Trial Separations

Are you thinking of a trial separation?

Have you and your partner or spouse started a trial separation?

Making the decision to separate, whether as a trial or permanently, is not a decision you make lightly.   And the decisions you make regarding your separation, even a trial separation, can have long-term consequences for you and your family.

When is a Separation a Separation?

There are 3 elements of separation:

  1. Having an intention to separate. Where one or both parties have decided to separate;
  2. Communicating the intention to separate to the other person. This can be verbally or in writing; and
  3. change in behaviour such as:
    – moving out of the home or moving into separate rooms/parts of the home;
    – opening and operating separate bank accounts;
    – not sharing meals together;
    – not undertaking usual or regular domestic tasks for the benefit of the other person;
    – not spending time together in or out of the home;
    – advising children, family members, friends and/or other third parties that you have separated, especially if you continue to live in the same home.

Sometimes these 3 elements coincide however this is not always the case as a separation can be gradual over a period of time. A decision to separate can be formed months or even years before that intention is communicated to the other party or spouse. And a change in behaviour can occur prior to the intention being formed. There are no “textbook” cases in separation. Each relationship is different.

It is also important to understand that some parties cannot, or choose not, to physically separate and instead decide to live separately under the one roof with their former partner or spouse. Provided that they can prove the abovementioned 3 elements of separation then they will be considered to have separated.

Things to consider prior to any trial separation

  1. Where will you live? Are you going to stay in the home in another room or are you going to move out? There might be very good reasons to leave the home, such as domestic violence or abuse. However if this is not the case and you are not afraid for your safety then deciding to leave the home can have serious consequences down the track for you and your children both financially (including when you are negotiating a property settlement with your former partner or spouse) and in practical terms. Always get expert family law advice before deciding to leave your home.
  2. Will the trial separation affect the “status quo”? Will existing arrangements change or a new precedent be set? Thinking about the impact that your decisions will have for you and your children and on day-to-day “household finances” is really important.
  3. What decisions have been made about cash-flow during your trial separation? Have you agreed that your partner or spouse will keep paying some or all of your expenses? What happens if they change their mind once you have commenced the separation? Can you afford to support yourself and your children if necessary? Will the decisions and arrangements you have made before commencing the trial separation still work for you in 12 months time if the separation is not “temporary” after all? On the flip side, if you have agreed to help you partner or spouse pay for their expenses when they move out or you trial a separation, will you be able to maintain this promise in the long-term if the separation is not “temporary” after all? What impact will those decisions have on you and your ability to meet your own costs? What if your partner or spouse is able to work but chooses not to because they don’t “need” to work to meet their own expenses? Will you still feel the same way in 6 or 12 months time?
  4. If you own property with your partner you should not make any rash decisions about selling it or changing the way in which the property is held on the Certificate of Title. Instead you should have a discussion with an expert family lawyer about what you can do and the ramifications of making those decisions. This is because undertaking these steps may not be a good idea and can have serious implications for you in the long-term.
  5. Expect the “dynamic” at home to change. If you remain living in the same home as your partner or spouse during a trial separation you may not be able to tell them what to do and may have to “put up” with their behaviour. This might include them entertaining people in the home that you are not comfortable being around, coming home late or not keeping the home in the state you would like. Alternatively if you leave the home you may not be able to control what happens inside the home other than to request that it be kept in a reasonable state of repair.
  6. Who are you going to tell about the trial separation? Who you tell and what you tell them can have a significant impact on things down the track, especially for calculating when your separation actually occurred. If you choose to stay in the home and then wish to get divorced you will need to organise for an Affidavit to be prepared from someone who can give evidence of you being separated.

