Family law proceedings are stressful and complex processes. Here are five factors you should consider before initiating these proceedings.
1. Are you emotionally ready to undergo family law court proceedings?
Family law court procedures, whether they are regarding divorce, children, or property settlement, are extremely stressful. You must be mentally and emotionally prepared to face various obstacles of court procedures. Emotions that may arise include denial, anger, guilt, grief or confusion.
In most cases, parties will attempt to resolve their matters in alternative dispute resolutions where the emotional strain is significantly alleviated.
2. Have you tried Family Dispute Resolution (FDR)?
The most common forms of FDR used as alternatives to family law court proceedings are negotiation and mediation.
Negotiation involves both parties discussing the matters at hand in an attempt to come to a resolution that both parties are happy with. Negotiation can be an in-person meeting or through emails, letters and telephone calls. It is very practical as it avoids the high costs of a protracted court process. Negotiation also allows parties to preserve, and potentially enhance, their relationship through a mutually satisfying resolution.
If negotiation is unsuccessful, you must consider whether it is worthwhile undergoing mediation processes with the other party. Mediation will only be successful if both parties cooperate and want to resolve the issues amicably. Mediation is similar to negotiation; however, the issues are brought before an impartial third party through organisations such as Anglicare and other local mediation services.
If negotiation and mediation are unsuccessful, you will need to obtain a Section 60I Certificate which will enable you to commence legal proceedings.
3. Court proceedings including children
It must be acknowledged that court processes can have significant impacts on children. Research conducted by the Family Court of Australia has shown that seeing parental conflict in a court setting has increased the risk of children having emotional, social, behavioural and academic problems. In these cases, it is best to resolve matters outside of court as it is rarely in the best interests of the child for them to undergo court procedures.
4. How urgent are the legal issues that need to be resolved?
You must consider whether the family law issues urgently need to be resolved. If they are not urgent, it is best to avoid formal court procedures and gradually come to an amicable resolution. If they are urgent, you need to obtain a Section 60I Certificate (as mentioned above) before proceedings can be commenced in the Family Court of Australia.
5. Seeking legal advice
Your final option, if FDR has failed and the legal matters need to be resolved urgently, is to undergo formal family law proceedings. The first step is to obtain legal advice in relation to your situation.
If you are contemplating whether you should initiate family law court proceedings and require further assistance, please do not hesitate to contact us on (02) 8917 8700.
With increasing accessibility of COVID-19 vaccinations, there is increasingly likelihood of dispute between parents concerning the vaccination of their children. What can be done if your ex-partner refuses to consent to your child receiving a vaccination?
Vaccination of children is a long-term parenting decision that falls within the scope of ‘parental responsibility’ within the meaning of the Family Law Act. If you and the other parent cannot agree on whether your child should be vaccinated against COVID-19, application can be made to the Family Court to resolve this issue.
In the case of Covington v Covington (2021) FLC 94-014, a mother who had withdrawn consent over the vaccination of her child argued the Australian Constitution prohibited the Family Court from making vaccination orders for her child, and a doctor administering any vaccination would be committing an assault against her child. The Court dismissed her appeal, holding the authority of the Family Court to make orders with respect to child vaccination is well settled and that decision would turn on the facts of each case.
The case of Duke-Randall & Randall [2014] FamCA 126 further provides that where such a decision is to be made by the Court, the Court will have regard to the best interests of the child, which includes the review of medical evidence concerning the child’s vaccination.
If application is made to the Family Court concerning a child’s vaccination, in exercising discretion the Court may make an order that grants one parent sole responsibility for making medical decisions (inclusive of vaccinations) or grant sole responsibility for all major long-term decisions concerning the child’s wellbeing and care. Alternatively, the Court may order parents ensure that their child is vaccinated in compliance with the National Immunisation Program Schedule.
If you and your ex-partner disagree as to the vaccination of your child, please do not hesitate to contact us on (02) 8917 8700 for assistance in resolving your matter.
Families subject to Parenting Orders are facing significant disruptions in Greater Sydney as a result of stay-at-home orders, particularly where travel restrictions limit access to public meeting points and disrupt the school term.
Do Family Court Orders still apply during the stay-at-home orders?
Family Court orders continue to be in force and remain legally binding on parents, even during a global pandemic and stay at home orders.
Leaving home to comply with Family Court Orders, such as to collect or drop off children to fulfil parenting arrangements constitutes a reasonable excuse to leave home under the Public Health Orders. The stay-at-home orders provide:
For children who do not live in the same household as their parents or siblings or one of their parents or siblings – continuing existing arrangements for access to a contact between, parents and children or siblings” (Paragraph 10 – Schedule 1 of Public Health (COVID-19 Greater Sydney) Order (No 2) 2021 [NSW].
