Logo

What if my child refuses to see the other parent?

by

One of the most common issues parents face is defiant children. For separated parents, this issue may arise when handover is looming. So, what can you do when the kids are kicking, screaming and telling you that there’s absolutely no way they’re going to spend time with their other parent?

This issue was addressed in the matter of Cartland v Cartland [2014] (“Cartland”), by Judge Terry of the Federal Circuit Court. The father in this matter filed a contravention application against the mother because their two children, who were 11 and 12 years old, were not spending time with him in accordance with the parenting orders. The father gave evidence that the mother would bring the children to handover and sit silently in the car while the children told the father through the rolled down window that they would not spend time with him.  The mother would then drive the car home, taking the children with her.

When dealing with contravention applications of this nature, the Court is of the view that failing to handover the children pursuant to the orders is not considered a contravention if there is a ‘reasonable excuse’ for not doing so. When deciding whether you have a reasonable excuse, you should seek legal advice.

In Cartland, the mother argued that she complied with her obligations by attending handover and making the children available to the father, but she had a reasonable excuse for the visit not going ahead: the children did not want to go.

The Court disagreed; the mother had not discharged her obligations pursuant to the orders. Judge Terry was critical of the mother’s behaviour, finding that her passive behaviour taught the children that it was reasonable to refuse to spend time with the father. In order to comply with the handover order, the mother had an obligation to positively encourage to spend time with the father; “parents must make a reasonable effort and take positive steps to bring about a change in the attitude and wishes of the children”.

Importantly, each case is different. Many factors will be taken into account when determining what is reasonable in the circumstances, such as the children’s age, maturity and ability to make decisions for themselves; history of proceedings; and family violence. However, the following general guidance may prove helpful when navigating this issue:

  1. You must physically take your child to handover, pursuant to the relevant orders.
  1. If the children express to you or the other parent that they do not want to spend time with the other parent, you must take positive steps to change their attitude. For example, you could:
    1. before the visit, tell your child they will have a good time with the other parent; and
    2. after the visit, talk to your child about what they did with the other parent and raise positive talking points. For example, “you went to the beach with Dad? That’s great! Did you build a sandcastle?”.

After taking positive steps, you will hopefully notice an improvement in your child’s attitude. However, if this isn’t the case, you will at least have a stronger argument for a reasonable excuse.

Coping with Christmas – 10 tips for separated Mums and Dads

by

For families with separated parents, coping with Christmas can be a time of disappointment and disagreement. Rather than opening presents first thing in the morning and happily gorging yourself with far too many mince pies, separated parents might find themselves a little sad during what should be a joyful time. Caught in the middle of this are children who just want to enjoy the festive period.

With substantial experience in family law, our lawyers have ten top tips to help separated parents make the most of coping with Christmas:

  1. Plan ahead. If you’re not sure whether the kids will be at your house or your ex’s on Christmas morning, now is the time to make arrangements.

 

  1. Remember that Christmas is a time for your children. Practical steps to prioritising the children’s best interests include asking them what they want to do over Christmas, listening closely to what they say and putting their wishes ahead of your own. The kids want to watch The Grinch on Christmas Eve instead of It’s a Wonderful Life? Maybe suck this one up, Dad.

 

  1. That being said, parents should always call the shots. If children’s wishes can’t be met (for example if, despite their pleas, you can’t make it to the North Pole to visit Santa and his elves this year because of border closures), explain to the children why they can’t do exactly what they want to do over Christmas. Young children are not decision-makers – that’s your role.

 

  1. Build the children’s excitement by telling them everything they can expect on Christmas day. Who is coming over? What are you eating for lunch? Most importantly, when can they open their presents? This serves the dual purpose of encouraging some festive excitement and keeping them involved in the plan for the special day, causing them to feel involved.

 

  1. Allow your children to take items of comfort between homes. This is particularly helpful if the children are young, as they are more likely to have a favourite and familiar item which will help them settle into the other parent’s home. If one of the children accidentally leaves an item of comfort with you after handover, organise for it to be returned as soon as possible.

 

  1. Be flexible. While each parent should try to abide by the agreed care arrangement, sometimes things happen. If the children are half an hour late to handover because your ex’s Christmas family lunch went a little over the planned time, suggest the children spend an extra half an hour with you to make up for this. Be practical, not argumentative.

