A separating couple with children will need to work out the parenting arrangements for those children – where the children are to live and who may make decisions about the children.
If the couple can agree, their agreement can be formalised as Consent Orders (ie Orders made by the Court by consent). If not, the Court can decide the parenting arrangements for them.
In either case, the Court will only make orders that it considers are in the children’s best interests.

Structure of parenting orders
Parenting orders, whether made by consent or otherwise, will cover topics such as with whom the children are to live and spend time, and which parent may make decisions in relation to the children’s day to day and long term care, welfare and development. Theoretically, each aspect of a parenting order, whether made by consent or after a contested hearing, is as binding and enforceable as a Court order about the parties’ finances.

Enforceability
Unfortunately, that theory is not always borne out in practice.
It can sometimes be difficult to prove a breach of parenting orders. How does one demonstrate to the Court that one’s former partner breached the order requiring him to communicate with you in relation to decisions regarding the children’s long term welfare?
Even if your former partner is completely unwilling to compromise, the fact that she attempted to “discuss” the issue with you may satisfy the Court that your right to consultation was respected.
Surely it would be easier to prove a breach of a parenting order relating to time with the children? It is likely to be obvious whether the children spent the ordered time with you.
However, before the Court will treat a parenting order as having been breached, it must first consider whether the “guilty” parent had a reasonable excuse for failing to comply with the orders. For example, was it reasonable for the “guilty” parent not to facilitate the other parent’s time with the children on the basis that the children allegedly don’t want to go and “I can’t make them”.
Whether or not that constitutes a reasonable excuse depends on the facts of each case, including the age of the children and the steps that the parent did take to try to encourage the children to spend time with the other parent.

Consequences of breach
If a Court is satisfied that a parenting order has been breached, it has a range of penalties available to it to either punish the “guilty” parent, to “compensate” the innocent parent or to enforce the parenting orders. Those options include:
• requiring one or both parents to attend a parenting after separation course
• ordering that the children spend additional “make up time” with the innocent parent
• changing the parenting orders. This could mean that the children ultimately regularly spend more time or even live with the “innocent” parent
• placing the “guilty” parent on a bond or sentencing him or her to imprisonment.
In relation to the last three of those options, the Court’s overriding consideration is still the children’s best interests. There have been a number of cases where, despite proven and repeated breaches of parenting orders by the parent with whom the children live, the Court has not drastically changed the earlier parenting orders, nor was the “guilty” parent put in gaol because the Court was concerned that the imposition of such consequences would not be in the children’s best interests.
Unfortunately, the practical outcome in those cases was that the “guilty” parent’s breach of the parenting orders went unpunished.
In such cases, the Judge must reconcile her desire to uphold the Court’s orders and punish any breach of them with the Court’s overriding obligation to only make parenting orders that it considers to be in the children’s best interests.

Consequences for taking children overseas
One type of breach of parenting orders which deserves special mention is where a parent breaches and tries to avoid the operation of Australian parenting orders by taking the children overseas. Such a situation is treated very seriously by the Family Court, the Federal Police and relevant international authorities.

Conclusion
Parenting orders can be made by consent or as a result of a contested hearing before a Judge. The enforceability and consequences for breach of parenting orders is the same, regardless of how those orders were made. Unfortunately, proving a breach of parenting orders and obtaining what the “innocent” parent might consider to be adequate redress can sometimes be difficult.
Given that all parenting orders, whether consent orders or otherwise, are made taking into account the children’s best interests, both parents would be better advised to comply with the orders, rather than litigate about an alleged breach of them, as such compliance ought to promote the children’s relationship with both parents and the children’s best interests.
If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Why, you might ask, would marriage or divorce have anything to do with your Will? Why indeed! The reality is that only about one in two Australians, whether married or divorced, have a valid Will. Of those who do, many haven’t looked at their Will since they signed it, and perhaps have forgotten what it says. And they’re likely to be unaware of the unintended consequences that marriage and divorce can have on their otherwise valid Will.

In Australia, laws relating to marriage and divorce are made by the Federal government. Wills are governed by State and Territory laws. While similar, there are some important differences from State to State or Territory.

Marriage and your Will

Getting married is a time of joy, looking forward to a long life together, not a time when you want to be thinking about the end of your life. But when preparing to promise to be together until “death do us part”, you need to also think about what will happen when death does, in fact, part you. This is particularly important in the case of second marriages and blended families.

