Discussions about legal rights often concentrate on adults. However, the law also protects the rights of children in significant ways. It is important that you and your children are aware of their rights at law to ensure that these rights are respected at all times.

  1. Right to be Heard

Children have a right to be heard in all matters affecting them. In legal proceedings, child representatives must act on the child’s instructions unless the child is not competent to give instructions.

  1. Schooling

It is unlawful for educational authorities, whether private or public, to discriminate against students with disabilities. However, there is an exception to this rule if the services or facilities required by a student with a disability impose an ‘unjustifiable hardship’ on that educational authority. Enlivening this condition requires exceptional or dangerous conduct, such as protecting staff and other students from violent behaviour that may arise from a student’s disability.

Students also have a right to an education free from bullying. Every government school in New South Wales must have an Anti-Bullying Plan and schools have a responsibility to implement best practice programs to tackle bullying of all kinds, including cyberbullying.

Furthermore, public schools in New South Wales must follow the Department of Education’s policy for suspending or expelling a student. Students are entitled to procedural fairness in these decisions and possess a right to appeal. The suspension and expulsion policies of private schools must also abide by principles of procedural fairness.

Finally, schoolchildren’s privacy rights differ to those of adults, as the Department of Education’s Privacy Code of Practice allows the sharing of children’s personal information between schools, parents, guardians and caregivers in specified circumstances.

  1. Medical Treatment

At common law, children can consent to medical treatment if they fully understand the proposed treatment. Parents cannot invalidate their child’s consent, but a Court may. If a child is not competent to consent, parents may give consent unless it is a special medical procedure that requires Court authorisation.

If you have any questions or concerns about your children’s rights, call us on 8917 8700

 

There is no doubt that the pandemic has been a struggle for Australian families. Whether that struggle be financial or emotional, these difficult times have forced many couples to question where their relationships stand.

Any person questioning their marriage will be faced with the defining question; Do you try to work through the problem? Or do you file for a divorce?

Situation A: I want to work on my relationship, but I don’t know how

Counselling can be effective at repairing even the most broken of relationships. Studies have shown that couples therapy is effective at restoring relationships in 75 percent of cases.

If engaging a counsellor or psychologist is out of your budget, consider developing more open communication with your partner.

Situation B: I want a divorce, but I do not know how to proceed 

If you are currently in an abusive relationship or are experiencing domestic violence, there are many hotlines available to speak to someone in confidence which include:

If you are not in immediate danger and are considering getting a divorce or separating from your partner, contact our offices for a free consultation.

 

If you are currently thinking about divorce, or wish to discuss a legal matter further, please do not hesitate to contact us on 8917 8700.

The Morrison Government's rejection of a plan to extend super to paid parental leave payments will have major consequences for Australia's newest mothers.

Despite speculation of reform that would require employers to pay superannuation entitlements on all paid parental leave, the hopes of working mums were crushed with the announcement of the federal budget on 11 May 2021. Proposed changes included calling for employers to provide super or pension credits to those foregoing earning income to undertake caring responsibilities. Under this plan, the federal government would be responsible for converting carer’s credits into superannuation payments. The scheme was widely praised as a positive step towards closing the gender gap in superannuation balances by ensuring that carers (who are predominantly women) are not penalised for the essential caring services that they provide.

This budget's failure to include these changes could future mums up to $13,500 over a life time.

Despite its flaws, this budget's renewed focus on women and low income earners has shocked and delighted many. The Australian Government announced it will expand super guarantee coverage for low income workers by removing the $450 per month threshold for eligibility. With 3 billion dollars allocated to women, 2021’s budget is unrecognisable from last year’s focus on construction and roads.

If you would like to learn more about the 2021-2022 budget, you feel your employer is not honouring your rights, or you would like to discuss a legal matter, please do not hesitate to contact us on 8917 8700.

There are many terms family lawyers throw around when discussing the options available to parties who are separating. While they may sound similar, terms like mediation, arbitration and litigation in fact serve difference purposes and involve distinct processes.

Here's an easy to understand description of each.

Mediation

Mediation is an alternative dispute resolution (“ADR”) process whereby an independent, neutral third party, a mediator, assists in encouraging discussions between parties. This is done in the hopes of reaching an amicable resolution.

Mediation is a non-binding process and any discussions/negotiations between parties is confidential. Neither party is required (i.e., forced) to agree to either a distribution of property or a parenting arrangement. Any agreement reached must be agreed to by consent, which can be made formally binding by the Court by way of an Application for Consent Orders.

