Separation Under One Roof

The COVID-19 pandemic has impacted many areas of our everyday life. In the early days of the pandemic most of us were forced to work from home in the interest of social distancing. One impact of the forced “lock down” and necessity to work from home has been a shift in the normalisation of remote working. Some businesses are questioning what this might mean in the long-term and whether a “hybrid” way of working may eventuate, with people dividing their time between working from home and in the office.

Where does this leave couples separated under one roof? Or people contemplating separating but required to stay living and working separately and apart in the same home?

Firstly let’s look at the three elements required to establish that you have separated:

  1. One party must form an intention to separate;
  2. The intention to separate needs to be communicated to the other party; and
  3. change in behaviour occurs.

 

 

In the context of the current stressors experienced by many families, it is likely that there will be a spike in people forming an intention to separate from their spouse or de facto partner.

There is also likely to be a spike in communication between spouse and de facto partners advising of their wish to separate. Some of those communications will be made in haste and retracted. Others will be heartfelt, considered and acted upon.

So this leaves us with the third element i.e. establishing evidence of a change in behaviour.

Continuing in a bad marriage is different to living separately and apart under one roof after separation.  Things must change in order to prove that you are now separated under one roof.  What sort of things can change and how can you provide evidence of this given the likelihood that “working from home” is here to stay?

 

Ordinarily to show you are separated but living separately and apart, you need to be able to say a number of the following things have occurred:

 

  1. You are no longer intimate
  2. You are no longer holding yourself out in public and to your friends and family as a couple. This is somewhat difficult in the context of social isolation, however consider removing yourself or your spouse from group chats or other social media platforms;
  3. You reduce the amount of shared activities or family outings you attend together;
  4. Tell your family and friends that you are now separating. This is reasonably easy and perhaps more so to the extent that working from home reduces our commute time and leaves us with more time on our hands to connect and communicate;
  5. You no longer provide mutual support and domestic services to each other. The impact of COVID-19 on this particular element is likely to be mixed.  On the one hand it is easy to distance yourself and no longer wash, clean or cook for your spouse (who may occupy a separate part of the home).  However more difficult if you are say relying on the other person to shop for you because you are especially vulnerable or wishing to completely self-isolate to protect a vulnerable member of your household;
  6. Changes to your households’ finances

 

After separation, people may discontinue or limit the use of a joint bank account or a joint credit card.  The rise in unemployment and underemployment and for some an uncertain security of employment may result in this being difficult to achieve.  What do you do?  The most important message is to look to make changes to the current arrangements.

There are a number of circumstances which could arise in family law matters which would require someone who has been separated under one roof to provide information to the Court to establish that separation has occurred. An example of when this may become relevant is in circumstances where a couple has been separated under the same roof and wish to apply for a divorce, they may need to provide extra information to the Court which explains that even though you remained under the same roof, you were indeed separated.

 

As we learn to adapt to a new way of living and as working from home becomes normalised, family law will also adapt and separation under one roof will see evidence of it occurring like it has never done before.

 

Doolan Wagner Family Lawyers offer specialist family law advice in St Leonards on Sydney’s North Shore.  If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or send us an email at enquiries@familylawyersdw.com.au to discuss your matter in complete confidence. We have a team of experienced and caring professional family lawyers available to help you in this difficult time.

 

 About the Authors

Lisa Wagner is Managing Director and Principal of Doolan Wagner Family Lawyers. Lisa is an Accredited Family Law specialist, a Collaboratively trained Family Lawyer and a nationally registered Family Dispute Resolution Practitioner. Lisa has close to 30 years’ experience as a specialist family lawyer, experienced litigator and skilful negotiator in all family law matters.  Connect with Lisa on LinkedIn: Lisa Wagner | LinkedIn

Joanna Wilcox is a Senior Family Lawyer at Doolan Wagner Family Lawyers. Joanna has worked in Family Law since 2016. She has worked as an Associate in the Federal Circuit Court to Judge Dunkley as well as holding the position of Legal Associate to Justices Hannam and Foster in the Family Court of Australia. In this role she worked closely with the judicial officers on complex property and parenting matters, including Hague Convention cases and international relocations. Throughout her time as an Associate in both Courts Joanna has gained invaluable insight into judicial decision-making and is experienced in drafting complex court orders and applying relevant case law to legal argument.  Connect with Joanna on LinkedIn: Joanna Wilcox | LinkedIn

 

Disclaimer:

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.

 

 

Coping with Christmas – tips for separated mums and dads

It’s that time of year again when you’re in Christmas preparation mode – shopping for Christmas presents, sending cards, cooking, special parties, having photos taken with Santa. All this is above and beyond the usual activities on your plate:  sports teams, concerts, work deadlines, homework help.

However, for some families with separated parents, the holiday season can add another layer of stress, an emotionally fraught time which results in sadness, disappointment and discord where children may be caught in the middle.

 

Some of the issues which may arise in the lead up to the holidays can include:

  1. The other parent changing their mind about existing parenting arrangements without consultation;
  1. The absence of Court Orders which set clear boundaries; and
  1. A parent deciding that they will not encourage the children to spend the holidays with the other parent, as a result of recent behaviour (whether such behaviour is reasonable or not).

 

So what happens when disagreements arise which jeopardises your children spending an enjoyable holiday with you? Well there are certain steps separated parents can take to ensure that this does not occur. They are explained in greater detail below.

 

Out of Court

When one party is being difficult, sometimes a simple letter from a solicitor reminding a parent of their obligations pursuant to existing Court Orders (if any) or to the Family Law Act, is enough to put things back on track.

Please remember, at all times, to remain child focused and ensure that the best interest of the child (or children) are of paramount importance.

If you do not want to get lawyers involved, then you are also able to negotiate with the other parent either by yourself or with the assistance of a mediator. Should you take this approach, then you should be mindful of the following when communicating with one another:

  1. Try and come up with a plan ahead of time – Whilst Court Orders are often preferable (given their enforceability), sometimes a parenting plan or a written proposal to the other parent is a helpful way to minimise potential conflict for both parents and more importantly for the children.
  1. Make sure you know where you stand legally – Under the Family Court system, there is no entitlement to an equal division of time for Christmas holidays. Instead, each case is determined on the individual circumstances.

From a practicable perspective, the best thing for both parents is to remember that this time of year is about the children and their happiness, which usually involves the children spending time with both parents (provided it is safe to do so). This means that you will need to try and consider what arrangements will be best for the children ahead of your own interests or feelings.

  1. Communication – Sometimes parents cannot effectively communicate with one another without it resulting in conflict. In those cases, parents should implement a different method of communication such as a communication book or contact via email or text message. Whichever method you decide to use, the aim is to shield the children from the conflict between yourself and the other parent so as to prevent irreversible harm caused to your children’s emotional and psychological wellbeing.
  1. Remain child focused – A lot of family lawyers advise their clients to remain ‘child focused’ and whilst it may seem like an obvious and simple piece of advice, it is the most important and often one concept some parents have difficulty in grasping.