A Separation Checklist

Some things you should think about doing prior to a separation…

  1. Collect important documents e.g. birth certificates, marriage certificates and passports and place them in safe keeping. Keep a copy of each document handy – take photos of these documents on your phone if you can.
  2. Collect financial documents for yourself and if possible your partner, including:
    -Income Tax Returns and Notices of Assessments for the last three (3) financial years;
    Any employment records you have including employment contracts, recent pay slips and records of leave entitlements;
    – Bank statements including savings and investment accounts, loan accounts (including personal loans, mortgages) and other liabilities (such as credit cards, store finance, hire   purchases, store cards, family loan agreements etc.);
    – Share or investment statements and particulars of all shares in any public company;
    – Records and statements in relation to any entity that you are “associated” with. For companies this includes Articles of Association, Balance Sheets, Profit and Loss Statements and  BAS statements. For trusts this includes Trust Deeds and Financial Statements and details as to whether you are the Appointee, Trustee or any beneficiary;
    – Details of any Real Property owned by either of you including the street address, rate notices etc.;
    – Details of other property owned by you e.g. motor vehicles (a registration certificate is helpful), tools, machinery and furniture etc. together with an estimate of the value of each.     Also particulars of any items disposed of by Sale, Transfer, Assignment or Gift in the period twelve (12) months prior to separation to date;
    – Details for any superannuation account or entitlement in which you or your partner have an interest including recent statements for each and the financial accounts in relation to   any self-managed superannuation fund; and
    – Details of any personal injury claim, inheritance or pending inheritance or other financial resource.
  3. Prepare an inventory of furniture in your home and take pictures of things that are difficult to describe. Things may be removed, sold or destroyed when you move out and it helps to know exactly what was there when you moved out as it can be harder to recall later on.
  4. Open a new bank account and apply for your own separate credit card. Perhaps consider this step with a different bank. Ask for a reasonable credit limit. You don’t have to use it at this stage but it is a good safety net if an emergency arises.
  5. Find out what redraw facilities are available on your bank accounts and also determine what accounts can be operated by one signatory and what accounts require two or more signatories in order to operate. Consider getting advice about what options you have so as to best preserve assets.
  6. Organise a modest cash flow in case of emergency. You might be relying on joint funds in the beginning but you might find that that money “disappears” or is depleted more quickly than you originally expected. At other times unknown or unexpected “debts” and “bills” suddenly appear.
  7. Remain involved in as much as you can with things your children are doing. Take up opportunities to engage in their lives. Consider speaking to your employer about flexible working arrangements that may be available, even if only in the short term.
  8. Compile a list of all people that provide care for your children including doctors, physiotherapists, occupational therapists, paediatricians and the like. Get up to date information about all treatments and obtain copies of all reports.
  9. Touch base with your children’s classroom or preschool teacher just to “check-in” and understand better your child’s progress. Stay updated and involved in their school as best you can.
  10. Don’t vent on social media sites and be discrete with your posts on Facebook and the like. You don’t want compromising photos of yourself or terrible comments said in haste circulating at this time as they can seriously backfire.
  11. Set up a separate confidential email account and change your passwords to any personal email, social media, internet banking and other accounts. It’s a good idea to also restrict access to these accounts from the family computer or other devices accessible by other family members.
  12. Try and get expert family law advice. Confidential, no obligation appointments are available at short notice from our friendly and highly experienced specialist team.

A trial separation can be a way to let everyone get comfortable with a new life and adjust to the huge changes that a separation brings. A trial separation can also allow you to test the “reality” of the decision you are about to make. Sometimes people suggest a trial separation as a way of easing the other person into a permanent separation even if they have already decided the relationship is over.

Trial separations can be confusing, very painful and emotionally fraught. And they can wreak havoc on you and your children if the road ahead is not very clear.

If you are thinking of a trial separation or trying to make decisions about your separation or have recently separated or are currently trialling a separation and don’t know where things stand or need advice about the next steps to take, contact us on 94370010 or enquiries@familylawyersdw.com.au to discuss your matter. Doolan Wagner Family Lawyers offer Accredited Family Law Specialists on Sydney’s North Shore who are experts in all areas of family law.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

Separated and immunising children?

Separating parents can sometimes disagree on an immunisation schedule, or indeed whether to immunise their children at all.  Separating parents can also argue when they are organising overseas travel with their children to a country that strongly recommends immunising against certain diseases.

The Family Court can step in with disputes over immunisation where parents assume differing positions in respect of whether or not to immunise their child.  This is different to situations where parents jointly decide that their child needs a ‘special medical procedure.’ If you or your partner files an application to seek orders that a child be immunised, or seeks an injunction to prevent the other parent from immunising your child, you will find yourself before the Family Court.

What facts do you need to be aware of?

Immunisation can be an issue during the vulnerable period when parents are separating, given that the current immunisation schedule requires children to be immunised at 6 stages between birth and 12 – 14 years.