 

  1. Avoid conflict. Although emotions are heightened over the festive period, especially if Christmas isn’t living up to what you had hoped. It’s important to avoid conflict when the children are present. The quickest way to ruin Christmas for your children is to argue in front of them.

 

  1. Handover should not be stressful. If seeing your ex is usually a tense affair, enlist the assistance of a third party to facilitate handover for you. For example, a family member or friend. Avoiding your ex entirely is sometimes the key to keeping negative emotions at bay.

 

  1. Seek legal assistance if you need to. You could do everything in your power to plan the perfect Christmas around your difficult ex, and they still might not cooperate. In such a scenario, remember that our office does not shut down for Christmas until 24 December 2020, so there’s still plenty of time to reach out for assistance.

 

  1. Finally, always remember there are many social services open over Christmas if you need help. The contact information for various services who specialise in providing assistance to different people in different circumstances can be found via the following link: https://www.whiteribbon.org.au/Find-Help/Help-Lines.

 

If you would like to discuss your personal circumstances with one of our experienced family lawyers for coping with Christmas, please contact our office today on (08) 9408 5212.

Parenting arrangements and Christmas: don’t leave it too late!

by

“It’s the most wonderful time of the year!” … except when it’s fraught with arguments because your ex won’t agree to a Christmas parenting arrangement. Arguing about where the children will spend Christmas isn’t very festive. In light of the whirlwind of 2020, we all deserve a much more relaxing and joyful end to the year. For this reason, you should seek to make Christmas care arrangements well in advance so you can enjoy the lead up to the festive period without any unnecessary stress.

What can I do?

The Family Court’s deadline for applications to be heard before Christmas was 13 November 2020. If you haven’t already filed an application seeking orders for Christmas care arrangements, the Family Court will be unable to assist you this year. It’s time to ramp up your negotiation efforts.

If you’re on amicable terms with the other parent, you might be able to agree to a care arrangement on the basis of a few informal conversations. However, it’s not always that easy. Engaging the assistance of a lawyer to negotiate on your behalf is often an investment worth making.

If you still can’t agree, it’s not too late to attend mediation or an informal conference. Often the involvement of an experienced third party can help warring parents resolve parenting disputes, even if the short-term ones.

What should I propose?

Some options you might consider are as follows:

  • A common compromise on Christmas day is for children to spend their time with one parent in the morning and with the other parent from midday onwards. This allows for the children to spend equal time with each parent on the special day.
  • Often, parents agree to alternate the arrangement each year. That is, if the children spent Christmas morning with mum this year, they’ll spend Christmas morning with dad next year.
  • If the children can’t spend time physically with one parent (say, they’re currently abroad), spending half an hour on video-call might make their day.
  • Sometimes, one parent might have family traditions that the children participated in each year prior to separation. If the children look forward to this each year, it is likely in their best interests to ensure this annual tradition is not broken, even if it means one parent might have a little less time with them over Christmas.

Of course, what works for one family might not work for the next. You should obtain legal advice about the suitability of specific care arrangements in your circumstances. Our lawyers are well-versed in family law disputes, including those specific to the festive period.

What if I don’t get what I want?

Christmas is a time for family. There is nothing more festive than being woken up at 5am by your children bouncing on your bed and asking whether Santa has been, or falling asleep on the sofa watching Christmas movies with the kids. Parents disagreeing about care arrangements has the potential to ruin the “ideal” Christmas. When this issue rears its ugly head, there is only one thing to remember: the children’s best interests are the priority.

It isn’t about what the adults want. If you wanted to wake up with the children in the morning but your ex is insisting otherwise, be flexible and compromise. The earlier an agreement is reached, the longer you have to plan your time with the children to make sure it’s their best Christmas yet.

Please note the above is general in nature and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your legal matter.

I just want a divorce – but my ex won’t accept the paperwork

by

You may be familiar with the line in police and legal dramas where documents are handed over saying, “you have been served.”

In a Family Court context, the first time documents are served in a particular matter must be by the default method of “Special Service” – this is service where you prove to the Court that the documents have been received by the other party, before the matter can proceed. 

Service of Court documents is an essential, if sometimes frustrating, part of the process of beginning Court proceedings. It is essential, because the Court must be confident that the other party to proceedings is aware that the Court proceedings exist, so they have an opportunity to respond. 

This is typically done by an “Affidavit of Service” and either an accompanying “Acknowledgement of Service” and “Affidavit Proving Signature,” or the Service Agent swearing that they positively identified the person, such as by photograph, before leaving the documents for them. So far so good – these are provided in the Family Court “Service Kit” with instructions. 