One of the ways you can remain child focused, is to remember that this time of year is supposed to be one of joy and happiness for children and therefore it is important that they are protected from any potential conflict from you and the other parent. By exposing them to any conflict, you risk imposing unnecessary stress on children who may feel torn between pleasing both parents.

If you try to negotiate with the other parent without the assistance of a solicitor or third party and it is unsuccessful, do not give up. Instead, try and engage with either a counsellor or a family law mediator who can assist both you and the other parent in reaching an agreement. By having an experienced mediator or counsellor present it may assist both parents to remain focused on the children and can greatly assist in reaching fair agreement which benefits the children.

 

Going to Court

In the lead up to Christmas, there is a routine influx of parenting applications filed with the Family Court. Commonly, parents (understandably) begin to panic if they do not reach an agreement as to where, and with whom the children will spend Christmas.

Whilst Court is certainly an option available to parents, it should not the first point of call, rather it should be the last resort. More often than not, the best decisions for children are made by the parents rather than a Judge.

In the event an agreement cannot be reached without Court intervention, then it is important to remember that the deadline for filing an Application with the Court to deal with holiday arrangements is usually early in November of each year. While it may be acceptable to purchase last minute gifts, it is not advisable that a last minute approach be applied when dealing with children in the Court system. Of course, each year there are incidents that cannot be foreshadowed and you may be forced to file an urgent application with the Court. Whilst this does not automatically mean that your matter will be heard, there are occasions where the Court hears an application filed at very short notice.

Though it is important to be aware of that those incidents where a Court urgently hears an application filed past this deadline is the exception and not the rule. So if you are planning on making an application, it is important that you contact a family law solicitor as soon as possible and well prior to this deadline.

 

How Doolan Wagner Family Lawyers can help

As specialists in family law, Doolan Wagner Family Lawyers, are highly experienced in dealing in each aspect of family law, including resolving holiday arrangements. Some of the ways we can assist include:

  1. Providing you with advice regarding any parenting proposal you may wish to raise with the other parent, including advising of experienced counsellors or mediators who can assist you;
  1. Writing a letter to the other parent reminding them of their obligations;
  1. Assisting you in the mediation process, including attending mediation with you (if required);
  1. Preparing and filing all necessary urgent family law applications, as well as, attending Court on your behalf; and
  1. Drafting Consent Orders or a Parenting Plan reflecting an agreement you may reach with the other parent.

 

If you or someone you know is facing difficulties with their parenting arrangement for the holiday season, please do not hesitate to contact us on (02) 9437 0010 or send us an email at enquiries@familylawyersdw.com.au to discuss your matter in complete confidence.  Doolan Wagner Family Lawyers offer specialist family law advice, conveniently located in St Leonards on Sydney’s North Shore.  We have a team of experienced and caring professional family lawyers available to help you in this difficult time.

 

About the Authors.

Lisa Wagner is Managing Director and Principal of Doolan Wagner Family Lawyers. Lisa is an Accredited Family Law specialist and a nationally registered Family Dispute Resolution Practitioner. Lisa has close to 30 years’ experience as a specialist family lawyer, experienced litigator and skilful negotiator in all family law matters.

Connect with Lisa on LinkedIn: Lisa Wagner | LinkedIn

Joanna Wilcox is a Senior Family Lawyer at Doolan Wagner Family Lawyers. Joanna has worked in Family Law since 2016. Most recently Joanna held the position of Legal Associate to Justices Hannam and Foster in the Family Court of Australia where she worked closely with the judicial officers on complex property and parenting matters, including Hague Convention cases and international relocations. In this role she also dealt with matters listed under the Magellan Protocol, in which there are significant allegations of family violence and child abuse which are required to be dealt with urgently by the Court.  

Connect with Joanna on LinkedIn: Joanna Wilcox | LinkedIn

 

Disclaimer: 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.

 

Who gets to keep the dog when you separate?

Most animal lovers would agree that our pets form part of our family, so when it comes to the breakdown of a relationship it is important to know how family law determines what happens to our pets.

In the vast majority of cases, separating parties are able to resolve issues relating to pets amicably and by negotiation. In these cases, there is generally agreement as to who had the closer bond with the pet during the relationship, who the pet’s primary carer was, who purchased it and who can make arrangements to continue to care for the pet (i.e. by obtaining pet-friendly accommodation post separation). However, in some cases, a disagreement may arise as to who keeps the pet. This issue is often exacerbated in cases where children are involved as the children have a particular attachment to the pet and are used to it forming a part of their day. The separation from a pet is yet another disruptive and upsetting consequence of the separation of the child’s parents. In these cases, agreements about which parent should keep the pet are required to be negotiated in parallel with parenting arrangements for children. For example, the parties may agree that the pet accompanies the children to the respective homes of each of the parents.

 

What happens if we can’t reach an agreement with our pets?

Family law is generally separated into two categories, property and parenting. The Family Law Act (1975) does not contain specific provision relating to pets. Rather, pets simply fall under the category of “chattels” – or merely, property. This information comes as a surprise to most people, particularly given that in reality, pets constitute so much more than a possession to most pet owners. Unlike most items of property in family law matters, pets are not ordinarily assigned a value and included in the Balance Sheet, unless they hold some objective value derived from their use, for example in breeding or racing. Further, unlike some items of property such as funds held in a bank account, on the face of it there does not appear to be a fair or humane way to “divide” a family pet. However, Orders relating to pets are made as if pets were items of property. As such, there is no provision in the Family Law Act for “care” arrangements to be determined in relation to pets. It follows then that unlike as is the case with parenting Orders, the Court is not required to take into consideration what is best for the pet in determining who should retain the pet in a final determination of a family law matter.

 

Some of the factors the Court does take into consideration when deciding who gets the pet include:

  1. Who was the main caregiver for the pet (both prior to and post separation)? – Who registered the dog, who fed it and took it for walks, who was responsible for arranging vaccinations and vet visits etc.?
  2. Living arrangements – Can the pet live at the accommodation of a particular party following separation, for example rental accommodation?
  3. Who paid for the pet? Was the pet given to one of the parties as a gift?
  4. Who meets the ongoing costs of the pet?

Notwithstanding that pets are considered property and that their best interests are not factored into decisions relating to them, in a recent family law case, the Judge stated that “one would hope, in this neoliberal world that we have not yet come to the point where even love and affection are commoditised”.

 

 

So, who gets to keep the family pet?

In many cases involving pets and children, the court will decide to give the pet to the primary parent. However, orders can also be made providing for the pet to accompany the children in moving between parents’ houses, consistent with parenting orders. Further, in some cases, the Court has made Orders for one parent to keep the pet notwithstanding the childrens’ attachment to the pet where evidence is given regarding the impact of the pet on the wellbeing of the relevant party and the long-term bond between that party and the pet. Family law cases can also take into consideration the cost of owning and accommodating a pet when calculating spouse maintenance payments to the party retaining the pet.

