Many parents are open to financially assisting their child to purchase their first property, particularly in today’s competitive housing market. In Australia, it is legally presumed that advances of money provided from a parent to their child are a gift (and not a loan), but what are the consequences of choosing one over the other?

  1. Loaning the funds

It is important to consider the risks of providing the funds to your child, particularly when your child is married. This is a question that many family lawyers come across when the marriage has irrevocably broken down. How then can you retrieve the funds? If it was provided by way of a loan, the Family Court generally considers this as a liability of the marriage and is borne by both parties jointly – regardless of whether it was initially intended to both parties or only in your child’s name.  Liabilities form part of the total property pool and naturally will decrease the net value when it comes down to distributions during property settlement. However, without solid evidence, the Family Court tends to be sceptical whether the funds were a loan.

 

  1. Evidencing a loan

At the time of providing financial assistance to your child, we would highly recommend that a loan agreement is formalised in writing and executed by all parties. Here, the loan amount will be specified as well as the loan amount and how and when the money should be repaid. This will ensure that the funds can be retrieved. If you require any assistance in drafting the loan agreement, please do not hesitate to reach out to Freedman & Gopalan Solicitors, and we will be happy to assist you.

So, what happens then if there was no such evidence supporting the claim of the loan?

 

  1. Gifting the funds

Unfortunately, the funds provided will then be considered as a gift, and you could face the risk of your child’s partner seeking a share of that matrimonial asset. This is why we would highly recommend for you to get an agreement documented and evidence the funds by way of a loan.

 

If you have any further concerns, please do not hesitate to contact our office on 02 8917 8700.

 

 

What is mental abuse?

Psychological abuse is often termed as emotional or mental abuse. This is categorised by a person subjecting or exposing another person to a behaviour that may result in psychological trauma, including anxiety, chronic depression or post traumatic stress disorder. The effects of mental or emotional abuse can be painful and destructive, both in short and long term. Survivors often feel it is difficult as they are left to deal with low self-esteem, anxiety, depression and the feeling of helplessness.

What are the signs of abuse?

Possible signs include intimidation, coercion, ridiculing, harassment, treating an elder like a child, isolating either from family, friends or other regular activities, use of silence to control behaviour and yelling or swearing which results in mental distress.

This leads to often the victim ending up with insomnia, low self-esteem, uncooperative and aggressive behaviour, lost of appetite, weight loss, tearfulness and anger.

Who can be an abuser?

An abuser could be anyone. It could be someone you know; someone you work with or someone you live with.  It could be your partner, husband or wife. It could be staff who cares for you, like a nurse or assistants in your home. It could be your family or friends.

Can you charge someone for mental abuse?

Filing a complaint against the abuser in workplaces with the HR department is the right place to initiate your complaint. However, it is a difficult process for a victim. Additionally, it could be challenging to prove, as victims often endure additional emotional and financial damages by pursuing it.

Of course, if it is by way of verbal abuse and it is inflicted on you by your partner, husband or wife, you can proceed to consider your options as to whether you want to obtain an Apprehended Violence Order against your partner, husband or wife or whether the time has come for you to make a decision whether to walk out of your relationship.

After putting up with years and months of humiliation, negating, criticising, character assassination, yelling or public embarrassment, you need to consider your option as to whether you need to complain about it and put an end to it.

In Australia, you can contact 1800 RESPECT or 1800 737 732 in order to have a confidential discussion about the mental abuse that you are put through, to seek counselling and support services. Of course, please call 000 if you are in any danger.

Please also visit www.1800respect.org.au for further information, and if you are worried whether there could be traces after you have visited that website, there is also a specific link providing you with tips to use that site in order to ensure that it cannot be traced. Kindly proceed to check the site www.1800respect.org.au. An interpreting service is also provided if you contact 13 14 15.

Never feel that you are alone, and you have to put up and shut up.

If you wish to discuss your legal options, please do not hesitate to contact Freedman & Gopalan Solicitors on 02 8917 8700.

 

 

Separation with your partner is certainly one of the most difficult times of your life. After separation, disagreements over parenting or/and financial matters is most common, especially because there are a lot of emotions involved. These disagreements can cause a great deal of conflict which is unhealthy for you and for the children.

