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Why you should try Family Law Mediation

Resolving a family law dispute is often complex as parties are usually dealing with emotional and psychological barriers that stem from the domestic relationship in addition to the legal issues. Additionally parties can be in different emotional stages when moving forward from the end of the relationship and this can cloud a party’s ability to interact constructively.

Family Law Mediation is an opportunity for parties to communicate their ideas, concerns and proposals to each other in a safe environment. Particularly in instances of high conflict, it is very common for family law mediation to take place in shuttle. This means parties remain in separate rooms and can still communicate their views through the mediator without having to worry about being met with confrontation from the other party.

While a court does not have capacity to address the parties’ emotional needs, family law mediation can be a useful tool in understanding the drivers behind the dispute and what options are available to alleviate this. By undertaking this process, parties can communicate things that they have wanted to discuss for a long time but previously haven’t been able to.  Even if a resolution is not achieved, parties often walk out of a mediation better understanding the perspective of the other party than when they first walked in. This can be instrumental in shifting the relationship dynamic from conflict based to resolution focused.
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Issues of Risk and Supervised Time in Child Custody Disputes: The Re Andrews Principle

Issues of risk in child custody disputes typically arise in circumstances of family violence. One solution that is commonly proposed to reduce issues of risk is supervised time. The purpose of supervised time is to protect the children from any unacceptable risk of harm. Time is supervised by an independent supervisor or a trusted family member or friend.

Supervised time may also be suitable in child custody arrangements where one parent’s caregiving capacity is impaired and supervised time ensures the child’s needs are met.

In some cases supervision is for the purpose of alleviating the resident parent’s concerns if the effect of that concern would have a detrimental effect on the resident’s parent’s ability to care for the child, outweighing any benefit of the child’s access to the non resident parent. This is known as the Re Andrews principle. However, the Full Court recently held in the case of Keane & Keane [2021] FamCAFC 1 that it is indeed an error to assume that in every case where a parent is concerned about the safety of a child in the other parent’s care, that there is an unacceptable risk that the concerned parent’s parenting capacity will be adversely impacted. A concerned parent is not automatically entitled a right of ‘veto’ about whether a child should spend time with the other parent. Ultimately, the primary consideration will be whether it is in the best interests of the child and each case will be different depending on the circumstances.
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How Do I Get Equal Child Custody of My Kids?

An equal time arrangement for children is typically called a “week about” arrangement. That arrangement involves the children spending one full week with one parent and then one full week with the other parent on an ongoing basis. Sometimes an equal time arrangement may take other forms across a fortnight or month arrangement such as the children spending Monday to Thursday with one parent and Friday to Sunday with the other.

When deciding on child custody arrangements, the primary consideration should be the best interests of the child. How will the children cope spending a week away from the other parent and the shifts in household over the school term? Is the arrangement reasonably practical and are both parents able to communicate with each other?

If your matter progresses to the Court, the Court may consider some of the following when deciding whether child custody should be equal in your family.

Factors in Favour of Equal Time
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How Effective is my Will?

I am hearing about all these claims against estates – how effective is my Will?

Although claims against Estates get coverage in the media, most Estates are in fact completed on the basis of the wishes of the deceased in accordance with their Will.

It should be remembered the starting point at law is that a person is entitled to leave his or her estate to whoever they choose. A person has freedom to choose their beneficiaries – whether they be family members, other persons or their favourite charity.

Claims against estates under the “family provision” parts of succession law allow a limited group of people to seek provision out of an estate if they were left out or feel greater provision should have been made for them.

In simple terms, these “eligible persons” are spouses, de facto partners, children (including adult children) and grandchildren or members of the household who were dependent upon the deceased. But they must convince the Court why the claim should be entertained.
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Mirror Wills and Mutual Wills

Mirror Wills and Mutual Wills – Clearing up the confusion

Mirror Wills and Mutual Wills – they both start with “M” but what is the difference?

Mirror Wills (or reciprocal Wills) are very common between spouses or people in long term relationships.

Each party makes a Will “mirroring” the other’s Will. The Wills often leave everything to each other (other than any specific gifts such as  jewelry or other personal items) and then to their children if one has already died.

Mirror Wills reflect that the parties have common interests. Mirror Wills have the advantage of simplicity. Also, they do not unduly hamper the survivor who can change his of her Will to take account of changing circumstances.

Mutual Wills are a contract between two people to make Wills on binding terms. The terms usually provide that one party can change their Will with the prior consent of the other but not otherwise.

If one party dies, the contract will be binding on the survivor. The long established legal principle is that “the first that dies carries his part into execution and the Court afterwards will not permit the other to break the contract”.

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Mandatory Code of Conduct for Commercial Leasing

NSW Government re-introduces the National Cabinet’s Mandatory Code of Conduct for Commercial Leasing

On 13 August 2021, the NSW Gov­ern­ment announced it will rein­tro­duce the Nation­al Cabinet’s Manda­to­ry Code of Con­duct for Com­mer­cial Leas­ing man­dat­ing rent relief for eligible ten­ants impact­ed by Covid-19.

The Retail and Oth­er Commer­cial Leas­es (Covid-19) Reg­u­la­tion 2021:

  • will be extended until 13 January 2022 (previously due to expire on 20 August 2021)
  • requires the lessor to renegotiate the impacted lease with the lessee in accordance to the principles set out in the National Code of Conduct. The Code of Conduct requires landlords to provide rent relief in proportion with their tenant’s decline in turnover. At least 50 per cent of the rent relief must be in the form a waiver, and the balance a deferral.
  • prevents a land­lord from evict­ing or lock­ing out a ten­ant for cer­tain breach­es unless they have first rene­go­ti­at­ed rent and attempt­ed mediation.

The Reg­u­la­tion will apply to com­mer­cial and retail ten­ants with a turnover of up to $50 million who are impacted lessees, that is, they qualify for the COVID-19 Microbusiness grant, COVID-19 Business Grant or JobSaver Payment.
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Family Law: The Role of Accountants in the Family Court

Often, a trusted accountant can be the first person someone speaks to when a family law problem arises. Beyond that point however there remains a significant role that can be played by accountants as the family law matter progresses.

The majority of separated partners utilise private mediation or participate in mediation within the Court process in an endeavour to work through a practical agreement to resolve their property and other financial issues.

When it comes to property, while the possible terms of a Court imposed and ordered property determination are limited, that is not the case where the parties can reach their own agreement.

With the popularity of self managed super funds and prevalence of small to medium businesses, lawyers are looking for assistance from accountants, (either as a single expert) or the trusted family accountant to help construct the terms of the family law property agreement.

An agreement which has arisen from negotiations can include more flexible terms that are more suited to the particular individuals to the agreement. This is particularly the case in family law financial matters.
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Why should I not do my will online?

Would you feed your medical symptoms into an online form and have your condition diagnosed without seeing or speaking to anyone? Just as importantly, would you entrust your estate planning to someone who has not met you and knows only about you what you have provided to them? You may think you know how your estate should be distributed after you die, but you won’t know the legislation, the probate rules or the case law that affects Wills and Estates. Your Lawyer will.

Each client’s personal circumstances are particular to them. An online form is no substitute for a consultation with an experienced estate planning lawyer. There are many circumstances that need careful consideration and advice including:

  • second marriages, or
  • that you own your property as joint tenants or tenants in common? Do you even know how your property is held? or
  • what forms part of your estate and what does not? or
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