 

 

 

Doolan Wagner Family Lawyers offer specialist family law advice in St Leonards on Sydney’s North Shore.  If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or send us an email at enquiries@familylawyersdw.com.au to discuss your matter in complete confidence. We have a dedicated team of experienced family lawyers to handle your matter effectively and efficiently, providing you with reliable, direct and practical advice.

 

 

About the Authors:

Lisa Wagner is Managing Director & Principal of Doolan Wagner Family Lawyers. Lisa is an Accredited Family Law specialist and a nationally registered Family Dispute Resolution Practitioner. Lisa has close to 30 years’ experience as a specialist family lawyer, experienced litigator and skilful negotiator in all family law matters.

Connect with Lisa on LinkedIn: linkedin.com/in/lisawagnerdwfl

 

Lucy Warhurst is a Senior Associate at Doolan Wagner Family Lawyers. Lucy’s considered, strategic and practical approach to family law litigation intersects with her natural empathy to achieve constructive resolutions for her client’s and their families.  Lucy has extensive experience conducting family law matters before the Federal Circuit Court and Family Court of Australia to the Final Hearing stage and is currently completing her Masters in Family Law.

Connect with Lucy on LinkedIn: linkedin.com/in/lucywarhurst

 

Disclaimer:

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.

 

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 steps you take 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 to separation:

  1. Having an intention to separate. Where one or both parties have decided to separate;
  1. Communicating the intention or wish to separate to the other person. This can be verbally or in writing; and
  1. A 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 long 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 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 still 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 in the home 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 on you and on your children and also on the 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 when you have a trial 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 expenses? 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 each option. Put simply, taking these steps may not be a good idea for you in your particular circumstances 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 your 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 your 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 your 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 ask a witness to provide an Affidavit outlining what they understand the circumstances of your separation to be.

 

Separation Checklist

Some things you should think about 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.

 

  1. 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.

 

  1. 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 surprisingly hard to recall later on.

 

  1. 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 helpful safety net if an emergency arises.

 

  1. 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.

 

  1. Organise a modest cash flow in case of emergency. You might be relying on joint funds in the beginning but you might find that money “disappears” or is depleted more quickly than you originally expected. At other times unknown or unexpected “debts” and “bills” suddenly arise.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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 unflattering comments circulating at this time as they can seriously backfire.

 

  1. 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.

 

  1. 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 allow everyone to feel more 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 firmly decided that the relationship is over.

 

Trial separations can be confusing, very painful and emotionally fraught. And they can wreak havoc on you, your children and your financial security 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 9437 0010 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.

 

 

How To Face Your Separation With Confidence When You’re A Stay At Home Mum

Are you a “Stay at Home” Mum who is thinking about separating or a single mum who has recently separated?

Perhaps you’re worried that your husband or long-term partner is unhappy and may leave the relationship and family home without much warning? If you are or if you know someone who is in this situation then I urge you to keep reading as the following information might be critical.

Everyone going through a separation or divorce feels stressed and a lot of the time very unhappy and worried. Stay At Home Mums who are transitioning to being single mums have unique stresses that they face throughout the separation or divorce processes that hugely impact on their ability to remain strong and get through the ordeal with everything in fact including their children’s wellbeing and their financial security.

If you’re a Stay at Home Mum then chances are:

  1. You have been married or in a de facto relationship for at least 4 or 5 years, probably longer, and all your finances have become mingled with your spouse’s affairs. You are likely to have at least some joint bank accounts, credit card facilities, home loans etc. You may have even been appointed as the secretary or director of your husband’s company (if he has one) or named as a shareholder in a family business. You may also have been named as a beneficiary in a trust that has been established by your joint accountant to legitimately minimise the tax your family has to pay overall each financial year. You might not even completely know what you are or are not named on or what joint assets you part own and/or what joint liabilities you are responsible for. When you start to look around it may surprise you that you don’t have a bank account in your own name anymore, you don’t have any independent money that you control exclusively, you don’t know where income comes from or how the bills are paid, and you don’t even have your own credit card facility and are merely a supplementary cardholder to a credit facility belonging to your husband which can be cancelled at any time by him without any notice to you. In the space of what seems like a blink of an eye, you have become totally and significantly financially dependent on your spouse or your de facto partner.

2. You have dependent and often very young children to look after, usually almost singlehandedly for 24 hours each day, 7 days a week. This is a relentless, exhausting, inescapable (and not to mention often thankless) commitment that simply cannot be forgotten or overlooked. This factor alone impacts enormously on your ability to do a lot of things. In separation and divorce, the two things that children impact on the most are your ability to secure a decent family-friendly job and your ability to earn an income sufficient to meet all the basic expenses it costs to run a household in Sydney. To make matters worse, if your husband has left the family home then he may not be contributing (or maybe under-contributing) to the running of the family home, especially if he is now housing himself and has a second lot of “household” expenses to pay, including rent. Social media is saturated with complaints from single mums about the difficulties of trying to find work that they can do when they have family commitments. Moreover, if you have been a Stay at Home Mum for a while it is likely that the skillset that you had developed pre-kids is now rusty, or maybe even obsolete. This can leave you feeling like you have no option other than taking on a more menial job (which can have greater family-friendly hours) like cleaning or supermarket shelf stacking, or taking on a full-time role and somehow securing affordable (if there is such a thing!) and available (at the risk of sounding repetitive – if there is such a thing!) child care, the costs of which “eat into” your salary. Alternatively, you might contemplate letting your children become “latchkey” kids.

  1. Your housing requirements are significant especially with two or three children in your care, and the costs of housing in Sydney are highly prohibitive for many Stay-At-Home single parents. For example on Sydney’s North Shore, where my office is located, the September 2020 statistics* depict that the median house price for homes was considerable, namely:
  • Lindfield – $2,880,000
  • Ryde – $1,557,500
  • Turramurra – $2,150,000
  • Mosman – $3,700,000
  • Lane Cove – almost $2,375,000
  • Frenchs Forrest – $1,615,000

*Price data from 02 September 2020. Data supplied by Hometrack Australia.

To make matters worse, it is well known that it can be very difficult to rent modest child-friendly family homes in the above areas for less than $900 a week.

For example, Stay at Home Mums facing a separation on Sydney’s North Shore who are looking to set up an independent household have fewer housing options available to them than some other separating couples. The need for and costs of larger dwellings for Stay at Home Mums and single mums are disproportionately expensive on Sydney’s North Shore and overwhelming stressful to secure.

If you are a Stay at Home Mum who has not yet separated but feels that you and your partner have exhausted marriage counselling services then the best thing you can do is plan ahead.

