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I think it’s time you leave! – Your rights to ‘Exclusive Occupation’ of the Family Home

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Separating from a spouse or a significant other can be stressful at the best of times. Typically, issues arise where both parties refuse to give up their right to reside in the family home. This begs the question, who has the right to remain in the family home?

Ordinarily, one or both of the parties will agree to move out of the family home in a bid to move on and sever their ties to the relationship. However, in some circumstances both parties will refuse to leave the family home, which often results in a hostile living situation.

In these circumstances, an aggrieved party may apply to the Family Court of Western Australia for an exclusive occupation order. The Court may grant this order where they consider it ‘proper’ in the particular circumstances of that case. The power to make a “sole use and occupancy” order is by way of injunction. For married or de facto couples, these orders are made by reference to sections 114(1) and 114(2a) of the Family Law Act 1975 (Cth), respectively.

Where the matter involves children, the Court may grant one of the aforementioned injunctions to restrain a party from entering or remaining in the child’s place of residence if they deem this action necessary to protect and advance the welfare of the child. Essentially, the Court’s paramount duty will be to protect children from psychological stresses caused by friction between parents, and this is primarily encapsulated by the Court’s obligation to make orders that prioritise the best interests of the children.

 

Matters involving children:

 In the case VCM v KRM [2005] FMCAfam 108, a mother who resided with her husband and 3 children sought exclusive occupation of the family home. In making its decision to grant the exclusive occupation of the family home to the mother and the children, the Court had to determine whether this order would be in the children’s best interests.

The Court turned its mind to several circumstances, including but not limited to the fact that:

  • The parents often fought verbally;
  • The parents fought physically; and
  • The children were in the care of the mother.

In making this order, the Court essentially restrained the Father from occupying the family home as the circumstances of the case were such that the Court deemed it in the children’s interests that they reside solely with their mother at the family home.

 

Factors considered in making an Order for Exclusive Occupation:

 The Court will take into account a number of considerations when deciding whether a particular party should gain the right to solely occupy the family home.

The overarching consideration of the Court is as to the practicality of granting exclusive occupation, having regards to the realities of family life (Bassett v Bassett [1975] 1 ALL ER 513, 520)

The relevant factors outlined in recent case authority is as follows:

  1. Needs of children
  • If children are involved, then the needs of the children are a matter that is always at the forefront of the Court’s mind when making a decision. We note that it is common for the party who cares for the children to be provided exclusive occupation of the family home (In the Marriage of Gillie).

 

  1. Likely Hardship to the children or either party
  • The Court will also take into consideration the hardship that will be suffered by both parties from an emotional and financial perspective if exclusive occupation is not granted to them. If there are children involved, then their needs will be given paramount consideration.

 

  1. Practical effect on Family life
  • The practical effect of an order is a primary consideration of the Court. This factor is assessed with reference to the realities of family life should one party gain rights to exclusive occupation over the other (Basset v Basset).

 

  1. Means of the Parties
  • The Court will also consider the means and needs of the parties. This involves the Court turning its mind to the costs involved in moving homes and finding alternative accommodation. The Court will also consider whether or not the home subject to the order is used as an integral part of either of the parties’ business operations (Mafrica v Mafrica).

 

  1. Conduct of the Parties
  • Finally, the Court will take the conduct of the parties into consideration when deciding whether or not one party should be granted exclusive occupation over another. This relates to whether physical or verbal abuse has been directed to one party by the other.
  • This becomes a particularly relevant factor where the abuse is such that one party fears for their safety or the children’s. In these circumstances, the aggrieved party will often be successful in an application for the exclusive occupation of the property (In the Marriage of Davies).

 

The Court in Saveree & Elenton noted that the factors considered are non-exhaustive and each case must ultimately be determined on its facts. The Family Court will only make an order for exclusive occupation where it considers this action to be ‘just and fair’ in all of the circumstances.

 

If you require assistance with any of the matters discussed in this article, please do not hesitate to contact us today on (08) 9408 5212 for a free 15-minute consultation with one of our lawyers.

 

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.

