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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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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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Divorce Lawyer Explains the Steps You Can Take if You are Unhappy with Your Final Orders

If you are not satisfied with your Final Orders made by the Court, your divorce lawyer can provide you with some advice about your options of an Appeal. Appeals must be filed within 28 days of the Orders being made.

However, the filing of an appeal does not automatically stop the obligations contained in the Final Orders. As such, your divorce lawyer may advise whether it is appropriate to file an application to stay the Final Orders. If the application for a stay is successful, the Final Orders will not operate until the appeal is decided.

The application for a stay of the proceedings will depend on whether the stay is necessary to preserve the subject matter of the litigation. For example, is there a risk that there will not be any money left over to make a pay out if the appeal is successful. There will need to be some kind of exceptional circumstance.
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Innovations in the Family Court – Responses to Emerging Challenges

The year of 2020 has presented a multitude of challenges to the Family Courts of Australia. We have seen the Family Court respond to these challenges swiftly and boldly to ensure that Australian families are supported through the Family Law system in these difficult times. See below for some insight into some of the Court’s commendable innovations including:

  1. The Virtual courtroom;
  2. The COVID-19 List; and
  3. The Lighthouse project

The Virtual Court Room

In response to the COVID-19 restrictions and social distancing rules, the Family Courts are now operating on a virtual basis and are conducting Court hearings using two main platforms:

  1. Video conferencing via Microsoft Teams; and
  2. Telephone conferencing

This introduction of the virtual Court room has been bolstered by the implementation of an Online Court file which allows lawyers and litigants to file and access Court documents online.

Although hearings are now taking place virtually, the formalities of usual Court room etiquette and behaviour remain an expectation.
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To Be or Not to Be – Our Family Law Lawyers Explain the Requirements of De Facto

Our Family Law Lawyers know the importance of obtaining instructions about the nature of your relationship and whether it meets the legal requirements of a defacto relationship.

In the recent case of Bava & Chaudry [2021], the parties had a relationship of about 2 and a half years. They were not married.

The Applicant’s family law lawyers filed an application seeking property orders on the basis that she believed the parties were in a de facto relationship. The Respondent, on the other hand, argued that the parties were never in a de facto relationship, despite the relationship spanning over 2 years.

The question that the Court was required to consider was whether a de facto relationship existed at all. That is, whether having regard to all the circumstances of their relationship they had a relationship as a couple living together on a genuine domestic basis.

The Court considered the following factors put forward by the family law lawyers:
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What You Need to Show the Court to Obtain a Divorce

In order to obtain a divorce, there are certain requirements depending on whether you have children under the age of 18 years. If you do have children under the age of 18 years, your divorce lawyer will need to demonstrate to the Court that:

  1. Proper arrangements in all the circumstances have been made for the care, welfare and development of the children, or
  2. That there are circumstances by reason of which the divorce order should take effect even though the court is not satisfied that such arrangements have been made.

There is a positive obligation on the Court not to allow divorce orders to take effect unless proper arrangements have been made for the children. Your divorce lawyer will consider the following factors when advising you: whether any child support is being paid, whether both parents are spending time with the children, the health of the children and whether they are attending and progressing in school.
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