Planning ahead really involves two stages namely:

  1. Creating a short-term plan; and
  2. Creating a “forever” (or “almost forever”) plan.

Stay at Home Mums who are contemplating a separation must seriously consider what they need to do to become stronger and regain some of their independence. Opening up a bank account in your own name is a good start. So too is applying for your own credit card. It is not necessary that you start using this credit facility, but it is really handy to have a credit card in your own name that you can control. It can provide you with an enormous amount of peace of mind. Next you need to do a budget (right down to the nitty-gritty) so you understand the basic monthly costs that you will have and what sacrifices you may need to make to “trim the fat”. Whilst this can be a downright frightening process to undertake it is vital.

Also read: Separation Checklist

Often when you are working on this plan you may start to confuse short term and long-term considerations. Two of the most common mistakes that Stay At Home Mums make at this point are looking straight away at their work options and also at housing – it is the right time to look at these things but it’s not necessarily the right time to act on those options just yet. These issues are vital, but they are long term considerations. Making decisions right now about things that can have long term consequences can result in long term problems. If you haven’t already done so by now you should get specialist family law advice. It may even be wise to consider getting some advice from a financial planner or financial counsellor, especially if you have become rusty in managing your own financial affairs independently. Each of these specialists can give you clear advice and show you reliable strategies to help you achieve short-term and long-term independent success.

It is my view that a lawyer who is accredited with the Law Society of New South Wales in the area of family law is your best resource at this time. One (or sometimes two) appointments are often enough at this stage to help you understand your real position and help to dispel many of the myths and half-truths that you have been hearing “on the grapevine”. It is important to remember that every family, its circumstances, and the nature of the family breakdown are different. Accordingly, well-meaning friends and family members, and even some counsellors, mediators and facilitators, who may be great with a whole range of things cannot really give you clear, accurate legal advice about what your rights, your proper entitlements and your likely responsibilities will be for your personal situation. And, even if they do, you should not rely on it even if it sounds good or makes you feel better at the time. Feeling good just for the sake of it or thinking that you’ve sorted something out when you really haven’t is what you should be striving to achieve in your separation just yet. Having a clear picture of where you stand legally is imperative for your short-term and long-term success.

Most ideas and suggestions work for some people, some of the time and in combination (often but not always) with other steps. But any suggestion that you act on in isolation and without advice, at the wrong time or in the wrong sequence can spell disaster for you and your family. Examples of this are severing joint tenancies, closing joint bank accounts, trying to get partners’ names off tenancy agreements, transferring car registrations, making child support applications and even getting a job packing shelves at your local supermarket. When you are experiencing a separation or divorce it is sometimes difficult to see beyond your own experience and you may find that a perfectly logical idea acted on right now doesn’t always end up working out in the way that you thought it would at the time.

Long term or “almost forever” planning is different for every person and depends on a range of factors which are unique to each person and their family’s circumstances. For example, how tolerant you are of placing your children in long daycare five days per week and/or how much do you value being a Stay At Home Mum who personally cares for her children, or what is your level of willingness to re-train and re-enter the workforce on a full time or part-time basis. All sorts of questions will need to be asked and eventually answered. Is it vital for you to continue to put your career on hold for a long while? Can you even afford to do this?

Stay at Home Mums, including those working part-time, face unique challenges in the separation and divorce process. Getting it right from the start is crucial. Importantly any useful tips, in the wrong sequence, at the wrong time and not in the right combination are not necessarily a good idea.

In conclusion:

  1. “Shared parenting” does not mean equal time – this is especially true when considering what are appropriate post-separation parenting arrangements for children under 4 years of age or in situations where there is a significant distance between mum’s home and dad’s home; and
  2. Mediation and Family Dispute Resolution are processes. They are great alternatives to going to Court for most families, but they do not provide the answers nor do they give advice about what your rights and entitlements are. Alternative dispute resolution processes require both parties to be willing to compromise, a step that you shouldn’t take without knowing what your rights and entitlements are. You wouldn’t buy medicine without getting a script, you wouldn’t choose fashion sunglasses for your children if they needed to see an optometrist for testing and you probably wouldn’t even go on a family bushwalk without understanding something about the weather, terrain and grading. Most of you no doubt get your accountant to prepare your tax returns each year. Only a lawyer experienced in the family law arena, preferably an Accredited Family Law Specialist, can provide adequate family law advice on your rights and entitlements. Your children and your financial security are two of the most important things to you. Don’t confuse Google search information, rhetoric and suggestions from friends, family members or even counsellors and family dispute resolution practitioners as the best advice – they are not trained in the field.

I know that anyone reading this article who is faced with these dilemmas will benefit from a proper initial consultation with an Accredited Family Law Specialist. Don’t waste time with a “meet and greet” preliminary interview or a free chat on the phone. You need to actually obtain quality family law advice which is tailored to you and your family’s needs and circumstances. It will cost you some money but in my view, it is a smart investment in your and your family’s future – now is not the time to gamble with your decision making, for you and your family.

Doolan Wagner Family Lawyers offer specialist family law advice in St Leonards on Sydney’s North Shore. We have a dedicated team of experienced family lawyers prepared to handle your matter effectively and efficiently, providing reliable, direct and practical advice. If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or email at enquiries@familylawyersdw.com.au

About the Author:  Lisa Wagner is Managing Director and Principal of Doolan Wagner Family Lawyers. Lisa is an Accredited Family Law specialist and a nationally registered Family Dispute Resolution Practitioner. Lisa has close to 30 years’ experience as a specialist family lawyer, experienced litigator and skilful negotiator in all family law matters.

Connect with Lisa on LinkedIn

Disclaimer: This post is 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 on (02) 9437 0010.

Q& A | Separation, Child Custody and Parenting

Q&A with Lisa Wagner, Principal and Managing Director, Doolan Wagner Family Lawyers.

 

Are you separating and want to know what’s best for your children?

Here are our trusted answers to some of the most commonly asked questions about separation and child custody.

 

Q: What’s the difference between a Parenting Plan and Parenting Orders?

A: A parenting plan is a written agreement that sets out parenting arrangements for your child(ren). These arrangements are usually determined by you and your former partner privately at a mediation or following some negotiation. If you and your former partner want to vary your Parenting Plan, you are able to do so at any time. However, it is important to note that a Parenting Plan is not a legally enforceable agreement and is not binding on parties.

Parenting Orders are arrangements that have been approved by the Court and as such are binding on both parties. Parties are able to vary the arrangements outlined in the Orders, provided both parties consent.   In the event there is disagreement regarding the Orders, you or your former partner can make an application to the Court seeking that the Orders be varied or set aside. There is a high threshold parties need to satisfy the Court in order to vary or set aside Orders.

 

Q: My partner and I have split up and I want to move interstate / overseas with my kids. And what about travel? Do I need my partner’s permission?

A: The short answer is yes.

