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The Presumption of Equal Shared Parental Responsibility – What this means and how it affects your child – Child Custody Lawyer advice

The presumption of equal shared parental responsibility is a consideration of the Court when determining child custody applications. The “best interests of the child” is an enshrined consideration under Australian law and is the foremost consideration in child custody cases. As such, the Act set out under section 61DA (1) that it is ‘in the best interests of the child for the parents to have equal shared parental responsibility for the child.’ It is important to note however that this presumption looks to shared responsibility, not shared time. Furthermore, it requires both parents to make joint decisions about the long-term considerations for the child. Therefore parents are required to make a genuine effort to consult with the other parent and come to a general consensus about such decisions. This is all in the best interests of the child.

The Court’s presumption applies to interim and final orders.  There are circumstances where this presumption does not apply (s61DA (3)). Such circumstances are specific and the presumption will not apply if the Court finds there are reasonable grounds to believe that a parent (or person living with the parent) has engaged in either abuse of the child or another child who was a member of the parent’s family at the time or in family violence in general (s61DA(3)).
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Family Law Lawyer advice on the effect of death on property proceedings

The law often deals with unforeseen events in the course of Court proceedings under the Family Law Act. If the other party in your proceedings dies before property proceedings are completed, then your family lawyer will inform you of Section 79(8) of the Family Law Act.

The Court will look to this section if in your case, the other party (your ex-spouse) passes before property related proceedings are completed. It is important to know that under the relevant section of the statute (79(8)(a)) any proceedings which have commenced by a family law lawyer before the person passes can be continued by or against the personal representative of a deceased party. This appointed representative would then continue the case on the deceased’s behalf. The Court may make the property order it would have made had the deceased party not died, and only if the court deems it appropriate to do so. Such a property order would still be enforceable by or against the estate of the deceased party. The Court considers the appropriateness of an order to be made after the passing of one of the parties according to the case of Erdem & Ossay. If you are worried about the state of your own health or that of the other party it is advised that you inform your Family Law Lawyer as soon as possible in order for your legal representative to make necessary arrangements and decisions in your case.
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The Consequences of Escaping Debt in Family Property Proceedings

If you or your former spouse owe a significant sum of money to a person or company known as a creditor, you may be wondering how this will be dealt with in your family property proceedings. Some have attempted to transfer property from one spouse to another in a bid to protect their property from a creditor’s claim. Our family law lawyers can provide some guidance on what you should do if you owe money to a creditor and the consequences for non-disclosure.

During your family property proceedings, there is an obligation on both parties to disclose any significant creditors or any significant claim against them by a third party to the Court. This includes Applications for Orders made by consent. In circumstances where a Family Court Order would prevent a creditor to recover their debt, your family law lawyers may need to give the creditor notice of the Family Court proceedings who are then provided the opportunity to intervene in the proceedings and seek their own orders to protect their interests in having their debt paid.
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When Can You Commission Your Own Expert Report – Family Law Lawyers Know How

In circumstances where there is an issue that is contested in family law proceedings, parties may look to obtaining a single expert report from an expert who is instructed by both parties’ family law lawyers to provide evidence on the issue. Common examples of an expert report include a valuation report to determine the value of the family home or one party’s business.

In the recent Family Court case of Rigby & Kingston (No. 2) [2020] FamCA 467, one of the issues in contention was whether the Husband was underpaid for his work when he was employed as a contractor. The Wife’s family law lawyers had directly invited the Husband on three separate occasions to engage a jointly appointed expert. The Husband did not agree to the Wife’s propositions. In that event, the Wife’s family law lawyers had commissioned their own report with instructions solely from the Wife to provide evidence on whether the Husband was being underpaid.
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Family Court Finds A Way to Get out of Binding Child Support Agreement during Covid-19

In the recent case of Martyn & Martyn [2020] FamCA 526 the Family Court considered a matter where the parents had entered into a binding child support agreement in 2012 which the father’s child support lawyers sought to set aside due to Covid-19.

The 2012 Agreement involved the father paying the mother a sum of $1,350 per month with a 2% increase each year.

The father currently owns and operates a business which supplies products to international businesses. Due to cross-border restrictions and social distancing measures, the father’s company was significantly impacted and he claimed that the business activity dropped by 90%. The father’s child support lawyers argued that as a result, his financial circumstances had been significantly worsened due to the limitations on international commerce during the Covid-19 pandemic.

According to Family Law, a Child Support Agreement may be set aside if exceptional circumstances have arisen that would cause hardship to the payer.

Ultimately, in this case, the Family Court was satisfied that the outbreak of the COVID-19 pandemic was an exceptional circumstance and that the father would suffer hardship. The Binding Child Support Agreement of 2012 was set aside and the father was not required to pay the child support amount in the Agreement.
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When will the Court appoint a lawyer (an ICL) to represent the interests of your children?

In complex parenting matters the before the Court the divorce lawyer may ask the Court to appoint an ICL. The Court itself may decide to appoint an ICL- that is a lawyer for your child or children.

A family Law case decided by the Court in 1994 is often relied upon by both the Court and the divorce lawyer to assist in determining when an ICL should be appointed.

This 1994 case known as Re K was a decision of the Full Court of the Family Court.

Re K suggested that where one or more of the following factors apply to the case, the Court should consider the appointment of an ICL:

  1. Where there are allegations of child abuse, whether physical, sexual or psychological.
  2. Cases where there is an apparently intractable conflict between the parents.
  3. Where the child is apparently alienated from one or both parents.
  4. Where there are real issues of cultural or religious difference affecting the child.
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What are the other options to address delays in the Family and Federal Circuit Court?

The Family Law Act provides that a property dispute of the parties can be referred to Arbitration for determination on a final basis.

A divorce lawyer will advise that arbitration is the process whereby the parties agree that a Family Court or Federal Circuit Judge will not hear the financial dispute but that it will be determined by an appointed and qualified Arbitrator.

A divorce lawyer can give suggestions as to an arbitrator who would be specially qualified and accredited. Arbitrators are usually lawyers or Barristers who have had significant experience in the Family Law field.

The divorce lawyer will advise that there are limitations upon Arbitration which are as follows

  • Each party must consent to the referral of the case to the Arbitrator rather than the case being determined by a Judge
  • Each party must be prepared to meet the costs of the Arbitrator, usually in equal shares
  • Issues of parenting cannot be referred to Arbitration
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Introduction by the Court of the Discrete Property List

A further option introduced by the Federal Circuit Court to alleviate Court delays is the discrete property list.  A divorce lawyer can advise you about this option.

Cases in the discrete property list are managed by a Registrar rather than the case having multiple preliminary listings before the Judge. A divorce lawyer appears before the Registrar to seek Orders to ensure that the issues in dispute can be quickly defined and disputes about the provision of disclosure documents and valuations can be quickly solved.

To ensure that property cases do not fall into a hole and become “stalled” if any dispute arises in defining the property pool or in either party obtaining financial records that may be required; the case can be quickly relisted by a divorce lawyer before the Registrar in order to resolve the dispute or order the provision of the document if applicable.

Sometimes it is necessary for the divorce lawyer to seek the Registrar’s leave to issue a subpoena.
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