Parties are allowed to openly discuss any issues between them at a mediation, with the assistance of a mediator. The focus is on developing a tailored agreement suitable to the parties' individual circumstances. That is, the parties decide the outcome of their matter, rather than a third party, such as a judge, deciding outcome for them.

Mediation is usually a method of ADR undertaken prior to parties considering initiating proceedings in Court, which is usually the last resort. However, mediation is always an option even whilst proceedings are ongoing in Court.

The benefit of mediation is that it gives parties the opportunity to come to an agreement between themselves which is tailormade to their circumstances. It will also save them the often exorbitant cost of litigating.

The downside of mediation is that it is a voluntary process and any party can walk out at any time and an agreement may not be reached. The role of the mediator is not to make a decision regarding the distribution of property or a parenting arrangement, but only to encourage the negotiation process and focus the parties on coming to an agreement.

Arbitration

Arbitration is a voluntary process which can be undertaken either by agreement between the parties or referred by the Court (if consented to). However, the end result of an Arbitration is binding on parties as a third party accredited arbitrator makes a determination about the division of property, or an issue in dispute between parties.

Arbitration can only be used for property disputes, and not parenting. That is, an arbitrator cannot make a determination regarding a parenting arrangement.

A benefit of Arbitration is that it is both time and cost effective, particularly given the significant delay and backlog in the Family Courts, whereby parties generally wait between 2 to 3 years before a final hearing is held. Arbitration can be held within a few months of parties agreeing for an Arbitration to be held.

Unlike a final hearing, Arbitration allows parties to limit their negotiations to specific issues. In a final hearing, a myriad of issues must be determined. This costs parties more money and can take extra time; up to 5 days.

The outcome of an arbitration, called an Award, is absolute, and may only be appealed on an error of law.

Litigation

Litigation is when theis matter is initiated in the Family Court. This an expensive and lengthy process which may take up to 3 years or even longer. The backlog in the Family Courts is excessive and can make the experience extremely emotionally draining.

The benefit of the Court system is that Orders are made to progress the matter to a stage whereby it is ready to be determined on a final basis. However, the Courts always encourage parties to resolve their matters by way of alternative dispute resolution, which is significantly faster and can be undertaken prior to or during the course of litigation.

Litigation is always the last course of action.

If you would like to discuss anything further with our experts at Freedman & Gopalan Solicitors, call us on 02 8999 9837.

 

On 19 November, the Stronger Communities Legislation Amendment passed NSW Parliament, making significant reforms to the Criminal Procedure Act 1986. This is part of a broader reform of domestic violence legislation in NSW in order to better protect victim-survivors of domestic and family violence

Victims may now give evidence in closed court, meaning that only certain people are allowed to come into the courtroom, in contrast to open court where anyone is able to come in and watch the case from the public sitting area. The victim-survivor may also now opt to give evidence via audio-visual link. Under the current laws, evidence can only be given remotely if the court grants permission. Now, victims have a prima facie right to give evidence this way.

Victims are also now excused from personal cross-examination from self-represented accused. Previously, if the accused was representing themselves (rather than having a lawyer), they were able to cross-examine the victim directly, which created a highly traumatic experience for the victim of the domestic violence, and was seen by some victims as an extension of the same violence and abuse they had experienced previously. The reforms are intended to ease the burden and ensure victims are better supported, according to Attorney-General Mark Speakman.

Another important reform is that the protection of family pets will be a standard condition in Apprehended Personal Violence Orders (APVOs). The Attorney-General said that animals are used in manipulative, coercive control situations to punish the victim who has tried to leave the relationship. Now harm, or threatened harm, to harms will be classed explicitly as a form of intimidation, and protection of the animal/s will be a standard condition.

If you or someone you know is concerned about your legal rights in a relationship, whether it be issues relating to domestic violence, property settlement or child custody, please do not hesitate to contact Freedman & Gopalan Solicitor on 02 8917 8700 for advice.

 

A recent article in the Sydney Morning Herald, which you can read here, told stories of adult children who have 'divorced' their parents, which has led to further discussion about what exactly it means to 'divorce' your parents.

If the child is under 18

If a child is under 18, in certain situations, they can 'divorce' their parents so that the state becomes their guardian. This means the child is no longer under the control or authority of their parents, and the parents no longer have legal parental duties and responsibilities. This process is also sometimes known as 'child emancipation'.