There are laws in Australia regarding relocating with children. These laws apply even if there are no formal Court Orders that govern any agreement you and your former partner may have reached regarding parenting. Therefore, if you are seeking to move overseas or interstate with your children, this should be discussed and negotiated with your former partner. Moving overseas or interstate falls under the umbrella of “parental responsibility” as it is a major long-term decision that will impact your children. If there is no agreement, then you may be required to file a relocation Application in the Federal Circuit Court or Family Court.

Additionally, if you and your partner have separated it is best to ask for their permission to take your children interstate or overseas, even if it is only for a short holiday. Providing your partner with notice and an itinerary of travel will assist in reducing any fears your partner has that you may not return the children and is also a good co-parenting approach.

If you intend to relocate or travel with your children without the other parent’s permission, you should seek legal advice prior to doing so.

If your children are taken overseas or interstate without your consent, you should seek legal advice immediately.

 

Q: Can parenting orders be varied?

A: The Court is usually reluctant to vary parenting orders. However, in circumstances where both parties consent to the change or the Court determines it is appropriate to change the Orders, your final parenting orders can be varied.

In order for the Court to vary an existing parenting Order it must be satisfied that there has been a significant change in circumstances. Examples of what constitutes a significant change of circumstances may include one of the following:

  1. If either you or your former partner is seeking to relocate with your children;
  2. If the current Orders were made without all the relevant information having been made available to the Court prior to the making of those Orders;
  3. If you and your former partner have since consented to new parenting arrangements, such as entered into a parenting plan and the current Orders are no longer reflective of the actual arrangements for your children;
  4. If a substantial period of time has elapsed between the Orders being made and the Application being brought;
  5. If there has been allegations of abuse;
  6. If you or your former partner, or one of your children are of ill-health.

If one of the above circumstances applies to you, the Court will carefully consider what is in the best interest of your children prior to varying your parenting orders.

 

Q:  Do I still have to pay child support even though the kids are living with the other parent?

A:  Yes, you do. Whether or not the children live with you or the other parent, both of you are responsible for the financial support of your children. The amount that would be payable, however, is largely dependent upon the number of nights that the children spend with each parent, as well as the parents’ respective incomes.

With respect to meeting this obligation, you or the other parent can obtain an Administrative Assessment from Services Australia (formerly, the Child Support Agency) or alternatively, reach a private agreement amongst yourselves. Should you wish to document this agreement, a Child Support Agreement can be prepared which is registered with Services Australia and sometimes with the Court. Such an Agreement can include not only periodic child support, but also outline how you both will meet non-periodic payments (for example, in relation to the children’s extra-curricular activities, private health insurance, school fees and the like).

 

Q: Do I have a right to see my children?

A: In Australia, the short answer is that you do not have any right grounded in law to see your children. Family law in Australia, governed largely by the Family Law Act 1975 (Cth) (“the Act”) adopts a child-centric approach, focussing on the rights of your children and your responsibilities to your children as a parent rather than your rights as a parent. Your children have a right to enjoy a meaningful relationship with both of their parents. This will usually involve your children spending time with each parent, however there is no rule, presumption or “starting point” that your children will spend equal or “50:50” time with each of their parents. Furthermore, the paramount consideration of the Court in determining a parenting arrangement that is in the best interests of your children is to protect your children from harm or being subjected to or exposed to abuse, neglect or family violence. You have responsibilities for your children however you do not have a right to see or spend time with your children. Your children have a right to have a meaningful relationship with both of their parents if it is safe for them to do so and they will not be at risk of harm.

 

 

Doolan Wagner Family Lawyers offer specialist family law advice in St Leonards on Sydney’s North Shore.  We have a dedicated team of experienced family lawyers prepared to handle your matter effectively and efficiently, providing reliable, direct and practical advice. If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or email at enquiries@familylawyersdw.com.au  

 

 

About the Author: Lisa Wagner is Principal  and Managing Director of Doolan Wagner Family Lawyers.

Lisa is an Accredited Family Law specialist and a nationally registered Family Dispute Resolution Practitioner. Lisa has close to 30 years’ experience as a specialist family lawyer, experienced litigator and skilful negotiator in all family law matters.

Connect with Lisa on LinkedIn: linkedin.com/in/lisawagnerdwfl

 

Disclaimer:

This post is 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 on (02) 9437 0010.

Separation Checklist

At Doolan Wagner Family Lawyers we provide reliable, direct, and practical family law advice. We understand that feelings of stress and overwhelm often arise during a separation and in the time leading up to a separation. We have compiled a Separation Checklist, which outlines some of the things you should consider organising prior to a separation, we hope it provides some assistance to anyone facing a separation.

 

Things you should think about organising prior to your 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.

 

  1. 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.

 

  1. 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 surprisingly hard to recall later on.

 

  1. 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 helpful safety net if an emergency arises.

 

  1. 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.

 

  1. Organise a modest cash flow in case of emergency. You might be relying on joint funds in the beginning but you might find that money “disappears” or is depleted more quickly than you originally expected. At other times unknown or unexpected “debts” and “bills” suddenly arise.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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 unflattering comments circulating at this time as they can seriously backfire.

 

  1. 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.

 

  1. Try and get expert family law advice. Confidential, no obligation appointments are available at short notice from our friendly and highly experienced specialist team.

 

 

 

Doolan Wagner Family Lawyers offer specialist family law advice in St Leonards on Sydney’s North Shore.  If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or send us an email at enquiries@familylawyersdw.com.au to discuss your matter in complete confidence. We have a dedicated team of experienced family lawyers to handle your matter effectively and efficiently, providing you with reliable, direct and practical advice.

 

Disclaimer: 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.

 

Divorce & Family Lawyers North Shore

Doolan Wagner Family Lawyers provide trusted divorce and family law advice and assistance to people on Sydney’s North Shore & North Sydney.

Are you looking for an Accredited Family Law Specialist lawyer on Sydney’s North Shore? Doolan Wagner Family Lawyers are pre-eminent family law solicitors you can rely on. For more than two decades our family lawyers have been assisting people in Sydney with their family law matters.

Our family lawyers’ expert experience and skills are recognised by the Law Society of New South Wales through its Accredited Specialist Scheme.

Our Services

We are expertly placed to assist you in relation to all family law matters including:

  • Divorces
  • De facto relationship matters
  • Same-sex relationship matters
  • Financial/property settlements
  • Parenting matters (including pertaining to assisted fertility issues)
  • Child support & Child Custody
  • Strong court representation
  • Assisted reproduction technology and Surrogacy
  • Some of the Issues Our Clients Face
  • Do you know the difference between a Divorce and a separation?
  • What about the difference between a property/financial settlement and a Divorce?

Believe it or not, although the words are often used interchangeably each of these matters is a very different legal issue with different ramifications. We can help you understand the differences and guide you through the family law process as it applies to your particular circumstances.

  • Did you know that until recently the law treated couples living in a De Facto arrangement very differently from couples who were married?
  • Did you know that the date of your separation can affect how the law applies to you?