Immunisation is considered the best way to protect a child from serious diseases.  If most children are immunised this in turn protects very young infants or those who can’t be immunised because of medical conditions.  It is a common belief that the more parents who immunise their children, the greater our ability to control serious vaccine preventable diseases.  According to NSW Health, 95% immunisation coverage is needed for effective disease control.  Currently in NSW approximately 90% of children at 1 and 2 years of age are fully immunised.  Some areas of NSW account for a much lower immunisation rate and these areas are at a greater risk of outbreaks of diseases like measles and whopping cough.  According to the NHPA’s second report on childhood immunisation rates, (National Health Performance Authority, 27 March 2014, Healthy Communities: Immunisation Rates for Children in 2012-2013) the lowest rates of fully immunised five-year-old children in NSW were reported in areas such as Manly (NSW) – ranging from as low as 66.7% up to 83.1% of five-year-old children fully immunised.

The following local areas rated in the lower percentile band of the government’s target of 95% immunisation:

Kurraba Point, Neutral Bay and Neutral Bay Junction          83%

East Killara and Killara                                                                83%

Strathfield                                                                                     82.6%

Centennial Park, Moore Park and Paddington                       81.8%

Annandale                                                                                     81.1%

Manly and Manly East                                                                80.4%

Haymarket, Sydney, The Rocks                                                72.1%

What can you do about a disagreement with your partner on this important decision and when does the Court get involved?

In the situation where you and your partner find yourselves in dispute over immunisation and approach the Family Court for assistance, the court will ask “what is in the best interest of the child? 

In the cases of Duke-Randall & Randall [2014] FamCA 126, Kingsford & Kingsford [2012] FamCA 889 and Redden & Mains [2010] FMCAfam 1338, the Court has determined that, given there were no contraindications, it was in the best interest of the child to be immunised in each of those cases.

The most recent case that has come before the Court is the case of Duke-Randall & Randall [2014] Fam CA 126.  It is an interesting case as it demonstrates the difficulties faced by the Family Court when determining what is in the best interests of the child.  This is especially so when both parents have differing views as to how to raise their children and are therefore unable to reach an agreed position.  In this case, a father from western Sydney won the right to vaccinate his children after a long battle with the mother, who was opposed to immunisation. The Family Court rejected the mother’s claim that the children (12 and 14 years at the time), were at risk due to allergies.  The mother had produced hundreds of documents discussing the risks of vaccination, including the link to autism.  The father had agreed to the mother’s anti-vaccination view during their marriage to keep the peace but since their divorce he had changed his mind.  Unfortunately the father was unable to negotiate with the mother on the issue.  While the parents argued over the issue, the Court restrained both parents from vaccinating the children until the final hearing.  However, Foster J later discharged the order and found that the mother had deliberately delayed proceedings and had ignored directions which lead to the “strong inference that she has done so to suit her own end that the issue as to vaccination be delayed for as long as possible.”

Evidence was accepted from an immunology specialist that both children were healthy and did not have any allergies or any other contraindications to vaccination.  It was recommended that the children be caught up to the routine childhood immunisation schedule.

In another case, Kingsford & Kingsford [2012] Fam CA 889, the Mother sought orders that the child be immunised in accordance with homeopathic principles.  The Mother also sought to injunct the Father from using traditional methods of immunising the child without her written permission.  The Court looked at medical evidence from two doctors as well as from the Mother and Father.  The issue before the Court was whether it was in the child’s best interests to continue to be vaccinated traditionally, or to receive the alternative homeopathic vaccination program.  The Court held that the best interests of the child was the paramount consideration, but not the only consideration.  On the evidence the Court found that the use of homeopathic vaccines had not been adequately and scientifically demonstrated in preventing infectious diseases.  The Court also found that as the child in this case was already 8 years old, the risk of her contracting any diseases, and there being a contraindication, although reduced, was not nil.  Bennett, J accepted that both homeopathic and conventional methods of immunisation did carry some low levels of risk, but found that the risk of harm of a traditional vaccination program was not so great that it would outweigh the risk of infection.

 Contraindication – what does this mean?

A contraindication is a specific situation where a drug, procedure or surgery should not be used because it may cause harm to a person. Contraindication is the opposite of indication, which is a reason to use a certain treatment.  The Royal Children’s Hospital in Melbourne provides the following information regarding contraindications relating to immunisation:

Absolute contraindications include:

Unexplained encephalopathy after a previous pertussis (whooping cough) containing vaccine – no further doses of pertussis;

Anaphylaxis after a previous dose;

Immunodeficiency – for live vaccines such as Rotavirus, MMR, Varicella)

Relative contraindications include:

Undiagnosed neurological illness. This may be a reason to delay immunisation, however most children with neurological illness can be safely immunised;

Temperature greater than 38.5. It is usually wise to defer immunisation if children are acutely unwell with a fever. However, children with minor coughs and colds can be safely immunised.