A child or a parent can apply for this, and the process is then handled by the Children's Court. The situations where the Children's Court will grant such an order are where the parents harm the child, or risk harm to the child, or where there are irreconcilable difference, even where no harm is involved. The process requires dispute resolution, including mediation and counselling, in order to satisfy the court that all avenues have been tried.

If the child is over 18

If the child is over 18, there is no equivalent process in the Children's Court, or any other court. The process that we might call 'divorcing your parents' is an emotional and social estrangement between the adult child and their parent.

However, legal issues still may arise where a third generation gets involved - for example where there is the estranged parent, their adult child, and then a grandchild. While the adult child doesn’t legally divorce their estranged parent, they might deny the estranged parent access to the grandchildren. Here, the grandparents might attempt mediation, or bring proceedings in the Federal Court to see the grandchildren.

In Australia, the law recognises the importance of the grandchildren-grandparent relationship. The Family Law Act 1975 (Cth) s 65C provides that a grandparent may make an application to the Family Court for a parenting order.

If this article raises any queries or issues, please contact our family law specialists at Freedman & Gopalan Solicitors by filling out the online enquiry or calling us on 02 8917 8700.

 

 

 

 

 

Navigating a parenting agreement that works well with both you and your co-parent can be difficult, especially during the festive season where things become more hectic. In addition, conflicting family traditions coupled with the angst and emotions that comes with separation can make things even more difficult during this time.

Whilst arrangements may already be in place for the day to day activities of the child, many separated couples forget to consider upcoming celebrations such as Christmas Day. There is no better time than now to start discussions with your co-parent. Some things you may also want to consider are: -

  1. How the school holiday period will be arranged? What routine will be best suited?
  2. Do you have work commitments? Does your co-parent have work commitments?
  3. How do your family traditions differ to your co-parent’s? Will the child be spending Christmas Day together with you both or separately? Otherwise, who will the child stay with on Christmas Day?

After an amicable agreement is in place, we would always recommend for both parties sign a written agreement. This will ensure that it is clear, and both parties will be on the same page at all times. If circumstances change, you may also revisit the agreement to make alternative arrangements.

If, however, you have exhausted your options and you are not able to reach an agreement with your co-parent, we would highly recommend for you to get in touch with us in order to explore your options further.

Remember, however, there are cut off periods for filing any Applications intended to deal with Christmas arrangements with the Family Court. This year, that cut off date is 4:00pm on Friday, 13 November 2020. 

If you wish to discuss your parenting arrangement further, please do not hesitate to contact Freedman & Gopalan Solicitors on 8917 8700, and we will be able to guide you.

 

With the upcoming Christmas holidays fast approaching (or not coming fast enough), many people find themselves in a new situation where they have recently separated, with the unresolved issue of what is happening with care of the children and how to raise this with the other parent.

Christmas is a time to spend with your closest family and friends to celebrate and be grateful for with the ones that you love. Usually a time of togetherness for families, it can be a first time you find yourself in a situation where years of tradition are uprooted.

Here are some ways to assist you in navigating the Christmas holiday period as a newly single parent.

  1. Plan Ahead

Last minute stress of raising issues in relation to the care of children never helps anyone, simply increasing the deadlines and pressures of an already difficult time of a new single parent trying to juggle employment commitments, care (or lack thereof) the child/ren and financial constraints.

Begin the conversation with the other parent if you do not already have a parenting arrangement or court orders in place. Should you be unable to agree, you can engage in alternate dispute resolution in order to resolve any outstanding issues with the assistance of either a mediator and/or Family Dispute Resolution Practitioner (which is a step required to be undertaken as a pre-action procedure in order to make a genuine attempt at resolving the matter prior to initiating proceedings in the Family Court/Federal Circuit Court). You are also able to undergo Family Dispute Resolution with legal assistance.

In the event that no arrangement be reached at FDR or between the legal representatives, the option of filing an Application with the Court is the last resort. However, there is a deadline for parenting applications to be considered prior to the Christmas Holiday period, which is usually the second Friday in November, unless of course it is considered urgent.

It is always handy to have any agreement reached in writing so you are both on the same page (pun intended) and there is no miscommunication or understanding.

 

  1. Work Together

You and your former spouse/partner are the best ones who know your individual family circumstances and what is important to you, not judges, lawyers or other individuals who have gone through the process and seek to provide you with advice and tell you what you should do.

The best way to assist your children to go through the separation period, which they themselves are affected, is for them to see that you respect their relationship with the other parent, and to see that their parents are trying to work together for the best outcome.

 

  1. Your children come first

This is not a time a time to think from a win/lose perspective, thinking that if you do not get what you ask for, that you are ‘losing’.