If you’re living with someone else and you’re uncertain about your rights, we can help you work out what you’re entitled to.

  • You’ve probably heard a lot in the media about recognition of same-sex relationships and same-sex marriage.
  • Did you know that in recent years there have been significant reforms to the Australian legal framework which have allowed better recognition of same-sex couples and their children?

If you’re contemplating separating from your partner and you’re uncertain about your rights or responsibilities or how this may affect your children, we can help you understand your entitlements.

  • Have you used assisted fertility procedures to help you have a family?
  • Have you used a surrogate or donor to help you create your family?
  • Do you know what your rights and responsibilities are? Do you know theirs?
  • Do you know how your child legal rights may be affected by assisted fertility issues?

Family Law Accredited Specialists are required to undertake continued learning specifically in respect to issues relating to family law. Our divorce solicitors are well positioned to advise you in relation to all family law issues. We will provide appropriate legal assistance to you as you navigate this difficult new terrain.

  • Do you know what factors influence the calculation of child support by the Child Support Agency?
  • Do you know what changes in your or your former partner’s circumstances would allow for a change to the child support assessment?
  • Do you need a Binding Child Support Agreement?
  • Did you know you can be paid child support for a child aged over eighteen years of age if they’re still attending school?

Our highly experienced family lawyers are well versed in respect of the “rules” pertaining to child support and can provide you with clear advice on your rights and responsibilities in relation to all aspects of child support.

Why Choose Doolan Wagner?

We understand that people are often worried about involving themselves in what they fear are complex and expensive legal processes. We will give you clear and concise legal advice and guidance.

We are a specialist firm located conveniently in St Leonards on Sydney’s Lower North Shore. Visiting us is relatively stress-free and will help you avoid the congestion of Sydney’s CBD and the North Sydney Commercial Precinct. We are an easy 15-20 minute drive from Hornsby, Ryde, Gladesville, Chatswood and St Ives and there is ample street parking nearby. We are also only a short 2-3 minute walk from St Leonards train station. There are regular trains from Central, Hornsby and Epping. St Leonards station is a major stop for various local buses.

Affordable Family Lawyers North Sydney

And as a smaller firm, we don’t have the same overheads as some of the larger “city-based” firms. We understand that families facing a family breakdown are often facing added financial pressures as well. We do our best to keep your costs down by offering highly competitive rates. Our competitive fees don’t mean you will get anything other than top-quality legal advice and assistance because we promise that you will not just be a file in a cabinet to the family lawyers at our firm. We believe in giving all of our client’s personal care and attention.

Also read: How Much Does a Divorce Cost?

We also recognise that often clients may be confused about what the “real” or “live” issues are. Knowing how best to approach obtaining appropriate legal solutions in their divorce and separation is important. As a firm that only practices in the area of family law, our family lawyers have the level of experience that clients are looking for to assist them to face their separation, divorce and other family law issues with confidence. We can get to the “heart” of your matter quickly and won’t waste your time or money focusing on issues that don’t matter.

We will guide you through every aspect of your family law matter, from the first stages of legal planning through to finalisation of your family law matter. It is our view that, no matter how complex or simple your matter appears to be, it is essential to obtain early legal assistance from an experienced family lawyer (preferably an Accredited Family Law Specialist) so that you can get the answers you need. This will enable you and your family to positively move forward with your lives. It is very important that you have a clear legal plan prepared prior to engaging in any family law processes, whether it be approaching the negotiating table or filing an Application in the Court. We can help you with developing your legal strategy and assist you throughout the family law process.

Expert Divorce Lawyers North Sydney

We know that our help can put you in the best position to secure the optimal outcome that works for you and your family. Our Accredited Family Law Specialists are skilled at negotiating the often challenging family law setting. Their approaches, together with their sensitive and personal service and support, will put you in the best position free from uncertainty and unnecessary worry.

Whatever your circumstances are, we promise you that we will handle your matter with your personal circumstances at the forefront of our minds. We will listen to you to ascertain your wants, needs and concerns so that any advice we provide to you is tailored to your specific needs. We are not afraid to adapt our methods and approaches to suit your family’s needs and can either provide a sensitive approach or strong court representation, depending on your needs.

We have family lawyers who have had extensive experience in the collaborative law process and are collaboratively trained. By being able to engage in a more collaborative legal process in the majority of our family law matters we attempt to enable our clients to have the utmost input and control over their matter. This approach also allows independent professionals to contribute to the legal process to ensure that the parties will have the most appropriate, effective and positive outcome possibly achievable in their matter. And it also helps keep our clients costs down because we will do our best to settle matters by alternate dispute resolution mechanisms such as negotiation, roundtable settlement conferences, mediations and arbitrations.

If you’re still not convinced we can help you, perhaps reading some of our client testimonials will set your mind at ease…

Take the Next Step…

Facing issues in relation to intimate family or relationship matters can be stressful, daunting and worrisome. These matters have the potential to affect your emotional wellbeing, as well as have a substantial effect on the wellbeing of other family members and your finances. Obtaining timely specialist family law advice, guidance and support in relation to all family law matters will set you on the best path forward.

If you live or work on the North Shore of Sydney and:

  • are experiencing a relationship breakdown; or
  • need advice regarding your family’s circumstances; or
  • want to know more about your rights and responsibilities; or
  • just need to know where you stand…

We can help you because Lisa Wagner & her family law team is made up of highly experienced Accredited Family Law Specialists and highly regarded registered Family Dispute Resolution Practitioners. So, take the next step and call us on 9437 0010 or email enquiries@familylawyersdw.com.au to find out how we can 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.

Divorce Lawyers North Shore FAQ’s

Back to School Costs After Separation – How Far Can Your Child Support Payments Go?

The payment of Child support continues to incite much heated conversations.  Whilst a government report commissioned a few years ago found that of those people surveyed:-

  1. many believed that the amount of child support being paid was considered to be about right; and
  2. many said that the actual child support that was being paid was being paid in full and on time.

we often hear people complaining that they are paying too much child support or not getting enough child support.

The basic child support formula is complicated and multi-layered. It relies upon detailed research into the costs of raising children in different age bands as its starting point. The basic formula then takes into account the parents respective relevant incomes and the amount of time that each of the children spend with each parent in determining an appropriate level of child support to be paid and/or received. The formula also makes allowances for new siblings and other dependents and for other “life” considerations. There are grounds upon which you can seek to change an administrative assessment of child support if, for example, you can satisfy the Department of Human Services that the income of one or both parents is not properly taken into account or the costs of raising your child or children are special in all of the circumstances. Provided you meet particular provisions these matters can also be considered by the Family Court.

However, how relevant is the basic formula for separating families living in most areas of Sydney?

