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Co-Parenting after Separation? Welcome to the Apps of the 21st Century!

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Relationships break down for many reasons and unfortunately, it is not always on good terms. However, being able to amicably co-parent with your ex-partner is very important for children and family dynamic. Having potentially lost the stability of having a close family unit, it is important that children see their parents communicating and working towards advancing the children’s best interests.

Traditionally, co-parenting has been difficult and communication breakdowns are common. However, with the development of smartphones and new apps there are now several options to assist those endeavouring to co-parent in the 21st century.

 

What are co-parenting apps?

A co-parenting app is an application that you are able to download onto your phone or tablet which aims to provide easy communication regarding the well-being and needs of your children. They have in-built features such as calendars and schedules, as well as access to important medical information about the child/children. They may also have features that track shared expenses and payments, or reminders and alarms to help both parents keep up with the designated schedule.

 

What are the benefits of co-parenting apps?

Co-parenting apps seek to bring a sense of organisation and peace to what can be a very overwhelming and difficult process. Co-parenting involves a large number of considerations including schedules, appointments, expenses, exchange places/times, health concerns of the children, special occasions such as birthdays and holidays, and so much more.

Both parents being able to access all of this information in one place will bring more organisation and clarity to the co-parenting situation. Being able to coordinate both the big things, such as birthdays and sleeping arrangements, as well as the smaller things, such as school events and excursions, in one application may help to soften some of the difficulties of co-parenting.

Co-parenting apps may also be successful in minimising conflict that may arise if the parents were to privately text one another or speak through a third-party. By encouraging parents to resolve smaller issues regarding the children between themselves and through an app, there may be less disagreement and less interactions with the court. This is also likely to have a flow-on effect and positively impact the psychological well-being of the child.

 

Examples of co-parenting apps

SharedCare

This app contains features such as a shared calendar, care arrangements (including requests to swap days), an expenses recorder (including reimbursement requests), and a group news feed where other carers including grandparents, nannies and aunts and uncles can keep updated on important milestones and news.

 

Parentship

Parentship utilises features including custom calendaring, digital documents, reminders, and a smart profile that contains everything about the child in one place.

 

Cozi

Cozi is a free app with a hassle-free family calendar and other features such as being able to create to-do lists and even share recipes where children may have allergies or dietary requirements.

 

Our Family Wizard
A popular app used globally with a great deal of options and functions, designed from the ground up for difficult situations in which the Family Court is involved. This app can also give children a controlled level of access to information, as well as third parties and legal practitioners, where relevant.

 

We note that this is just a small sample of the various applications on offer.

 

Are there any concerns?

Some co-parenting apps may require a small payment or a subscription fee. Also, co-parenting apps will only be successful if the parents are able to set aside their personal conflicts in order to put the children’s interests at their very highest concern.  Co-parenting apps may not be appropriate in all cases.

Unfortunately, these apps will not resolve all disputes that may arise in parenting matters; however, they allow for effective communication and synchronised scheduling which aims to benefit the children in the long term. Our lawyers can advise whether a co-parenting app is the right fit for your matter.

If you have concerns regarding a Parenting Matter, please contact Carter Dickens Lawyers on (08) 9408 5212 and we will endeavour to provide you with comprehensive legal advice to assist in your matter.

 

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.

 

Pressure to Settle in Parenting Matters & Without Prejudice Offers

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Parenting disputes affect people deeply. When accusations are being thrown around, and in particular when children are being withheld from a parent, tensions can run high. A person can feel a strong desire to agree to parenting arrangements they feel are unfair because they want it to be over, or want their children returned.

 During negotiations, you might receive a proposed “Minute of Consent Orders” for parenting arrangements that you don’t agree with, but you may feel tempted to sign them to see your kids again. In most cases, each parent will believe that what they are proposing is necessary for the best interests of the children, even though their beliefs differ. 

 In some circumstances however, a party might choose to withhold children as a strategy to get the other party to sign their preferred parenting orders – rather than because they believe they need to withhold the children to keep the children safe. This is rare, but does happen. 

 However, communications exchanging proposals to settle are typically ‘Without Prejudice’, which means that the proposed arrangements cannot be adduced in evidence should your dispute end up before a judge.  If you think someone is trying to pressure you to agree in a way that demonstrates their bad faith, you may want to show this to the Court, to have the Court to take this into account.

 However, the general rule for ‘Without Prejudice’ communications is that they cannot be shown to the Court.