 “Special medical procedure” v Immunisation

The Court is able to make orders in respect of special medical procedures, based on section 67ZC of the Family Law Act.  However, it is necessary to understand the difference between a ‘medical procedure’, which immunisation falls under, and a ‘special medical procedure’, to be able to determine when it is necessary for the Court’s jurisdiction to be enacted.  The test for considering whether the Court has authorisation for a particular medical procedure is set out in Marion’s Case (1992) FLC 92-293.  Essentially, the Court’s authorisation is required where the proposed medical intervention is:

Invasive, permanent or irreversible; and

Not for the purpose of curing a disease or disability.

Therefore, cases such as those involving sterilisation of intellectually handicapped children, or surgery for children experiencing gender dysphoria are examples of ‘special medical procedures’.  In these examples the ‘special medical procedure’ is so invasive and irreversible that parents in these situations need to obtain the Court’s permission to proceed with the treatment.

In comparing ‘special medical procedures’ to immunisation, clearly immunisation of a child can be distinguished from the above mentioned examples.  A parent does not need the Court’s authorisation to immunise their child.  However, as discussed in the preceding paragraphs, the Court will become involved in immunisation debates when parents cannot agree as to whether or not they immunise their child.

If you and your partner are grappling with immunisation issues and your family is also experiencing a separation, you can be confident that Doolan Wagner Family Lawyers can assist you in navigating the best way forward for you and your child. Call Lisa Wagner on 9437 0010 or email enquiries@familylawyersdw.com.au. We have Accredited Family Law Specialists and registered Family Dispute Resolution Practitioners here to help you.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

Family Law Ryde

Separating?
Needing help with your divorce?
Are you presently experiencing a family relationship breakdown or needing help making custody arrangements for your children?
You may be negotiating with your partner or spouse about how to divide your assets? Doolan Wagner Family Lawyers have been helping people from the Ryde area with their separation for more than twenty years.
Our Accredited Specialist family and divorce lawyers provide premium family law advice and can help you know where you stand and what your rights and your responsibilities are.
Separation and divorce can be really difficult. Feeling confident to take the next step can make all the difference.

Our family law experts have the experience to help you achieve the best outcome possible. We act in all family law matters:

Parenting:

  • Advising people on all issues including child support, the court’s approach and emerging legal issues such as assisted fertility.
  • Drafting court documents and parenting agreements which incorporate informal parenting plans.
  • Acting in parenting disputes which are before the Family Court and Federal Circuit Court. Sometimes these involve an Independent Children’s Lawyer or interested third parties such as grandparents and/or serious allegations of abuse and/or family violence.
  • Providing family dispute resolution and mediation services. We help couples negotiate arrangements for the care of their children in a way that promotes the best interests of the child and the “family unit”.

Financial/property settlements:

  • Requiring the legal transfer of real estate or motor vehicles and/or effecting a payment of settlement monies to a former partner/spouse (including by way of effecting a superannuation split) and/or the physical exchange of furniture or personal effects between the parties.
  • Assisting clients unravel themselves from complicated corporate structures. Sometimes these include family trusts, family businesses and self-managed superannuation funds. This often requires clients to obtain advice and/or participation from other independent professionals e.g. accountants, expert valuers and financial planners. Securing tax effective final settlements and protecting clients from potential risks.
  • Advising people experiencing the breakdown of a de facto relationship. This includes the division of property and/or arrangements for the care of children.
  • Assisting clients to negotiate with their former spouse or partner in relation to spouse maintenance, child support and adult child maintenance.
  • Using alternate dispute resolution processes and collaborative practice including negotiation, round table conferences, mediations and arbitration.
  • Drafting and reviewing settlement documents including Applications for Consent Orders, Consent Orders, Binding Financial Agreements and Deeds of Release.
  • Court representation in disputes which cannot be resolved using alternate dispute resolution processes and collaborative practice and preparing clients for the family law courts process including drafting and reviewing court documents such as Applications, Responses, Financial Statements, Affidavits, Subpoena, interim applications etc.
  • Providing family law advice with regard to estate and succession planning issues, including the provision of advice to protect your family’s assets against claims by third parties (including new spouses and second families) and protecting yourself against a future Succession Act claim.

