Family Law Blog

In our latest Family Law Blog, Lawyer Madison Kelly outlines some key factors to consider when starting a new relationship or if you are considering a separation.

If you are thinking about applying for a divorce it is important to note that you must apply to the court for property orders within 12 months of your divorce becoming final. If you were in a de facto relationship, you are able to apply within two years from the date of separation. If you do not file within these time periods, leave of the Court will be required.

Unfortunately, sometimes matters ending up in the Family Court is inevitable.  Parties can become so entrenched in their positions, or their views of what has occurred throughout the relationship may be so diametrically opposed, that it is impossible for them to meet in the middle.  However, in most matters that Coleman Greig deals with, there are ways in which compromises can be reached.  

When two parties decide to separate, it is important to keep in mind that time is of the essence.  Both the Family Law Act and the associated court rules require strict adherence to certain time limitations, all of which are important for parties to a relationship breakdown to be aware of.

You may be thinking that it will be a while before same-sex couples start filing for divorce, although there are many couples in Australia who have been married for a significant period of time.

The emergence and popularisation of cryptocurrencies over recent years has added to the difficulties and complications associated with the financial side of family law proceedings.

Penrith LGA is currently one of the hardest-hit areas in the state with regard to reports of domestic violence.  Unfortunately, Penrith is not alone in these numbers – with the neighbouring Blacktown area showing the highest number of domestic violence incidents in NSW: with 2083 in the year up until March 2017.

eCommBook, a web-based app that stores all of the details that a book might, allows ex-partners to communicate with their kids and one another. The app’s objective is to make the post-separation process as smooth as possible and to curb violence and abuse between parents so as to shield children from the tension and hostility surrounding family breakdowns.

In a recent Judgment handed down in the Family Court, two solicitors were referred to the Office of the Legal Services Commissioner as a consequence of fees issued to their clients. The most important consideration is to take the following steps to ensure that a situation like that does not happen to you.

Generally speaking most assets in a divorce or separation, irrespective of whether they are from before, during or after the relationship, are included for the Court’s consideration. However, sometimes the Court is asked to take into account future assets.

In some instances of relationship breakdown, more than cash and property need to be divided. Animals or livestock can be a significant source of income for some parties, and can comprise a significant proportion of the asset pool.   

When there are accusations of violence by a parent towards a child in parenting disputes, the Court is often torn between making Orders to completely prevent contact and putting the child in a position where there is risk. The popular option is to make an Order for supervised time.

When dealing with property settlements in Family Law, the Court essentially adopts a four step process to determine the division of household contents and furniture.

Some twisted fairytales highlight the fact that Snow White, Sleeping Beauty and Cinderella all married Prince Charming. While the third time around may have been the charm for the hapless in love Prince, what happens in the real world when you would like to remarry but you’re still legally bound to your ex?

Recent articles confirm that data disclosing the identities of the “anonymous” users of the website Ashley Madison (a website that facilitates and encourages partners being unfaithful to each other), has been leaked online. What people may be surprised (and disappointed) to learn, however, even if there is an influx of family law matters, and the release of the Ashley Madison data is the reason for it, the fact that a person has been using the website bears little, if any, relevance to family law matters.

For most families, their pets (be it a dog, cat or guinea pig) are beloved members of the family - so what happens to “Fido” or “Mr Meow” when people separate? Given the integral part some people’s pets play in their lives, decisions concerning who becomes the primary carer for pets can be traumatic and often leads to increased tension and hostility in any family law separation.

Even if parents go through the lengthy and expensive process of obtaining Orders in relation to their children, it is a sad reality that one, or both, won’t comply with them. Although attending Court should always be viewed as the last resort, often a parent may need to bring a Contravention Application before the Court. As it sounds, a Contravention Application is an application to the Court indicating that the other party isn’t complying with an Order, and seeks Orders to address it.

Channel 9’s show, Married at First Sight, which aims to marry complete strangers, has caused uproar in parts of the community before it even makes its debut. The show is viewed by some as making a mockery of how relationships are formed, the ways people get to know each other, and decide to stay in a relationship. Advocates highlight that arranged marriages have a lower rate of divorce however the show may not help make the public aware of the reality of how difficult an arranged marriage can be.

It is common place, particularly in acrimonious property proceedings, that one party will seek to dispose of assets or otherwise arrange their financial affairs with a view to preventing the other person from receiving a share of an asset, or all of the assets, of a relationship. Should this be the case, a person has the ability to apply to the Court for certain behaviour to be restrained, or, if a transaction has already taken place, to reverse that transaction in certain circumstances.

Upon the breakdown of a relationship, it is usual for parties to need to come to considered agreement about how it is that the children in the relationship will be looked after. Often those arrangements are recorded in a set of Court Orders, which are binding upon the parties and can be enforced should they not be complied with. Court Orders however, are not for everyone.