 

Without Prejudice Communications

 The term ‘Without Prejudice’ invokes a particular kind of legal privilege, which is specifically permitted for negotiating settlements. The privilege is that that communication cannot be relied on by the other party in Court proceedings. For example, it cannot be introduced as evidence claiming, for example, to demonstrate the weakness of that party’s case.

 Providing the other party’s without prejudice offers and communication to the Court is typically disallowed, and if they are filed by the other party, they will be struck out by the Court in line with this privilege, and for good reason. This is because the ability to engage in ‘Without Prejudice’ communications is generally to the advantage of both parties, as it allows them to make offers to settle a matter without fear of having the offer brought up later.

 This applies in the Family Court, it can be found in the Family Law Rules at 10.2:

 FAMILY LAW RULES 2004 – RULE 10.02 OPEN AND “WITHOUT PREJUDICE” OFFER

 10.02(1) An offer to settle is made without prejudice (a without prejudice offer) unless the offer states that it is an open offer.

 10.02(2) A party must not mention the fact that a without prejudice offer has been made, or the terms of the offer:

 (a) in any document filed; or

 (b) at a hearing or trial.

 The rule against providing without prejudice communications to the Court is a part of a broader set of rules regarding evidence.

 

Family Court and the Rules of Evidence

 The Family Court has a number of notable exceptions to the normal rules of Evidence. The ability to quote children’s speech, when they are not giving evidence themselves, which would normally be a breach of the Rule of Evidence against Hearsay, is the most well-known example, located at 69ZV of the Family Law Act (“the Act”).

 Family Law however can involve a number of other exceptions to standard rules of evidence. More generally, 69ZT “Rules of evidence not to apply unless court decides,” specifies the parts of the Evidence Act (Cth), which codifies the principles of evidence, which the Court may decide whether or not to apply in child-related proceedings as per the considerations in that section, and what weight to give them. This includes documents and other evidence including demonstrations, experiments and inspections, and evidence that is hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character.

 The important principle to keep in mind is that in parenting matters, the primary consideration is the best interests of the children. What is in the best interests of the children is determined by consideration of primary and secondary factors at s60CC of the Family Law Act.

 One interesting example of a departure from normal legal principles regards ‘Without Prejudice’ communication. Typically, if a party tries to put ‘Without Prejudice’ communication before the Court as evidence, it will be struck out and not considered by the Court.

 

Can Without Prejudice Communications ever be Submitted to the Court?

 However, there are exceptions, generally and in the Family Law specific to the normal ‘Without Prejudice’ principles.

 Sometimes, without prejudice communications will include content which go towards demonstrating a fact of sufficient significance that the Court may choose to allow their entry into evidence.

In Parenting matters, the best interests of the children are the primary consideration, as per s60B and s60CA. As such, if the other party provides ‘Without Prejudice’ communications, such as an offer that provides for orders which implicitly contradicts other assertions that have been made in Court documents, the court may be willing to enter the ‘Without Prejudice’ communications into evidence.

 This has been discussed in the WA case S and K [2007] FCWA 17, where Her Honour Justice Crisford identifies, at 28-32:

 28 It goes without saying that it is important to preserve confidentiality in relation to offers. Full and frank negotiation needs to take place between parties so that matters may be resolved without the need for further court action. Often in children’s matters, the very avoidance of litigation can itself be in the best interests of the children. Whilst children are not parties to the proceedings, they are well and truly the subject of the proceedings. The principles governing these sorts of proceedings are very different to those relating to property matters.

 29 However, whilst it is important for negotiation that confidentially be preserved, especially in light of the rules of the Court, I am of the view that the preservation of confidentiality is not absolute. One of the main purposes of the Rules is that cases are resolved in a just manner. The Rules do not provide a complete code of the Court’s powers. Other powers are found in the provisions of various Acts, the Court’s inherent jurisdiction and the common law.

 30 Hutchings v Clarke may well stand for the proposition that the issue of legal professional privilege does not operate to exclude evidence if in the discretion of the trial Judge such evidence is required to be put before the Court in order to preserve the best interests of the child.

 31 There is no doubt that it is important to preserve confidentiality and to foster an environment that allows parties to negotiate without fear they will be compromised in an endeavour to settle matters. However, offers can be made for a number of reasons and the overarching principle is always the best interests of the child. It is not the sole consideration but it is the paramount one.

 32 The Court should not be precluded from obtaining information to ensure that the principle is met, especially in cases of such naked acrimony as this.

 

As such, if you have been sent ‘Without Prejudice’ communications in a Family Law matter, where untrue claims are made or strict orders are being sought when the other party does not actually require those Orders, the Court may be willing to accept that correspondence of an offer to settle into evidence. 