It is easier said than done, to have your emotions aside while making decisions with regards to finances or parenting, after separation. However, there are avenues and courses available for people who have separated and are struggling to co-parent while living apart i.e. Parenting After Separation Program or Keeping Kinds in Mind, separated parents who are unable to deal with their emotions i.e. Circle of Anger or Managing Anger or even follow through the Orders made by the Court or agreed between your partner and yourself i.e. Parenting Order Program.

These courses assist you in developing a child-focussed approach, which is all you need on your coparenting journey, as you learn to parent together while living apart. Apart from that, these courses help you recognise and minimise conflicts while making decisions. You might neglect to notice, but children are also greatly affected/impacted. Groups are also run for children to help them deal with feelings and experiences associated with their parent’s separation i.e. Our Kids.

Also, there are courses and coaching available for parents are who are unprepared for facing the challenges of the legal process, particularly preparation for Court, or to have the best chance of coming to suitable agreements in Mediation i.e. Court and Mediation Readiness for Separating Parents. Prior preparation is essential but most of the times, emotions such as stress, anger, fears, ego and insecurity can get in the way, while making important decisions.

A few of the organisations that provide courses after separation are Relationships Australia (1300 364 277), Anglicare (02 9895 8144), Uniting Counselling & Mediation (02 8830 0700), and Catholic Care (13 18 19).

If you are struggling after separation and require any legal assistance, please feel free to contact us on 02 8917 8700, we can assist in directing you to the most appropriate course suitable for you and also assist in resolving the matter amicably and expeditiously.

 

Whether the relationship/ marriage has broken down, or you are still in the process of considering ending the relationship/ marriage, here are some practical considerations before walking out: -

  1. Take immediate steps to secure your data

Many couples share passwords and logins to bank accounts and other personal information during the relationship in order to more easily manage the family’s affairs. To ensure your interests are protected, ensure that all your personal accounts and passwords are changed. It may also be worthwhile to establish a new email account, particularly if you intend to retain a lawyer to assist you for your property settlement and parenting affairs subsequent to separating. Kindly start saving all important text messages, emails and photographs. It is imperative that you start recording and taking photographs of events, especially if you have been injured in any manner during a domestic violence incident.

  1. Ensure you have access to some funds

This may vary depending on your individual circumstances, but it highly recommendable that you have a secure sum of money (whether it be funds from your own or joint sources) which can be used for expenses such as obtaining initial legal advice. You may also need to consider monies in relation to setting up new accommodation if you intend on moving out of the premises. This would include a bond, a few months’ worth of rent, utility costs and an amount saved for food and other necessities.

  1. Secure your children’s passports, birth certificates and other important documentation

This is particularly important if your former partner has connections overseas, and there is a chance that the children may be taken overseas without your knowledge. Whilst a Recovery Order may be obtainable in these circumstances, prevention is always key and will give you a peace of mind. You may also want to consider placing your child on the Airport Watchlist if your intention is to commence legal proceedings soon thereafter. We would strongly recommend that you keep the original birth certificate, passport and other important documentation at a safe place that is only accessible to you and your close contacts.

  1. Secure your own documents.

It is paramount that you collate and secure your important documentation. This may include bank statements, tax documents, any registration documents and superannuation documents. You may also need to review your Will and Power of Attorney, and we would highly recommend you obtain legal advice if this is necessary.

  1. Inform relevant people of your separation

For your safety, particularly in domestic violence situations, it is essential to notify you close family or friends that you intend on leaving your partner.

You may also consider notifying your child’s school/ childcare to ensure there are immediate steps taken to ensure there is a joint authority of both parents to remove the child from the premises.

If you have joint bank accounts with your ex-partner, it may also be worthwhile to notify the banks of your intention to separate. This is particularly important to ensure the banks do not act on your ex-partner’s instructions without your consent.

  1. Consider the impacts this will have on your Will. 

If there are considerable assets that you are worried about, kindly ensure that your Will is updated, or you proceed to prepare your Will, in order to ensure that your assets are only distributed amongst your children and does not go to your partner in the event that something happens to you between now and formal separation or property takes place

If you are intending to walk out on your partner, we would highly recommend that you obtain independent legal advice. Our team at Freedman & Gopalan Solicitors is here to assist and guide you through these tough times. Please do not hesitate to contact us on 02 8917 8700 to speak with our lawyers, or feel free to leave an enquiry via email, and we will be in touch as soon as possible.