In an application for Divorce, for example, either person can apply for divorce, even if their spouse wants to stay married. The other person can’t refuse to be divorced – either person can end the marriage, but the objecting party might attempt to avoid service of the documents, to avoid getting divorced, or simply to be frustrating. 

This might be in the form of refusing to reply to emails, refusing to identify themselves or come to the door. Sometimes it involves barricading themselves in their home, behind high fences.

This calls for what is known as “Substituted Service,” or “Dispensing with Service” 

 

Substituted Service 

In the Family Court context, this is where an application for substituted service comes in. If a person won’t accept service, you can apply to the Court to ask that service via an alternate method be “deemed” to be effective. 

The rules about service are located at Chapter 7 of the Family Law Rules. In particular, rule 7.18: 

 

FAMILY LAW RULES 2004 – RULE 7.18

Service with conditions or dispensing with service

 

(1)  A party who is unable to serve a document may apply, without notice, for an order:

(a)  to serve the document in another way; or

(b)  to dispense with service of the document, with or without conditions.

 

(2)  The factors the court may have regard to when considering an application under subrule (1) include:

(a)  the proposed method of bringing the document to the attention of the person to be served;

(b)  whether all reasonable steps have been taken to serve the document or bring it to the notice of the person to be served;

(c)  whether the person to be served could reasonably become aware of the existence and nature of the document by advertisement or another form of communication that is reasonably available;

(d)  the likely cost of service; and

(e)  the nature of the case.

 

(3)  If the court orders that service of a document is:

(a)  dispensed with unconditionally; or

(b)  dispensed with on a condition that is complied with;

the document is taken to have been served.

 

Note: An application under this rule is made by filing an Application in a Case and an affidavit (see rules 5.01 and 5.02).

 

The most common way to accomplish substituted service is via an email address. 

However, to do this, you must address the factors at Rule 7.18 (2) to the Court, via an accompanying affidavit statement. 

In an email example, this could potentially be demonstrated with the following evidence: 

  1. A statement regarding the email address of the other party 
  2. Other attempts at service or why other methods were not attempted, for example: 
    1. The cost of service – perhaps exorbitant to serve documents in another country and have an affidavit sworn in English
    2. Evidence of unsuccessful attempts at skip-tracing
    3. A statement that their address is unknown
  3. Evidence of historical use of the email address, that demonstrates that the person using the address is the relevant person
  4. Evidence of recent use of the email address, which will show the Court that emails sent recently will likely be seen by the recipient. 

 

If email is impossible, it might be time to consider alternative approaches; such as:

  • Newspaper advertisements; 
  • Private investigators; or even
  • Getting in contact via mutual acquaintances.

Ultimately, a decision regarding whether a particular method of substituted or dispensed service is at the discretion of the Court, so putting the best evidence before the Court to show that service has been affected is essential. 

If you would like assistance with a substituted service application, Carter Dickens Lawyers is experienced with these, and all manner of Family Court applications.

 

Please note the above is general in nature and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your legal matter.

Consideration of Inheritance in Property Settlements: Who’s Entitled to What?

by

How Does Financial Separation Work?

There are four ways financial separation can occur:

  1. By Orders of the Family Court of Western Australia;
  2. By Consent Orders;
  3. By Binding Financial Agreement; or
  4. By Informal Agreement.

You should seek legal advice from a lawyer experienced in Family Law property matters to determine the best form of financial separation for you.

When finalising your orders formally, there is an expectation that Orders or an Agreement should completely sever the financial ties between the parties, known as the clean break principle, and then ‘vest’ any property a party is entitled to in the name of that party. In doing that, it means that except in very limited circumstances, your ex should not be able to come back and try and seek further funds from you.

 

What Happens if I receive an Inheritance Payment Prior to Financial Separation?

It’s not always simple to come to an agreement on financial separation, and there is always a risk if you only come to an informal agreement, that your ex can try and come back later and seek more funds from you. This may occur where one party receives an inheritance after the death of a parent.  

There is a common misunderstanding that inheritance received after separation, or towards the end of the relationship will not be included in the asset pool. This is not always correct. Assets obtained post-separation or to benefit only one party are still considered a part of the asset pool. The Courts starting position is that all assets obtained, during the relationship and even post-separation is to be considered during a property split. This is often referred as the “global approach” and whilst it is common, there are exceptions to the rule. If a party wishes to “quarantine” inheritance then they must be able to show there are sufficient funds in the asset pool to ensure a just and equitable division and that the other party can still receive a fair portion of the asset pool without having to take from the inheritance.