Perhaps two of the biggest factors relevant to large parts of Sydney that are not necessarily captured in the basic child support formula are:

  1. The high costs of housing in Sydney; and
  2. The growing propensity to send children to private schools especially at the secondary school level.

These two factors weigh heavily on the budgets of most families not just those experiencing separation. Creeping housing costs in Sydney are difficult to escape. The cost of education and in particular “back to school” fees are also significant and are costs that we cannot have a great deal of control over.  Availing yourself of the second hand uniform stall or recycling hand-me-down clothes and books goes only a small way towards making ends meet.

The basic child support formula is meant to cover the costs of public school education and associated expenses including uniforms, shoes, stationary, books and the like.

Payments of child support do not “spike” in January/February each year to take extra “back to school” costs into account. If you are receiving child support and are obliged to meet all the “back to school” costs yourself then you either need to try to budget for this expensive time of year over the course of the previous twelve months, or as most people do, use credit cards and spend the next few months playing “catch-up”.

Private school fees and the extra expenses charged at most private schools along with the extra “back to school” costs generally are only payable by an ex-spouse if you have secured a departure order from the Court or have entered into a Binding Child Support Agreement with your former spouse or partner requiring that all or a proportion of those expenses are paid. In either case provision can be made for the payment of a raft of “back to school” expenses that are incurred at the start of the year or at other times including:

  • Laptops, IPads and IT expenses (even maintenance, repair and replacement costs)
  • Hockey sticks, team uniforms sports equipment and registration costs
  • Musical instruments, tuition and examination charges
  • Incursions, excursions and even overseas immersion trips
  • Camp fees, Cadets and Duke of Edinburgh

No matter what your budget or your circumstances after separation, it is vital to understand what all your true child costs are and also what they are likely to be moving forward, including non-recurring costs like “back to school” expenses. It is also essential to determine what real income will be available to meet all of these costs. “Back to school” costs which spike at the start of each year are a strong reminder of how important this is. This is true for all families but particularly so for families experiencing separation. Clearly setting out who will be responsible for all of these child related expenses is crucial and these obligations should be clearly included in a Binding Child Support Agreement or Court Orders. Without any settlement being documented in this way there is no real obligation for either parent to meet these costs and these costs can be really felt as children get ready to return to school each year.

Doolan Wagner Family Lawyers offer specialist family law advice in St Leonards on Sydney’s North Shore.  If you would like some more information about child support or have a Family Law enquiry, please contact us on (02) 9437 0010 or send us an email at enquiries@familylawyersdw.com.au to discuss your matter in complete confidence.  Lisa Wagner is the founding principal of Doolan Wagner Family Lawyers, an Accredited Family Law Specialist and a nationally registered Family Dispute Resolution Practitioner on Sydney’s North Shore.  We also have a team of experienced and caring professional family lawyers available to help you in this difficult time.

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.

Neutral Bay Family Law

Doolan Wagner Family Lawyers have been providing expert advice to people in Neutral Bay and surrounding areas for close to three (3) decades and understand the common issues and questions that arise for the local community.

Located on Sydney’s lower north shore, Neutral Bay continues to appeal to young professionals, wealthy families and retirees.

According to the Australian Bureau of Statistics in 2016 Neutral Bay had a population of 10,488, most of who were aged between 25 and 44 years, comprising married (37.6%) and couples in a de-facto relationship (17.7%). About half of the families in Neutral Bay had children.

Often our clients from Neutral Bay and its surroundings:

  1. Are concerned about the division of their respective hard-earned assets and their entitlements in relation to their ex-partner’s assets.
  2. Are considering future parenting arrangements and how to meet the payment of private school fees and best achieve sensible child support agreements.
  3. Are wanting to secure their superannuation and retirement income ensuring stability and certainty in retirement.

Engaging a family lawyer can be a daunting step. At Doolan Wagner Family Lawyers we understand that each matter is unique and we tailor our advice to suit you. Each and every one of our clients is important to us and we endeavour to achieve the best result for all of our clients bearing in mind that engaging a family lawyer means that you are likely experiencing one of the hardest times in your life.

If you are looking for an Accredited Family Law Specialist near Neutral Bay, along with an experienced and dedicated team of family lawyers, then contact us at Doolan Wagner Family Lawyers to arrange an initial consultation for a reduced fixed rate and have all of your family law questions answered.

Read on to learn about some of the commonly raised Family Law issues that may be important to you. And also view our range of family law services.

family lawyers neutral bay

It’s often not 50/50

A lot of separating couples seek legal assistance to divide their assets and liabilities however are not aware of what factors will be considered, what they’re entitled to and how the Court will assess their situation.

So how does the Court approach a matter where both parties have made their own respective contributions? And, how would the Court consider a situation where one party had been predominantly a “homemaker” or “stay-at-home parent” and the other the “breadwinner”?

In relation to Family Law matters, the approach normally taken in all property applications is a four-step process. These four steps are:

1. Identifying the net asset pool which includes the value of all the property of the relationship, less the debts of the relationship.

2. Assessing the contributions made by each of the parties. Basically, contributions may be any of the following:

2.1. Direct financial contributions including being towards the acquisition of assets.

2.2. Indirect financial contributions, for example where one party’s income is used to buy the groceries each week to enable the other party’s wages to be applied directly towards the mortgage.

2.3. Non-financial contributions, including contributions as a homemaker and parent.

3. Making any adjustment needed to be made to take into account “future needs” factors such as the age and state of health of each of the parties, financial circumstances, care of children and earning capacities.

4. Structuring a settlement that is just and equitable.

It is important to remember that each matter will be assessed on its own particular facts.

Also read: Lane Cove Family Lawyers

Are inheritances included in a property settlement?

An inheritance received by a party can be included as an asset available for distribution in the matrimonial pool of assets however may be treated differently to other property depending on the particular facts of a case.

For example, an inheritance received early in a long relationship and applied towards a mutually owned asset of the parties is characterised as a financial contribution by that party however the significance of it will diminish over time.

If an inheritance is deemed to be unavailable for distribution as it is not yet available, an adjustment can be made to the remaining assets when taking into account the future needs of both parties and the benefit the particular party has as a consequence of a prospective inheritance.

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How is superannuation considered?

Ordinarily, the current values of parties’ entire superannuation entitlements are included in any Balance Sheet. This does not, however, prevent superannuation benefits or entitlements as at the commencement of a relationship or accrued after separation, from being asked to be considered outside a Balance Sheet or excluded/quarantined. Each case will turn on its particular facts. Generally, parties may negotiate how their superannuation entitlements are considered and/or divided and the Court will likely accept any agreement the parties achieve in the event that it is part of an overall just and equitable resolution of their financial matter.

Can I make a claim for ongoing financial support from my ex?

A party may make a claim for spouse maintenance in the following circumstances:

  1. If the party is unable to support herself/himself adequately;
  2. If the other party has the capacity to provide financial assistance.