It is clear travelling for shared parenting arrangements is permitted, however, if you are located within one of the hotspots you will be required to follow government guidelines and obtain a negative COVID test prior to travelling outside the Sydney region.
What arrangements are available in the event a parent is required to self-isolate?
Parents are required to act in the best interests of the child, by protecting them from harm and ensuring meaningful relationships between both parents. In the event one parent has been instructed to isolate pending COVID-19 test results, both parents should endeavour to develop safe alternatives for the child. This may include scheduling “make up time” once the affected parent has received negative test results and maintaining contact over FaceTime or telephone. Parents should endeavour to find alternate arrangements that are sensible and reasonable to ensure compliance with Family Court Orders.
Parents may not use restrictions or unnecessarily restrict access to their child from the other parent. However, in the event the child is exposed to COVID, a Court may find that a parent had a reasonable excuse for contravening existing parenting orders. If you have concerns about restricted access to your child, please contact us for assistance.
Is your ex-partner refusing to share care for your child resulting from COVID concerns?
If your ex-partner is refusing to share care for your child resulting from COVID concerns, and refuses to negotiate alternate arrangements sensibly and reasonably, Freedman & Gopalan can assist you in mediating a solution. In the event this is not possible, we can further assist you in making an urgent application seeking parenting orders.
If you are concerned about compliance with Family Law Orders under the current stay at home orders, please do not hesitate to contact us on 02 8917 8700.
Juggling the challenges of raising a new baby with the pressures of returning to work is a struggle many new parents face. Last week, a reputable Sydney law firm instituted policy changes that could see an end to this impossible balancing act.
Ashurst’s new policy introduces fully paid parental leave for both mothers and fathers for 26 weeks. Staff could also enjoy shorter workdays after their return, as targets for ‘billable hours’ will reduce for three months. The firm claims this new global framework will strengthen support for all parents, regardless of gender.
The use of parental leave by fathers in Australia is exceedingly low by global standards. The Australian Bureau of Statistics has shown that only 1 in 20 fathers take primary parental leave. Three in four claim they would have liked to take more leave to care for their families.
In a welcome departure from this trend, Ashurst employees’ gender will no longer affect the length of leave they can access. Ashurst claims it has made an effort to remove gendered language “so there is no distinction between primary/secondary and maternity/paternity”.
While fathers are set to benefit from the changes, creating equality in parental leave is equally valuable for female employees as it suppresses the harmful stereotype that women are a financial liability as they approach child-bearing age.
The Sydney law firm has also introduced allowances for expectant parents who have suffered the heartbreaking loss of a miscarriage. Mothers, partners and surrogate mothers will all be eligible for the full 26 weeks of paid leave if a pregnancy is lost after 20 weeks gestation. Employees who lose a child in earlier stages of pregnancy will be able to take two weeks of paid leave, with an additional 5 days allowance for appointments.
Support groups have long been promoting the value of compensation for early pregnancy loss, claiming it is vital to the physical and psychological welfare of grieving couples. While 98% of pregnancy occurs in the first 12 weeks, employers are not legally bound to provide leave unless the gestation was at least 20 weeks. Read our blog post here. Ashurst’s revolutionary reforms could provide relief for countless employees who would otherwise have to deal with their emotional and physical traumas is silence.
Policies like these are vital for happy, healthy and, ultimately, more productive staff. This is especially true in the legal profession, where practitioners notoriously suffer from poor work-life balance, with 75% claiming they frequently or always work outside of business hours. We can only hope other businesses throughout the country will start to follow in their footsteps.
If you have further questions, or would like to enquire about your legal entitlements to paid leave, do not hesitate to contact us on 8917 8700.
If you have just separated from your partner and are wondering what the next steps are, here are a few simple tips to assist you:
Step one: Identify all assets and liabilities that are available for division. Properties, bank accounts, motor vehicles, jewellery, superannuation entitlements, shares etc., are considered assets. This includes assets held either in your sole name, or jointly with your partner or any third party. Do not forget to include assets that you or your partner may have overseas. Liabilities are any debts that you or your partner may have, whether personal or with a bank or an entity.
Step two: The next step is to consider the following contributions made by both you and your partner, at the commencement of the relationship, during the relationship and after separation.
a) Financial Contributions;
b) Non-Financial Contributions; and
c) Contributions as a parent/homemaker.
Financial Contributions are any monetary contributions made by you or your partner. It could be the income you earned during the relationship, any assets owned at the commencement of your relationship, any inheritances or gifts acquired, any property acquired solely from one’s savings/income earned.
Non-financial Contributions are contributions by you or your partner that might have assisted in increasing the value of any asset. It could be any renovation or landscaping done on a property or even any unpaid work done at a family business.
Contributions as parent/homemaker could be the grocery shopping, care for children/elderly, all household chores or any other general parenting responsibilities.