Such a circumstance might be withholding children except when supervised by a professional supervision agency; while simultaneously making an offer that involves children spending time without any external supervision. 

However, other avenues for adducing the same evidence ought to be pursued first. The Court will be very hesitant to override the general rule regarding ‘Without Prejudice’ offers, as ‘Without Prejudice’ offers are a very significant element which benefit the ability to conduct settlement negotiations, and this privilege will not be dismissed lightly.

Indeed, settling a parenting matter by agreement may, in many cases, be very much in the best interests of the child, as ongoing proceedings may very well put children under stress, increase hostility between parents, and potentially require the children to be involved in proceedings to some degree.

As such; the possibility of successful negotiations, and thus ability to engage in these negotiations ‘Without Prejudice’, towards reaching parenting orders both parties may not like but are prepared to accept may well be a better outcome than the outcome of ongoing proceedings even should the party’s preferred orders be made and their concerns legitimate, given the impact on the children of ongoing proceedings. 

If you need advice about your family court negotiations, please contact us on (08) 9408 5212 for a free telephone consultation. 

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 case in question.

Will my illness or disability lead to an adjustment in Financial Orders?

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Often during the course of property settlements, it is asserted by one of the parties that they ‘deserve’ a larger portion of the asset pool due to reliance on certain factors. The factors relied upon are found in the Family Law Act 1975 (Cth), in particular Section 75(2) for married couples, and Section 90SF(3) for de-facto couples. Application of these provisions is seen as the third step (out of four) that Australian Courts typically undertake in making Financial Orders.

The four steps undertaken by Courts are generally set out as follows:

  • Identify and value the assets, liabilities and resources of the parties;
  • Consider the contributions of the parties made throughout the relationship;
  • Consider the future needs of each party; and
  • Determine whether the proposed settlement is just and equitable.

Essentially, at the third step the Court evaluates the future needs of the parties taking into account their individual circumstances. The aforementioned provisions set out 19 factors that may be taken into account by the Court in evaluating the extent of each parties’ future needs. The relevant subsections relating to adjustments for disability and illness are the following:

  • The age and state of health of each of the parties (s 75(2)(a)); and
  • The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment (s75(2)(b)).

Unfortunately, many Australians face challenges in their everyday lives associated with ongoing disabilities or illnesses. At Carter Dickens Lawyers we seek to assist those who may be vulnerable in financial settlements, and ensure they are aware of their rights and the impact their disability may have upon the expected distribution percentage they would receive from a Court ordered financial settlement.

 

Am I likely to receive an adjustment in my favour due to my disability?

The assessment of ‘future needs’ remains a discretionary activity undertaken by the Court. Therefore, it is difficult to say with confidence that an ongoing disability or illness will guarantee a percentage adjustment in your favour by the Courts.

However, there are precedent cases which appear to suggest a 5-15% adjustment may be made where one party suffers from disabilities and this impacts their ability to achieve gainful employment in the future. In particular, the case of Dritsas v Wilson [2008] FMCAfam 44 saw a section 75(2) adjustment in the wife’s favour of 10 per cent where the potential of future employment was essentially non-existent due to the extent of the wife’s disabilities and her age.

Although there appears to be precedent for making these adjustments, and the legislation specifically makes reference to age, health and the ability to gain meaningful work – each case is determined on an individual basis. We therefore recommend you seek legal advice on this matter if you are either going through a financial separation or are planning on seeking financial orders.

 

What if both myself and my ex suffer from disabilities/illnesses?

Unlike the circumstances aforementioned, in some cases both of the parties to a financial separation suffer from illnesses or disabilities respectively. This situation creates greater difficulties for Courts in evaluating the ‘future needs’ of the parties as both may have their own valid claims.

Again, this situation would see the courts exercise their discretion, and all factors would be evaluated prior to any Order is made. However, Nathan & Nathan [2007] FamCA 589 was an example where the Family Court of Australia deemed it equitable to make no adjustment. In this case, Justice Kay at [23] stated no adjustment would be made out for the following reasons:

“A global view of this case shows two people with very limited earning capacity, two people with significant medical disabilities.  They are both aged 46.  Neither of them has a very secure economic future to look forward to.  The husband appears able to live on his wits.  The wife has secure employment at least with some modest superannuation available to her.  It does not seem to me to be a case in which any s 75(2) adjustment is appropriate.”