 

 

High-conflict situations post-separation can lead to the child preferring to spend time only with one parent, or even outright refusing to spend time with or contact the other parent. If this is the result of one parent deliberating alienating the child from the other parent, it is called parental alienation. If this occurs naturally, without manipulation by any parent, it will not be parental alienation.

Parental alienation is the specific process by which a child becomes estranged from one parent as a result of the psychological manipulation of the other parent. It can be a grave concern for some parents who are parenting after separation, and this manipulation can result in a fracture between the parent-child relationship that needs to be addressed immediately.

Examples of parental alienation include:

Parental alienation is both a legal issue and one which needs to be addressed with family therapists and psychologists with experience in these situations. Agreeing the terms of how parenting after separation will operate, with binding Consent Orders, and discussing these issues with your ex-partner is important in terms of not letting the situation go this far.

If you are parenting after separation and feel that the other parent is undertaking emotionally manipulative tactics to influence your child, please contact our offices, and we will assist you in understanding these personality traits and provide you with assistance and support, as well as in depth practical legal advice.

 

There are many reasons why a parent after separation may wish to relocate, or move cities, with their child, including financial stress, employment opportunities and the need to be close to family support. However, relocation is a difficult issue when parenting after separation, as both the child's best interests and the interests of the ex-partner come into play.

Parents may be able to reach an consensual agreement that one parent will relocate with the child while the other parent takes care of the child for longer periods of time in the school holidays and throughout the year. Alternately, both parents may relocate, but continue to be separated. If such an agreement is reached, it is highly advisable that the parties file Consent Orders in court, that outline the terms of the agreement reached.

If there is no agreement, the Court's permission will need to be sought. The Court is generally reluctant to give permission for relocation, given the non-relocating parent will lose significant time with the child. However, if the Court finds adequate reasons for believe the child's best interests are in relocation, then the Court may make the Orders, with arrangements for the other parent to spend set time with the child. The relocating parent has the burden of demonstrating the child's best interests are with relocation, as this is the paramount consideration in the eyes of the Court.

When considering making Orders, the Court will also consider:

If you would like assisting in relation to you or your ex-partner seeking to relocate with your child or children, please do not hesitate to contact Freedman & Gopalan Solicitors to discuss your options.

 

A Costs Agreement and Disclosure Statement is the initial documentation that a client will receive from law practice.

It is advisable to peruse the documentation carefully prior to executing and returning it to your solicitor. The said documentation governs how professional fees will be calculated for the work done, and when/if the disbursements incurred by the lawyer will be payable by the client.

A Cost Disclosure is to be enclosed in the Costs agreement by every law practice. The law practice must disclose details of its costs to you in writing before commencing any work for you. If you have a matter that requires urgent attention, then the law practice must disclose details of its costs to you as soon as is practicable.

There are different types of Costs Agreements. The most common types are the following;

1. Costs Agreement which provides for costs to be paid on a ‘time costing’ basis, that is, by setting out hourly rates which will apply by reference to the time taken to perform work on your matter.

2. A Fixed Fee agreement, which sets out a fixed amount for carrying out the work described in the agreement (which may be for a stage of the matter or for the whole of the matter).

3. No win- No Fee agreement, also known as Conditional costs agreement, which provides that the payment of some or all of the legal costs is conditional upon the successful outcome of the matter to which the costs relate.

In New South Wales, Costs Agreements and Disclosure Statements issued by lawyers are governed by the Legal Profession Uniform Law Application Act 2014, Legal Profession Uniform Law Application Regulations 2015 and the Legal Profession Uniform General Rules 2015. 42553

A few of the rights you have and that must be disclosed in your costs agreement are as follows;

1. Negotiate the costs agreement with your law practice;
2. To receive a bill of costs from your law practice;

3. To request an itemised bill of costs after you receive a lump sum bill from your law practice;

4. To negotiate the billing method with your law practice;

5. To request from your lawyer written reports about the progress of your matter and the costs incurred in your matter;

6. To apply for costs to be assessed within 12 months if you are unhappy with the costs;

7. To seek the assistance of the designated local regulatory authority in the event of a dispute about legal costs;

8. To accept or reject any offer the law practice makes for an interstate costs law to apply to your matter.

Kindly ensure that the Costs and Disclosure Agreement is thoroughly perused and understood and if you have any issues please do not hesitate to contact our offices via telephone on 02 8917 8700.