Step three: The next step is to consider what the future needs of both parties are. Some of the factors the Family Court in Australia will consider are age, state of health, current income, future earning capacity, current & future parenting responsibilities.
Step four: Depending on the circumstances, the Court might consider whether it ‘just and equitable’ to consider an adjustment in favour of an individual, prior to even considering the individual contributions.
However, be aware that there is no strict formula for property division, and it differs from case to case. Accordingly, we advise that you obtain legal advice prior to entering into an agreement with your partner.
If you are struggling and wish for some assistance in settling your property division and severing your financial relationship with your partner, please do not hesitate to contact us on 02 8917 8700.
What is coercive control?
The term ‘coercive control’ refers to domestic abuse in which repeated, abusive patterns erode a victim-survivor’s sense of autonomy, independence, and self-esteem. These behaviours may be physical, but extend to psychological abuse, including tracking and tracing, humiliation, stalking, and limiting access to finance and family.
Is coercive control a crime?
The Domestic Violence Death Review Team reported that 99% of domestic violence homicides were preceded by incidences of coercive control. Despite this clear risk factor, coercive control has historically not been illegal in NSW.
In NSW, Apprehended Violence Orders are available for victims of abuse. However, this legislation does not capture coercive and controlling behaviour, leaving countless victim-survivors to fall through the cracks.
Steps to criminalise coercive control
After receiving more than 150 submissions and following five days of hearings, a joint select committee on coercive control tabled its report to NSW Parliament on 30 June 2021. In a huge step forward for victim-survivors, the committee unanimously agreed to criminalise coercive control.
The committee made 23 recommendations to the NSW government in its report to remedy the legal and non-legal deficits in responding to coercive and controlling behaviour. Notably, the report contained a recommendation the NSW government recognises coercive control as a “red-flag” for domestic homicides and criminalise coercive control.
Further legislative reform was recommended, including amendments to the Crimes (Domestic and Personal Violence) Act 2007 to create a clear and accessible definition of domestic abuse which captures coercive behaviour prior to criminalising coercive control.
The NSW Government will now consider the committee’s recommendations. With the Australian Department of Criminology revealing that two-thirds of surveyed women have experienced increased abuse during the pandemic, it is hoped that these recommendations will provide the reform needed to protect victim-survivors.
If you would like to learn more about this issue, or would like to discuss a legal matter, please do not hesitate to call us on 8917 8700.
The Delta variant of the COVID-19 pandemic is highly transmissible, and new, increasingly strict Health Orders have been issued by the NSW Government over the past month. While most Australians are locking down, some individuals have disregarded the new policies, putting the community at risk.
On 17 July, three Sydney removalists were charged for travelling through Sydney and into the Liverpool Local Government Area (LGA) after finding out they had COVID-19. NSW Deputy Police Commissioner, Gary Worboys, expressed deep concern about the behaviour and made it clear to the public that actions such as these will not go unpunished. The men may be charged with an $11,000 fine and six months imprisonment.
As police presence is set to “ramp up” in Greater Sydney, this breach is unlikely to be the last. As the Government closes construction sites throughout Sydney, thousands are vulnerable to economic hardship. Individuals need to keep the safety and wellbeing of the wider community in mind when choosing to go outside.
While COVID-19 restrictions continue, please remember that we are available 24/7.
If you would like to learn more about this issue, or would like to discuss a legal matter, please do not hesitate to call us on 8917 8700.
The NSW government has confirmed that Certificates of Title in paper form will be abolished as of 11 October 2021. This move is in line with the government’s goal to transition to 100% eConveyancing, which is considered a more efficient and ecofriendly way of dealing with property transactions.
After 11 October 2021, Certificates of Title will no longer have to be produced to enable the registration of a dealing. Accordingly, if you have left your paper Certificate of Title in your solicitors’ care, it is recommended you liaise with them in order to ascertain whether it should be returned, stored or otherwise destroyed.
If you are the owner of unencumbered land and currently possess the Certificate of Title in relation to your property, you are not obligated to take any action to return the same to the NSW Land Registry Services.
If you wish to buy or sell property, your conveyancer will have to ensure that these new eConveyancing processes and procedures are followed. Legal practitioners and conveyancers should review their conveyancing processes to minimise the impact of these changes.
If you or your solicitors retain your Certificate of Title and you would like to discuss any issues or questions, please do not hesitate to contact our offices on 8917 8700.
Although the fear of another COVID outbreak is being felt throughout Australia, our case numbers continue to pale in comparison to those in India, which has suffered the loss of nearly 400,000 to date. It is only now that many of us truly understand the seriousness of the COVID Delta strain. Our hearts go out to all affected by this terrifying and isolating virus, whether that be in Australia or overseas.