“But I’m not the dad!” – Presumptions of Parentage in the Family Law Act

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A DNA test is typically the most reliable method of determining whether or not a man is the father of a child. However, under the Family Law Act 1975 there are a number of presumptions of parentage:

  • Marriage if a child is born to a woman who is married (s69P(1)) or is born within 44 weeks of a marriage ending by death or annulment (s69P(2)), the child is presumed to be a child of the woman and her husband. Also, is a child is born within 44 weeks after the end of cohabitation, but after the divorce of a man and woman, the child is presumed to theirs (s69P(3)).
  • Cohabitation If a child is born to a woman who has cohabited with a man during a period not earlier than 44 weeks and ending not less than 20 weeks before the birth, the child is presumed to be the child of the man.
  • Named on the Birth Certificate If a person’s name is entered as a parent on the child’s birth certificate under a law of the Commonwealth, or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be the parent of the child.
  • A Court’s finding If a court has made a finding that a person is a parent of the child, the person is presumed to be the parent of the child.
  • Declaration If a man has executed a legal document, such as a statutory declaration, acknowledging that he is the father of a child and the document has not been repealed or set aside, he will be presumed to be the father.

Where a presumption arises and is satisfied, this is often enough for the court to make a determination as to a parent’s requirement to pay child support.

 

Rebutting the presumption

These presumptions are rebuttable by proof on a balance of probabilities. This means the standard of proof is ‘more likely than not’, in comparison to the standard of proof ‘beyond a reasonable doubt’ in criminal cases.

The obvious mechanism for rebutting the presumption is a DNA test. The court is able to make orders for a paternity test on its own initiative or by one of the parties making an application. Failure to undertake a DNA test while claiming that you are the father of the child may allow the court to conclude that you are not the father.

 

An Interesting Case: Artificial Semination

In the recent case Masson v Parsons & Ors [2019] HCA 21, the High Court rule that a man who donated his sperm for the birth of a child through artificial semination is a parent of the child under the meaning of parent in the Family Law Act 1975.

The man took action when the mother of the child attempted to relocate to New Zealand with the child and her partner. The High Court overturned the Full Court of the Family Court’s finding that the man was not a parent of the child. It was said at [26]-[29] of the majority judgement that: “A court will not construe a term in a way which departs from its natural and ordinary meaning unless it is plain that parliament intended it to have a different meaning.”

Therefore, because the man is the biological father of the child and provided his genetic material for the purpose of fathering a child, he was held to be a parent for the purposes of the Family Law Act.

If you have concerns about whether or not you are the father of a child, Carter Dickens Lawyers can assist you. Contact us today on (08) 9408 5212 to speaker with a lawyer who can assist you.

 

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.

Child Abduction and Family Law

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It can be a terrifying moment for parents when they discover that their partner or ex has taken the children somewhere and cannot be contacted or located. If you believe that your partner or ex has taken your children and intends to flee with them, you should immediately contact the police emergency services on Triple Zero (000), and then contact a family lawyer experienced in recovery matters.

Often, whilst overwhelmed in this moment, parents can feel like they are powerless and there is not a lot they can do. This is not always the case and recourse is available to locate, and if necessary, recover children who have been taken.

 

If They Are Still in Australia

If you know your ex has taken the children but is still located in Australia, there are a few options available to you to assist in finding out where your children are and, if appropriate, having your children returned to you.

You do not need court orders to be able to have a child located and recovered. If you have a parenting plan in place (even an informal one) or so long as you are involved in the child’s life and have a hand in the child’s care, welfare and development then you will be able to make an application. This also applies to grandparents.

 

LOCATION ORDERS

A Location order is an order requiring a party to provide information to the Court regarding the children’s whereabouts.

A government agency (for example the police) can also provide information to the Court about the location of the children.

If a location or Commonwealth information order is granted, you will not be provided the information and, if you are legally represented, then your lawyer will only be able to receive that information if there is a court order allowing them to do so.

 

COMMONWEALTH INFORMATION ORDERS

A Commonwealth information order is an order to government entities requiring that they provide information (if they have any) to the Court regarding a child’s location.