 

In the highly unusual circumstances now faced by Australian parents and carers, COVID-19 is having a significant impact upon public services. This includes the operation of the Court and the family law system. For example, there may be situations that arise which make strict compliance with court orders very difficult, if not, impossible.

For instance, compliance is challenged where orders stipulate that contact with a parent should occur at a designated contact centre, which has since been closed due to COVID-19. With the closure of many state borders, separated parents who live in different states may also find it difficult to comply with their shared parental responsibilities. In addition, there may be genuine safety issues that have arisen where parents wish to restrict the movement of a child from one house to another, in order to reduce the risk of that child’s exposure to the virus.

We then ask, what does this mean for you? How does COVID-19 affect your Parenting Orders, and what are your responsibilities in these unusual times?

Attempting to offer some guidance on this issue, the Law Council of Australia has recently published a top 10 guide for separated parents during COVID-19.

According to the guide: -

1. Parents must still meet their obligations where regulated by a Court Order, unless there is a reasonable excuse for non-compliance;

2. If arrangements become unclear or cannot be met (e.g. quarantine, travel restrictions, or because schools are closed), parents must use common sense to find solutions to challenges;

3. If a change in the parenting matter is anticipated, a parent must give the other parent plenty of notice and explanations so that adjustments can be made;

4. In the event that time arrangements with the other parent cannot occur, then parents are required to find other ways to maintain the connection with the child. This could include digital communications;

5. Parents are expected to make accommodations to the other parent, only if these accommodations are possible and in the best interests of the child;

6. Parents should strive to be open in their communication with the other party about the things you will each do in your respective households to limit the child’s exposure to the virus;

7. At this time, more than ever, there is a need for parents to find compromise in the interests of the child, so it is vital for parents to be solution focused and to be respectful and compassionate in all engagements;

8. There is a very high possibility that some people may lose their job or experience a reduction in their income during this period. Therefore, parents are expected to be understanding of the financial position and financial worry of the other parent, and should work together to find a solution;

9. Understanding that this situation will not resolve overnight, the Family Law Council recognises that parents will experience higher levels of stress, which will lead to family conflict. It is advised that parents remain calm and offer compassion when engaging with the other parent; and

10. Parents are encouraged to remember that they are the beacon for their children during this uncertain time.

Whilst we can appreciate that these are unprecedented times, we can expect further guidance to be delivered as more is known about the COVID-19. This creates a problem in itself as the information is constantly changing. Parents are therefore required to stay informed about their legal rights and responsibilities.

If you are concerned about COVID-19 and the impact it is having on your family law matter, please do not hesitate to contact us. Freedman and Gopalan Solicitors continue to be able to advise all clients experiencing family law issues by telephone, and arrangements can be made for video conferencing when appropriate.

 

Unfortunately, the current COVID-19 situation and the need to self-isolate at home has resulted in a surge of domestic violence incidents where partners in abusive relationships are living in greater proximity to their abusers than ever before. Below are some tips on what you can do: -

  1. If you or someone you know is impacted by domestic violence, you can contact 1800RESPECT which is a 24-hour national sexual assault, family and domestic violence counselling line for all Australians who are at risk or experiencing domestic violence.
  2. Of course, if you are in immediate danger, call 000 for Police or Ambulance.
  3. In NSW, the Department of Communities and Justice can assist you with accommodation. Due to the current situation, there have also been changes made to residential tenancy laws which in some cases allows you to terminate a lease without penalty if you are experiencing family violence. Further information can be found here: -

https://www.tenants.org.au/factsheet-12-domestic-violence

  1. Remember to always stay in touch with friends and family, even if you can only do so via text message or social media.
  2. Should the situation escalate, and you need to contact the Police, you may be able to obtain Apprehended Domestic Violence Order which is a legal document that will protect you from family violence.
  3. Your mental health and wellbeing are important during these times. A list of services and support contacts can be found here: -

https://www.health.nsw.gov.au/mentalhealth/services/Pages/support-contact-list.aspx

If you are 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.

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