When it comes to inheritance, relevant considerations include, when the inheritance was received and the nature of the relationship between the deceased and the other party.

 

Timing

If the inheritance was received early in the relationship or even before the relationship commenced, it is usually treated as an initial contribution of that party and is a relevant factor in the division of assets.

If the inheritance was received during the relationship it can be considered to be used for the “betterment of the family or the couple” and is likely to be considered a contribution to the relationship and not to the benefit of either party. The exception to this however is if the deceased makes it very clear that the inheritance is only to benefit the inheriting party. In which case, the funds would likely be considered as a financial contribution by the inheriting party and there would be some recognition in the division of the asset pool of the money provided.

If the inheritance is received post-separation, there are two ways it could be treated, and, depending on your individual separation will depend how it is treated. It will be treated as either:

  1. Part of the global assets; or
  2. A quarantined asset

 

Relationship Between the Deceased and the Other Party

When deciding if an inheritance should be shared between the spouses in a financial separation, the court considers the intention of the deceased. If the deceased appears to have left the inheritance for the betterment of the entire family, a court is likely to include it in the asset pool despite the receipt of the inheritance being after separation. On the other hand, if it appears to have been left only to the named beneficiary, it is likely to be kept apart from the divisible assets. Similarly, the court will look at the relationship of both spouses with the deceased to discern what the intentions would have been.

Essentially, if the inheritance is received before finalising Consent Orders for the property settlement, it is possible that it may be included in the asset pool. It is best to seek legal advice on the possibility of including or protecting an inheritance from being included.

For advice on financial separation, especially if you are aware you or the other party will be, or have, received inheritance or the likelihood of inclusion of an inheritance after separation, contact us on (08) 9408 5212 or info@cdlawyers.com.au to book a meeting.

 

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

When Are Family Property Orders Really Final? Challenging an Order

by

Most clients want complete certainty and a ‘final deal so I can move on with my life’ when it comes to resolving the matter, especially when it comes to finalising financial separation matters.

Under Section 81 of the Family Law Act 1975 (Cth) (‘the Act’), the Court has a duty to make orders that as far as practicable, will “finally determine the financial relationships”. This is commonly known as the “clean break” principle, and it is an attempt by the Court to ensure that the parties are no longer financially reliant on each other and to attempt to stop any further litigation between them with regard to financial matters.

There’s always a risk though that the ‘final’ agreement isn’t the right agreement. What if, for example, there’s a change of circumstances and you cannot comply with the orders? Or you find out your ex had hidden assets? Or trying to comply with the orders is going to cause you significant financial hardship? In these situations, having orders as “final” may be problematic. With this in mind, Section 79A of the Act gives the Court the power, in their discretion, to potentially ‘set aside’ or vary financial orders.

Note that Section 79A only applies to financial orders, NOT parenting orders.

 

What is Section 79A?

Section 79A provides the circumstances by which a Court may set aside or vary existing financial orders. The scope of this section is quite limited, a matter of changing your mind will not be enough to have an order set aside. There must be evidence of:

  • Miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance;
  • Where circumstances have arisen since the order was made whereby it is impracticable for the order to be carried out;
  • Where a person has defaulted in carrying out an obligation imposed upon him or her by the order;
  • Where, in exception circumstances, the applicant will suffer hardship if the court does not vary or set aside the order; or
  • Proceeds of crime order has been made covering property of the parties.

Section 79A applications can be made by any party affected by an order of the Court, and is usually done as a result of a disagreement, if both parties are affected and wish to change the orders they may also make an application to vary or set aside orders by agreement, also known as consent.

 

Will a Section 79A be Easy?

Section 79A matters are legal complex (both as an applicant or a respondent – we represent both). If you are considering making one of these applications, you should strongly consider seeking legal advice. At Carter Dickens Lawyers we have experience and knowledge with regard to Section 79A applications.

Contact our Office on (08) 9408 5212 to arrange an initial appointment to discuss the merits of your case with one of our lawyers.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

Contact Us

Suite 102, 126 Grand Boulevard, Joondalup WA 6027

Phone: (08) 9408 5212

info@cdlawyers.com.au