Essentially, where in the Courts discretion the parties equally suffer from limited earning capacities and significant medical disabilities/illnesses, it may be just and equitable to make no adjustment for future needs, instead opting for an equal split of the asset pool.

From the situations discussed, it is clear that the Court is empathetic to the plight faced by those with illnesses and disabilities; however, the extent to which this will impact Financial Orders depends on scope of the facts at hand. If you believe that the section 75(2) factors discussed in this article may apply to your circumstances, please contact Carter Dickens Lawyers on (08) 9408 5212 for a free 15-minute consultation with one of our lawyers.

Carter Dickens Lawyers specialise in Family Law and Financial Disputes. We pride ourselves on our ability to provide legal assistance and advice, including on niche areas of law, such as the impact of disabilities on expected percentage distributions from Financial Orders. We will ensure that you are fully informed of any rights and risks associated with your divorce or financial matter.

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.

Pet Custody

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The issue of ‘Pet Custody’ has become a prominent concern in the Australian legal landscape. Despite often treating our pets as members of the family, Australian Family Law continues to view our pets as a form of ‘personal property’. As such, pets are treated like other items in the asset pool, and may be divided between the parties.

 

The ‘Value’ of Pets

Unfortunately, the value we attribute to our pets does not often reflect the market value Courts will allocate to them. Unless the pet is a purebred or pedigree show dog, there is likely only a nominal value attributed to the pet in comparison to other relationship assets.

Should a significant value be attributed to the pet for particular reasons, it may be necessary to provide evidence to the Family Court verifying this amount.

 

How is Pet Custody decided?

Courts are generally reluctant to get involved in lengthy arguments between parties regarding the custody of their pets. The preferred resolution is often for parties to settle between themselves a custody plan for the retention of their pets. Should Family Court orders be required, the resolution of this matter is often conducted in a similar vein to that of other personal property allocations.

The following are a range of discretionary factors the Family Court may take into account in determining which party retains ownership and care of the family pet:

  • Which parties’ name the pet is registered in.
  • Which party undertakes the majority of the responsibilities involved in caring for the pet (day to day care)
  • Which party has appropriate housing for the pet and who can satisfy the pets future needs.
  • The ability to pay for stabling or training needs, particularly if the pet is a horse or other farm animal (economic needs).

 

Can you have Shared Custody?

Despite these factors often resulting in sole custody by a single party, it is well within the courts discretion to make orders to the effect of a ‘shared custody’ plan. Such orders are unlikely to be made, unless the orders are consented to by both parties.

Instances where the court is likely to make this type of order is where it directly reflects the ‘best interests’ of children. Should there be children of the relationship in addition to a family pet, it may be deemed by the Family Court to be in the children’s best interests for the pet to follow them between their parents’ homes. This may give the children a sense of familiarity and stability following the breakdown of their parent’s relationship. Additionally, the pet may provide a therapeutic or medical benefit which requires shared custody.

Carter Dickens Lawyers excel at providing legal assistance in all areas of Family Law. We will ensure that you are made aware of all options moving forward and may aid you in the drafting of orders pertaining to the ownership, possession and shared care of your pets.

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.

Parenting Preparation during the Coronavirus Pandemic

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The Coronavirus pandemic (COVID-19), whilst creating special challenges for all, may particularly affect separated or divorced parents with young children. With the situation rapidly evolving, the long-term outcomes remain to be seen. In light of such uncertainty and the extra stress associated with the COVID-19 pandemic, it can be hard to manage stress for both parents and children alike. However, the following suggestions below may assist separated parents in working through this difficult time:

  1. Adapt and Communicate

In light of COVID-19 and the surrounding anxiety, parents may become angry with the decisions of their ex-partners regarding the children. However, during this time it is important to ensure that parents stay focused on the best interests of their children. Whilst difficult, this will require compromise and polite communication between parents to ensure that needless conflict is avoided. This is a time when the last thing children need to see is their parents fighting about them.

As the impact of COVID-19 on Courts remains unknown, it is uncertain if the Courts will suffer delays. It may be the case that the Courts will have limited availability, with dispute resolution services becoming scarce. As such, separated parents must attempt to resolve issues and manage matters between themselves to avoid long delays. If you have not already done so, it may be useful to consider discussing personal policies regarding the children’s care with your ex-partner. This may include discussing:

  • How time with the children will be divided should school closures occur?
  • Where will changeover occur? Do you have a plan for another location should your current venue become inaccessible?
  • How will the children’s safety and health be maintained?
  • How will you follow government advice about large gatherings such as weekend sporting events?
  • What activities are you both happy for the children to engage in during holidays or otherwise?
  • How you will discuss this scary matter with the children so that they are informed but not panicked?