The Court’s paramount consideration is what is in the best interest of the children. Think about ways to ensure that the children are comfortable and happy with the arrangements that are in place. Never ‘guilt-trip’ your child/ren into feeling bad about spending time with the other party during the holidays.

Whilst it is important for children to know that you love them tremendously with all you heart and soul and will never let anything bad happen to them, do not let them know that you are hurting because they are not there with you and make use of the time that you do have them.

Also keep in mind that the current situation (if particularly bad), will not always be the case and children remember and appreciate the time and care that you put into them during times like this when they are older.

 

  1. Things to consider when planning ahead

Specifically discuss with the other parent what the plans are to avoid any misunderstanding, including the following:-

  1. The specific times that the children will be spending with each parent, taking into consideration any family events and also the age of the children and whether it is age appropriate for the child to be away from their primary attachment figure for any extensive period of time.
  2. The distance between changeover points and where the changeover is to occur. It is important to keep in mind an age appropriate location and think about the time taken to deliver the child/ren from one location to the other. The changeover location should be at a neutral public location in order to avoid the risk of conflict if this is an issue (particularly if other family members are present and there is has been ongoing animosity). Planning ahead will also reduce the anxiety associate with last minute planning, and deal with any issues such as whether a particular location will be open during the Christmas holiday period (due to public holidays for example.)
  3. Gift giving – discuss gifts with the other party so that there isn’t a cross-over of the same presents, for example, a gaming console. Work together so that gifts supplement each other in these circumstances.

 

  1. Be realistic

There are going to be occasional hiccups that arise with a new situation. Be realistic in your expectations and try facilitating or consider alternative arrangements with the other parent that work best in your circumstances, keeping the child/ren in mind.

There is no one arrangement that is suitable for all families when considering Christmas Day (or the Christmas Holiday period), so make sure to think of an arrangement that will work for both parents and in particular, the children.

The aforementioned is in circumstances where you and the other parent are on fairly amicable terms. Should there be an imminent threat of abuse, history of family violence and threats made, leave immediately or if you are unable to, contact the Police for urgent assistance.

It is also important to keep in mind who has possession of the child/ren’s passports (is this is applicable), particularly if your former partner/spouse is a citizen of another country. If there are any indications that the other parent may leave the country without having provided you with notice of the holiday, together with the details such as flight itinerary, where the children will be staying as well as contact details, contact our expert family lawyers to understand what your rights are in this situation.

 

This article is general tips and advice only and should not be taken as legal advice. For legal advice or to find out further information, contact our family law solicitors at (02) 8917 8700 for a no obligation free consultation.  

 

“Should I Stay or Should I Go”, coincidentally a song played by a band called The Clash, is a question many parties ask when they separate, and both often think they are entitled to remain living in the home whilst the other finds alternate accommodation.

Often one party decides to leave the matrimonial home when an altercation occurs, and the Police are involved. Whilst the Police are not able to forcibly remove a party when the house is held in joint names (unless of course there are already family violence Orders in place), they do highly recommend that one party leaves in order to ensure that no future incidents occur. This is simply due to the fact that there is often volatile atmosphere created following a new separation, and the Police are the first point of call.

Should the issue remain and there is no agreement as to who is to remain in the home (and usually incur the expenses associated with living in the property such as mortgage repayments), the Court may be asked to decide by way of an Application to the Court.

The Court has the power under Section 114 to:-

  1. grant an injunction restraining a party from entering or remaining at the matrimonial home (or the premises in which the other party resides, considering that many people are either renting or perhaps in this day and age, due to the expense of owning a home or simply for convenience, continue to live with their parents); or
  2. grant an injunction relation to the use or occupancy of the matrimonial home (otherwise known as ‘exclusive occupancy of the matrimonial home’).

When deciding whether to grant a party exclusive use or occupancy of the matrimonial home, the Court may make such an order “as it considers proper” with respect to the matter to which the proceedings relate.

The Court will look at the following factors when deciding to give a spouse exclusive use or occupation of the home:-

The above is by no means a restrictive list and are guidelines only.

An Application for sole occupancy of the home is made on an interim basis (that is, during Court proceedings) and the onus of proving entitlement to the home is on the applicant which is done via an Affidavit. The Court will look at the evidence the Applicant seeks to rely upon when exercising its discretion.

If you think an order for sole occupancy may be appropriate for you (or a friend) in your circumstances, contact our family law experts at Freedman & Gopalan Solicitors by calling 02 8917 8700.

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