Divorce Applications including those for couples who have been living separately and apart under one roof and those requiring substituted service on a spouse who is difficult to locate and/or serve.

We have been working with people from Ryde for more than two decades and have come to know that the Ryde community has undergone real change.

As a result of significant residential and corporate developments taking place in and around the Ryde area and the Macquarie Park Corridor, the majority of people in the area are now aged between 20-49 years. Ryde households are commonly made up of dual-income married couples with children. The majority of people living in Ryde are understood to be owner occupiers of property that they have owned outright for some time or own with a secured mortgage.

Many of our clients from the Ryde area are looking for assistance with negotiating their property/financial and parenting matters with their former partners/spouses. They are also looking to obtain advice to assist them to remain living within the Ryde community or in surrounding suburbs such as Macquarie Park, Gladesville, Lane Cove, Marsfield, Epping, Rhodes, Putney, Denistone, North Ryde, Eastwood etc.

Whatever your personal circumstances are, you can trust that we will take the time to listen to your story and hear your needs because we never offer a “one size fits all” approach. We always endeavour to ensure that all advices and directions given by us are tailored to each of our clients’ individual situations and their family’s specific requirements.

Our principal, Lisa Wagner is an Accredited Family Law Specialist who is recognised by the Law Society of NSW. Lisa’s years of working exclusively in the area of family and divorce law means that no matter what your particular circumstances are, she is a leader in the family law arena and will provide you with the best family law advice, support and court representation through the separation and divorce process.

Our strong team of family lawyers have developed a wealth of knowledge and expertise in all areas of family law. Their solid experience gained helping people from all walks of life means that we can guarantee that our family lawyers are best placed to assist you to deal with the often difficult and confronting circumstances that can follow separation and divorce.

Doolan Wagner Family Lawyers are committed to providing the highest quality legal advice to all clients. We pride ourselves on providing sensitive and personal service and support. We appreciate how challenging the separation and divorce process can be and recognise that your children and your financial security are two of the most important things to you.

Obtaining timely expert family law assistance and advice from a specialist family lawyer, either as you contemplate a separation or divorce or promptly following your separation can be critical.

This is because whilst family, friends and other professionals can provide support through the separation process, only a highly experienced family lawyer can give you proper family law advice and assistance in relation to your rights and your responsibilities and help you develop a proper legal strategy.

By getting family law assistance and advice early you can take the next steps on your post-separation journey with certainty. You will be able to confidently approach the family law processes and/or negotiations with your former partner or spouse. Starting to resolve your matter from this position will see you better placed to negotiate with your former spouse or partner. And those negotiations are more likely to secure the most favourable outcome that will work for you and your family.

It may surprise you, but keeping things out of the court arena, wherever possible, is one of our biggest aims.

We know that matters listed before the Courts are delayed. For this reason we will do whatever we can to keep your relationship breakdown as amicable as possible. We can advise you on how best to approach each set of circumstances as they arise. We also won’t contribute negatively to what is already a difficult time for you. We are professionals who will do our best to settle your matter using collaborative practice and avoid the court process wherever possible.

Despite this, as highly experienced family lawyers, we understand that sometimes some families/couples require the assistance of the Family Court to resolve their matter. If you need to approach the Court or are involved in family law proceedings then you can be assured that our experienced family lawyers are very capable of providing you with strong court representation and are best placed to assist you in respect of arranging the preparation and filing of court documents and evidence for such proceedings and/or preparing you for attending Court.

Our Services:

  • Drafting all types of Family Law Agreements
  •  Financial/Property Settlements including drafting settlement documents
  •  Children/Parenting matters
  •  Spouse Maintenance
  •  De facto Relationships
  •  Divorce
  •  AVO/Domestic Violence
  •  Court representation in the Family Court and Federal Circuit Court
  •  A full range of Family Dispute Resolution and mediation services. We can also provide s.60I certificates when required.
  •  Using collaborative processes to achieve optimal outcomes for our clients. See more information about how we use these processes here.

Doolan Wagner Family Lawyers is conveniently located in St Leonards, in close walking distance to the St Leonards train station.  St Leonards train station has regular train services running directly to/from North Ryde, Macquarie Park and Epping via Chatswood.

Our team of highly regarded family lawyers and registered Family Dispute Resolution Practitioners at Doolan Wagner Family Lawyers can help you with all your family law needs. So call us on 94370010 or enquiries@familylawyersdw.com.au

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.