900 or the 131 444 non-urgent ACT Police number.

Given the personal and often distressing nature of having to tell your story of family or domestic violence, you may not always be your best advocate.  If you would like to discuss your matter and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online. 

Child Impact Reports

The Court has made an Order for you to participate in a child impact report, so what is a child impact report?

A child impact report is a report ordered by the Court, that provides information bout the needs of the children involved in Court proceedings. The purpose of the report is to provide the Court and the parents with information about the children, their experiences, and their needs, in the context of the dispute before the Court.

The report is prepared by a Court Child Expert, who is a qualified psychologist or social worker. Court Child Experts are employed by the Court and have significant experience working within the Court system and with children from separated families.

The child impact report interviews generally occur in 2 parts over separate days. Part 1 includes interviews with each of the parents, and Part 2 includes an interview of the child or children, so long as the children are of an appropriate age and stage of development. The interviews are fully reportable, which means that nothing that you raise with the Court Child Expert is confidential.

When the Court Child Expert meets with parents and children, they may explore issues including:

1. The current care arrangements for the children;

2. The proposed care arrangements;

3. The child’s relationships with their parents, siblings, and other family members;

4. The presence or risk factors, including family violence, drug or alcohol use;

5. The presence of any mental health issues;

6. The child/dren’s age and development needs; and

7. Any other factor that the Court Child Expert identifies as important, given the circumstances.

Following the interviews, the Court Child Expert will prepare a report. The report will be provided to the Court and then released to the parties. Once the report is released, it is not to be shared or shown to any other person, without the Court’s permission. Its contents will be considered by the Judicial Officer hearing the case and it will form one of the parts of evidence in the case at a Final Hearing.

If you are involved in parenting litigation it is important to obtain specialist advice from those qualified to assist you.

To make an appointment with a member of our team please contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.

Author: Ellen Russell