I frequently have client’s ask how they can change the child’s name, or, how to resolve a dispute where the parents cannot agree to change the child’s name.

On ABC News last month, an article was published regarding Facebook being used as a weapon in Family Law matters and the increasing use of Binding Financial Agreements to deal with this issue.

Clients are often under the assumption that contributing a greater amount financially than their stay at home ex partner will entitle them to a greater percentage of the net assets in their property proceedings.

Relocation of children is one of the most difficult issues for a court to determine. In many circumstances following separation one parent may wish to relocate as a consequence of money difficulties, a new relationship or job opportunities.

Frequently we will have clients come in to seek advice in relation to family law matters and one of the first questions we ask is “when did you separate?” On numerous occasions we receive a response from a client saying, “I’m not sure” or “I don’t know if we are.”

There have been two cases in the media recently where family matters, with separated parents and custody issues of the children, have ended tragically. After the case of the missing father and his four year old daughter in Northern NSW, we have seen a similar story unfold in Melbourne last week with the death of an 11 year old boy and his father. Unfortunately, matters whereby people harm themselves or others as a consequence of marital breakdown are far too prevalent.

In doing my research for this week’s Blog, I came across an article written by a US celebrity divorce lawyer on the Top 10 Rules to follow after a divorce and in my experience as a family lawyer in Australia, I have to say I agree with all of them.

Celebrity relationships, marriages and divorces are splashed across the news on what seems like a daily basis. It is almost no longer surprising (for those that care!) at the news of each new relationship, marriage and sadly, separation in the celebrity world.

A client recently said to me, "My partner was an abusive, lying, cheating *&@#! Shouldn't I get more money from our property settlement for everything x has put me through???" I truly felt for my client after everything she had been through, but unfortunately the answer is generally “no.”

We see it in movies and television shows. We see it across the media. Many of us, also, see it in our own lives. Separation can, in many cases, lead to devastating consequences for the families and children involved. Often, spite can play a big role in the downward spiral. While it is easy for an outsider to think, ‘how can someone behave that way?’ for the spouse involved, it is quite a different matter. More often than not they will think along the lines of ‘where did it all go wrong?’ or ‘how can I get revenge?’

Sesame Street now teaching kids about divorce? When I was a child, I remembered Sesame Street teaching me my ABC, 1,2,3 and my colours. These days, apart from teaching kids these basics, the show has expanded to embrace more affective topics such as relationships, ethics, and emotions. One such topic (sadly, but probably necessary in this day and age I believe) is the issue of divorce.

Controversy surrounding Binding Financial Agreements – or pre-nups, as they are more commonly known – has again been enlivened by publicity surrounding the recent 'pole dancer case.' This case, as reported by The Sydney Morning Herald on 24 February 2013, is about a Mr Wallace seeking to set aside a pre-nup between himself and his former wife, whom he met at a pole-dancing club in Sydney. The agreement, signed by the couple prior to their marriage, required amongst other terms that Mr Wallace pay his wife $3,250,000 should their marriage break down within four years. The couple separated two years following their marriage and Mrs Wallace sought to enforce the agreement. However, Mr Wallace claimed it was invalid because he says Mrs Wallace lied when she told him prior to their marriage that she loved him and wanted to spend the rest of her life with him.

The media has recently reported on a Norwegian study which suggests that the more a man does in the home, the higher the divorce rate (“Divorce risk for couples sharing chores”, The Australian 28 September 2012). In fact, the study found that the divorce rate for couples who share housework equally was about fifty percent higher than for households in which women do most of the chores!

A recent Family Court decision has highlighted the hard, and sometimes unusual, decisions a Court has to take. In the July 2012 case, a man was given 14 days to recover his parents' ashes from a memorial garden he had created on his family farm. The ashes were buried in two large urns, with commemorative headstones marking their location, next to a bronze bust of the man's father who had died first. Unfortunately, the farm had been awarded to his former wife in a property settlement and he was therefore required to find another 'resting place' for his parents. Describing the decision as a 'kick in the guts' the man was not only upset about having to move the headstones and urns, but also the fact that the farm had been his parents home when they were alive. This decision seems very harsh. How could this happen, I hear you ask?

The speed in which Tom Cruise and Katie Holmes reached a divorce settlement would surely have won "gold" in any family law Olympiad! Leaving the world, and more to the point, the world's media, stunned by the outcome, Tom and Katie have recently proven that not all divorces need end up in the Court system. With the rate of divorce in Australia trending upwards and as many as two in every three marriages ending in divorce, a large portion of our population are now struggling with the impact of the breakdown of a relationship.

Dutch entrepreneur Jim Halfens has launched the "Divorce Hotel", a service that enables couples to check into a five-star hotel for a weekend and negotiate the terms of their divorce over the course of the weekend. So far, the service is proving successful for couples in the Netherlands and Mr Halfens has plans to expand into other countries including the US.