In certain situations, it may also be worthwhile implementing a parenting plan between yourself and the other parent to address the above concerns, and more, quickly without the need to go to Court. Parenting Plans provide flexibility and can allow for arrangements between parents to be changed as the circumstances require. However, having a Parenting Plan in place does not mean you can neglect any obligations under existing Court orders or agreements.

If you are unsure about how to create a Parenting Plan or are having trouble communicating with your ex-partner, CD Lawyers may be able to assist you. For more information please contact our office.

  1. Continue to meet your obligations

Whilst we are currently living in unpredictable times, that is no excuse to neglect your obligations under a court order or agreement regarding your parenting matter. If for some reason you are unable to meet your obligations, say because arrangements are unclear or because of extenuating circumstances (e.g. school closures or quarantine), you must attempt to find a solution. At the very least, it is essential that where a change is anticipated, you communicate with the other parent providing them with ample notice and information.

If you are having difficulty meeting your obligations CD Lawyers can assist you.

  1. Stay healthy and follow government guidelines

Ensure that you and your children practice healthy hygiene habits to minimise the risk of spreading germs and viruses. Frequently and thoroughly washing your hands, as well as practicing responsible social distancing will reduce the risk of illness both to your family, friends, and others.

Setting an example for children is the best method of ensuring they learn these practices. As such you should let the other parent know you are following these healthy practices to ensure consistency across households.

For more information and access to the Government guidelines please visit:

https://www.health.gov.au/news/health-alerts/novel-coronavirus-2019-ncov-health-alert/what-you-need-to-know-about-coronavirus-covid-19#protect-yourself-and-others

  1. Be Patient, Positive and Compassionate.

It is important to understand that in these coming months COVID-19 will bring special challenges. This situation will not be resolved overnight, but will require long term changes to the way we work, socialise, communicate and parent.  Despite the stress and anxiety, it is important to think about how you would like the other parent to engage with you about parenting issues and to reciprocate that engagement.

Understand that a certain degree of flexibility will need to be maintained with the other parent to ensure the children are taken care of. The current events are unprecedented and unplanned for. However, maintaining open and positive communication with the best interests of the children in mind will likely reduce conflict and ensure you can focus on your family and not on costly litigation. However, if the other parent is being unreasonable, and you have followed the required pre-action procedures, it may be necessary to issue court proceedings, and we can advise you on this.

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.

Joint Tenancy: Will a Financial Settlement Require Us to Sever?

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When determining a financial settlement, the Family Law Act 1975 (Cth) is clear that there must be finality. That is, there must be a ‘clean break’ between the parties with no ongoing financial connection so as to avoid future proceedings between them. But what happens if you want to remain co-owners?

What is joint tenancy?

Most couples hold property as ‘joint tenants’ – that is, they equally share ownership. If one joint tenant passes away, their interest in the asset automatically passes to the other owner(s). This is known as the right of survivorship.

‘Tenants in common’, on the other hand, hold a defined share of the property which is separate from the other owner. This interest forms part of the estate of each owner and, on their passing, is distributed according to their will.

What happens if we want to remain as joint tenants?

Of course, the most logical step to take when seeking a financial settlement is to sever your joint tenancy so as to eliminate the right of survivorship and ensure your interest forms part of your estate. The parties will then become tenants in common, and their interest becomes separate and distinct.

However, sometimes this option does not suit everyone. For example, what if the asset in question is a successful business and, while the parties want to end their personal relationship once and for all, they want to remain business partners?

In Vancovich v Dunfield [2016] FamCA 393 a husband and wife lodged consent orders with the Family Court seeking to remain as joint owners of a business, but the Registrar refused to make the orders on the basis of the ‘clean break’ principle. On review, the Court of Appeal accepted that, given the parties had obtained independent legal and financial advice, the proposed orders were ‘just and equitable’. This was decided on the condition that any further proceedings in relation to the co-ownership are to be brought under the Corporations Act 2001 (Cth) and not in the Family Court.

As such while the Court is willing to make exceptions, its reluctance in doing so clear; you must demonstrate some exceptional circumstance which explains why severing the joint tenancy would be unjust and unequitable.

So what can I do?

At CD Lawyers we specialise in drafting consent orders which cater to your specific needs. While remaining as joint tenants for the indefinite future may be off the table in non-commercial settings, we endeavour to meet the requirement of finality whilst allowing you to remain as joint tenants as long as necessary to serve the purpose of your special circumstance.

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.

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