An application for spouse maintenance is separate to a property settlement in family law. It is more likely to be considered by a party where that party to the relationship was predominantly a “homemaker”, is of poor health, is required to care for children in addition to themselves and in any event, has a lower employability level and capacity to support themselves.

An example of a person who may wish to claim spouse maintenance from their former partner would be a party who had been in a lengthy relationship and considered a “homemaker” and became financially dependent on their former partner.

Can I prevent my ex from making a claim for ongoing financial support?

In short, the answer is yes. A Financial Agreement can operate to prevent future claims for spouse maintenance.

As the name suggests, however, it is an “Agreement” which is required to be entered into by both parties and comply with specific legislative requirements in order for it to be valid. This includes obtaining independent legal advice.

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Separation can be hard at any age and at Doolan Wagner Family Lawyers in Neutral Bay we can make the process so much easier.

How can I protect my estate from a potential claim from my partner in the future?

Importantly, achieving a property settlement by way of Consent Orders also does not protect your estate from a claim being made against it by your former partner upon your passing.
Similarly, Consent Orders do not prevent you from making a claim against your partner’s estate after their passing.

This could be a significant consideration for a retiree, particularly where the separation from their former partner was on “bad terms”. A Deed of Release however can be entered into at any stage to protect one’s estate from a former partner’s potential future claim on their estate.

Without this documentation being prepared, both you and your former partner are eligible to make a claim against the other’s estate. Some people are of the view that the possibility of a further claim being made against their estate by their former partner is to be expected or is a fair outcome. In certain circumstances clients may not want to abandon their ability to make a claim against a former partner’s estate at a later time should their ex pre-decease them. Other people feel very strongly about the need to protect their estate against such a possible claim. A Deed of Release will assist in finalising all possible claims between them and their former partner, both now and upon their death.

How do I formalise parenting arrangements in relation to my children?

Often when parties separate, the child/ren of the relationship are caught in a battle between their parents in respect of parenting arrangements.

Separating couples with children have to additionally consider future parenting arrangements and child support issues.

Parenting Consent Orders can deal with a huge number of the issues parents face in a separation including where the child will live, the time spent with the other parent, parental responsibility, school holidays, special occasions and communication. The primary consideration in parenting matters is the best interests of the child. It is a distinct principle in family law and it will be paramount in all parenting matters.

Child Inclusive Conference (“CIC”)

In the event that parents cannot reach an agreement about parenting arrangements, a CIC is an available option as part of the Court process to assist families.

A Family Consultant selected by the Family Court will conduct your CIC and will hold separate interviews with you, your former partner and your child/ren in order to understand your family’s situation and your respective perspectives. We note that a CIC has a particular emphasis on assisting the Court to understand the experiences of the children after separation and at the present time.

It is important to note that a CIC is not a confidential process. After your CIC, a memorandum will be released including conversations, information obtained by the parties and child/ren and the Family Consultant’s recommendations arising from the process.

Binding Child Support Agreement

Many parents who would be able to make an application for an Administrative Assessment through the Department of Human Services prefer to enter into an agreement on their terms and so opt to enter into a Binding Child Support Agreement.

A Binding Child Support Agreement will formalise your agreement with the other parent in relation to child support payable for the child/ren and provides certainty about financial support for the child/ren in the future.

Applying for a Divorce – what’s involved?

Most parties choose to get divorced soon after separation in order to formalise the end of their marriage. In Australia, a person may not remarry if they are still married to another person. Preparing a Divorce Application, waiting for a Divorce Hearing and obtaining a Divorce Order from the Family Court, all take time. The process may be prolonged if your former partner is not agreeable to the divorce. Proactive steps can be taken to ensure this process is not unnecessarily delayed.

In order for a Divorce Application to be accepted and a Divorce Order to be made, the Court must be satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than twelve (12) months immediately preceding the date of the filing of the Divorce Application.

Family Law authorities have established that there are three (3) elements which need to be present for separation to be proven, namely:

1. Intention;

2. Communication; and

3. Action/Change in behaviour.

Parties to a marriage may be held to have separated and to have lived separately and apart however notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other. In each case, the question of whether parties have separated will be a question of fact. Broadly, some factors that the Court may consider include the:

1. The financial situation of the household and relationship;

2. Nature of the relationship and household;

3. Sexual relationship of the parties; and

4. Public knowledge of the separation.

It is important to note that an application for property orders must be made within twelve (12) months of your divorce order taking effect. Once this time lapses, you will have to obtain the Court’s permission to initiate property proceedings and this is not obtained lightly.

 

Are psychologist notes really confidential in family law matters?

Most information that is shared with health professionals will be confidential and is prohibited by law from being shared with anyone, except in limited cases where there is a greater need to protect the safety of the patient or another member of the community.

Evidence such as counselling notes must be relevant to the issues presented before the Court in order to be admissible. If the evidence cannot “rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding” it would not be relevant to the case (s55 Evidence Act 1995 (Cth)).

Therefore, information is legally confidential will not suffice in protecting it from being exposed in family law proceedings. Family law courts are flexible in accepting evidentiary material in order to understand and successfully resolve parenting matters involving children and are willing to assist a party in protecting particular aspects of evidentiary material in order to render the remaining relevant material admissible.

Are there any alternatives to Court?

Alternative dispute resolution affords parties different processes to assist them in resolving their matter out of Court.

Mediation is a very common form of alternative dispute resolution where parties to a dispute, with the assistance of a mediator, identify issues, develop options, consider the respective parties desires and endeavour to reach an agreement. The mediator simply conducts the mediation however does not have an advisory or determinative role.

Collaborative Law is another process available that is led by lawyers representing each of the parties and where it is agreed that the lawyers will cease to act for their clients in the event that the matter proceeds to litigation.

The court is a time-consuming, costly and unpredictable process that most clients wish to avoid. Engaging in alternative dispute resolution in family law matters should be an important consideration for most parties. It would not be suitable however for matters involving violence.

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Meet Lisa Wagner from Doolan Wagner Family Lawyers

Doolan Wagner Family Lawyers – how can we help you?

We are a reputable specialist family law firm located conveniently on Sydney’s lower north shore. We are local to Neutral Bay residents and consistently strive to achieve the best outcome for our clients.

Every matter is different and we explore all available and suitable options including mediation, negotiation, collaborative law and litigation for our respective clients in potentially the most challenging period of their lives.

We have a dedicated team of experienced family lawyers prepared to handle your matter effectively and efficiently, providing you with reliable, direct and practical advice.

Being less than a ten (10) minute drive from Neutral Bay and located only a block away from St Leonards train station, come see us for an obligation-free confidential consultation and understand where you stand.

Doolan Wagner Family Lawyers offer specialist family law advice in St Leonards on Sydney’s North Shore. If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or enquiries@familylawyersdw.com.au to discuss your matter in complete confidence. We have a team of experienced and caring professional family lawyers available to help you in this difficult time.

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.