Everyone and their uncle has been putting in their 2 cents worth regarding the changes to family law violence legalisation; the women’s rights groups, the men’s rights groups, the children’s rights advocators, the media and a few others have joined the bandwagon. So I am not going to go over the whole changes again but I like to think that I am taking a commentators position, if you will, as the band wagon rumbles past.

Or your Father for that matter… Often when recounting how parties met, people tend to remember things like the time, the date, maybe even what they were wearing. One of my aunts recalls distinctly that she was having a “bad case of bad hair day”. You may (or may not) be interested to know that the Court is also concerned, in a way, as to how the parties met at the commencement of cohabitation and that is really not so much ‘how it was’ but more ‘how much they were worth’ at the time.

I came across an article in the SMH last week about the increase in Divorce Etiquette books across the UK. Now I am not going to comment about our friends the English and their unending pursuit of ‘decorum’ but I will say that the idea of etiquette between parties after separation is a lost cause. Now I am not being pessimist, nor am I saying that divorced parties lack decorum in their dealings with each other. Not at all. In my view how the parties behave after divorce is often the result of their behaviour during the divorce and before that the reasons for divorce.

It’s been a year since the divorce  was formalised(or two since the de facto relationship ended), the experience, along with the whole package has long been packed, dusted and consciously (or subconsciously) put to rest in the deepest darkest cavern of your memories, finally over. Or is it?

It seems that we still can’t get enough of all the ‘post baby bodies’. I’m into fashion and beauty as much as the next person but in the last couple of weeks it seemed that no matter which channel I tuned into, there was Miranda Kerr showing her post baby non-existent bump. Which in turn lead to images or footage of Doutzen Kroes, Eva Herzigova and Heidi Klum also parading to prove the possibility of strutting the catwalks only 2 months after giving birth. During this maternity media frenzy I came across an article in the Sydney Morning Herald which discussed not only the reasons behind these new catwalk mums being able to regain their pre-baby bodies (it is their established pre-natal exercise routines if you are wondering) but how motherhood has become beautiful and glamorous now after a period of appalling avoidance.

Regardless of how wealthy, important or famous a couple is, when they decide to separate or divorce the health and well-being of any children should remain at the top of their list of priorities. The recent separation of Jennifer Lopez and Marc Anthony has caused the celebrity websites and tabloid magazines to go into overdrive trying to cover (or more realistically, guess) the reasons for the split, who is at fault and what will happen next. It was therefore only a matter of time before the hot-potato issue of child 'custody' raised its head!

One of my favourite TV shows is QI, it’s fantastic. Add Stephen Fry to a mix of 4 comedians, one of whom is a core ingredient, Alan Davies, along with a batch of general questions and watch for 25 minutes. The result is guaranteed to be delightful and mentally challenging. For those familiar with the show, it is a well known fact that one of the reasons the show is so stimulating is because it addresses many misconceptions and misunderstandings that have hazily hovered in the recesses of our minds until they took the form of influential illusions. In the labyrinth of Law there exist familiar phrases of the kind the French like to call ‘faux amis’ or false friends. Those illusive terms that seem to give legal lingo its fluency. In Family Law there exist quite a few but I will only cover three of the most common.

An article in the June 2011 edition of the ‘Australian Women’s Weekly’ highlights the difficulties many families experience when dealing with the Family Court system, and illustrates how changes to the system may not suit every situation. As the writer of the article notes, the Family Court was initially established in 1976 as an approachable and more ‘caring’ Court – judges’ wigs were removed and a more informal approach was adopted. The subsequent removal of the need to prove who was at ‘fault’ in divorce proceedings then created a huge increase in the number of divorce applications and the Family Court has struggled to keep up with demand ever since.

We have all heard of the so-called “Oscar Curse” in which successful actresses reach the top of their game and win an Oscar, only to announce the end of their marriage or long-term relationship shortly afterwards. The recent experiences of Sandra Bullock, Kate Winslet, Reese Witherspoon and Halle Berry seem to confirm the notion that a highly paid, critically acclaimed and successful actress will end up ‘unlucky in love’. In Australia, we have seen the recent demise of Delta Goodrem and Brian McFadden’s relationship (just as Delta’s ‘star’ was rising in the US), rumours of trouble in Danni Minogue and Kris Smith’s relationship, and the end of other high-profile relationships with the demands of time spent apart, distance and hectic career schedules publicly blamed.

As Sydney ground to a halt in peak hour on Friday 13 May, everyone wondered why someone would go to such dangerous lengths as to stage a protest on top of the Sydney Harbour Bridge. It quickly became clear that the protestor, ‘Michael’, was a father raising his concerns over the systems we have in place to resolve family law issues and children’s services. Obviously in this situation, the father involved is feeling helpless and frustrated by his perceived lack of access to his children and the ways in which he feels the ‘system’ is letting him down. But can a protest on top of the Harbour Bridge make a difference?