 

RECOVERY ORDERS

Keeping in mind with all of the above orders, if the court believes it appropriate that the court’s paramount consideration is the best interest of the children, then it will make a Recovery Order.

A Recovery Order allows appropriate agencies (such as the police) to do what is required to find and recover a child and return them to the applicant, if they are a parent or have responsibility of the child. You do not need to have Court Orders in place for a recovery order to be granted.

If a recovery order is granted you will not be able to be present during the recovery and would be informed afterwards if it was successful and how to arrange handover of the children.

 

If They Have Left Australia

It is a criminal offence punishable with 3 years immediate imprisonment to remove a child from Australia or (if already removed) stopping a child from returning to Australia.

There are very limited grounds to remove, or keep a child removed, from Australia.

If this has occurred, the police have specialist units whose duty is to recover children who have been abducted. Australia and a large number of other countries are signatories to the Hague Convention on the Civil Aspects of International Child Abduction, which allows for the recovery and return of children under the age of 16 taken to one of these countries.

If your ex has taken your children internationally, you will need to obtain a Recovery Order to direct the appropriate authorities to locate and return your child to you.

If you do not know the location of the child or the other party, then you may need to consider obtaining location orders and/or Commonwealth information orders.

 

What if I’m Worried They May Take the Kids and Leave Australia?

If you have genuine concerns that the other party is going to take the children and take them out of Australia, you are able to seek Family Court Orders preventing them from being able to do so.

If appropriate, the Court has a number of options available to stop a party from removing children from Australia. These options include:

  1. an order that the children’s passports be held at the Court.
  2. the children be put on the Australian Federal Police (AFP) Airport Watchlist. If Children are included on the Airport Watchlist, it means that if someone tries to remove them from Australia they will be flagged on the system and the AFP will be alerted to potential movement of the child.

The Court will ordinarily provide Watchlist Orders to the AFP on the same day that the Orders are made. Airport Watchlist orders can be granted on an urgent basis, even if the Court is not open at the time you find out that the other party is going to be taking them.

If you do have concerns that the other party is going to take your children, you should contact police emergency services on Triple Zero (000) immediately and then contact a lawyer during the day, or if after-hours first thing the next day.

Carter Dickens Lawyers is able to arrange urgent client meetings with same-day appointments as needed. We have experience in making urgent court applications and the have acted in such matters in the past.

Contact our Office on (08) 9408 5212 for a no obligation initial consultation and one of our experienced lawyers will be able to discuss the above matters with you as well as broader family law matters.

 

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.

Can my ex access my psychological records?

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In family law parenting matters, it is well-established that the paramount consideration to the Court is the best interests of the child. This takes priority over everything, even your right to confidentiality.

In considering what is in the best interests of the child, the Court will consider many factors, including:

  • the benefit the child may have from a meaningful relationship with both parents;
  • any views that the child expresses;
  • the nature of the relationship between the child and each of the child’s parents; and
  • the capacity of each of the parents to provide for the needs of the child, including emotional and intellectual needs.

If one parent attends counselling, it is likely that their counsellor’s notes would shed some light on these factors. In particular, the psychological records would be relevant to the question of whether the parent has the capacity to:

  • take care of the child’s best interests;
  • take care of the child physically;
  • provide emotional support to the child;
  • maintain or build a meaningful relationship with the child; and
  • Take care of the child long-term.

Psychological records may also evidence a risk of future family violence, psychological abuse or neglect. Therefore, psychological assessments can be highly relevant when determining orders that are in the child’s best interests.

 

How can my records be obtained?

Psychological records can be obtained pursuant to a subpoena. A subpoena is an order by the Court to an institution, such as your counsellor, to provide documents they have on record pertaining to you. Failing to comply with a subpoena is a breach of a Court order, which is punishable by a fine or imprisonment.

 

What about confidentiality?

Health practitioners have a duty of confidentiality, pursuant to which they cannot disclose medication information about the patient without the patient’s consent. However, this duty is subject to the medical practitioner’s obligations under a subpoena. If a counsellor receives a subpoena requesting them to provide documents to the Court about a patient, they must do this; practitioner-patient confidentiality is subject to the Court’s orders.

 

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.

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.

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