In general terms, marriage revokes a Will. That is, by saying “I do” you invalidate your Will. If you die without making a new Will, you could be leaving it up to the government, not you, to decide how your estate is distributed. If there’s just you and your new spouse in your family, perhaps that’s okay. But in today’s world, that’s often not the case.

There are some exceptions to the rule that marriage revokes a Will. NSW, Victoria, Tasmania, Queensland and the Northern Territory allow appointments of your spouse as executor and gifts to him or her in your Will to remain valid after a marriage. However, the rest of your Will would be revoked. That means some of your wishes may not be followed in the event of your death.

In ACT, South Australia and Western Australia even gifts to your spouse or appointing him or her as executor would be revoked by your marriage. The Will as a whole would be invalid.

It is possible to make a Will in contemplation of marriage – of a specific marriage or of marriage generally – which would still be valid after a subsequent marriage. Alternately, you could have Wills prepared to be signed at your wedding, immediately after signing your Marriage Certificate. Not very romantic, perhaps, but pragmatic.

 Divorce and your Will

Generally, divorce treats a reference to your former spouse in your Will as if he or she died before you. That is, the rest of your Will would still be valid, but your ex-spouse would not be appointed as executor and would not receive anything from your estate, regardless of what the Will says. However, there are some exceptions to this, which differ throughout Australia.

Firstly, except in Tasmania, if the Court finds that the deceased intended for his or her ex to receive a gift from the estate or be appointed as executor notwithstanding their divorce, that gift or appointment would still be valid. In South Australia, that intention must be expressed in the Will. Elsewhere, the Court may be satisfied about the deceased’s intention through other evidence. Of course, that opens up the possibility of a Court battle about the deceased’s intentions. Not what anyone would want to happen after their death.

Secondly, if your Will appoints your former spouse as trustee of a trust to benefit people including his or her children, in NSW, Victoria, Tasmania, the Northern Territory and Queensland that appointment would still be valid, despite your divorce. Be aware that this relates to a trust created by your Will whose beneficiaries could include people other than your ex-spouse’s children. After your divorce, would you really want that to be the case?

Finally, the laws about the effect on a Will of the ending of a marriage relate only to divorce or annulment, not separation. That is, if you separate but remain married, your Will would take effect as if you and your spouse were still happily living together. Would that really reflect your wishes?

Divorce and your Will – Isn’t a property settlement enough?

So, you’re divorced, you’ve had a property settlement and you’ve even made a new Will. Leaving aside child support, that’s the end of your financial obligation to your ex, right? Wrong.

Some Australian States and Territories allow former spouses to go to Court and seek part of the deceased’s estate, regardless of the terms of the Will. NSW, ACT and South Australia allow such a claim, even if you have already finished a family law property settlement and your ex was not dependant on you when you died.

In Tasmania, Queensland, Western Australia and the Northern Territory, your former spouse needs to have been receiving maintenance or otherwise dependant on you at the time of your death to be able to claim on your estate. Victoria only allows such a claim to be made if, by the time of death, the deceased and his or her ex-spouse had not started or finished a family law property settlement.

If you are separated but not yet divorced, the situation about whether your estranged spouse can make a claim on your estate is even more complicated.

Conclusion

Marriage and divorce can have unintended consequences on your Will. When preparing to sign your Marriage Certificate, you also need to prepare to sign a new Will. Similarly, if your marriage didn’t turn out to be “happily ever after”, when thinking about dividing your assets while you’re alive, you should also turn your mind to the distribution or protection of your assets after your death.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au

Following a relationship break-up it is becoming increasingly more apparent that disputes are going beyond the living arrangements of the children, property disputes and division of superannuation.

The fate of family pets is becoming a larger problem for both litigants and their lawyers

Many family law litigants mistakenly think the Family Court can help resolve pet custody disputes. The position is clear: The Family Court in Australia does not rule on the custody of pets.

In Australia, pets are considered part of the couple’s personal property. They are treated like furniture or any other piece of personal property. The difference is of course that pets are living beings and they experience mistreatment and cruelty whereas property does not.

The reasons are understandable

One explanation is that people often feel that pets are like children. We are dealing with really strong emotional bonds that get formed over time. Separating couples are dealing with a grieving process and the family pet is important to them.

For couples in childless marriages animals can be really important and people in these circumstances can find it difficult to understand why the Court can’t deal with a litigant’s emotional attachment.  For some instances, such as couples on second marriages between older partners who didn’t have children at home, the pets form part of the family and effectively replace the children they have not been able to have.

How does the Court deal with the issue?

Interestingly, pet custody cases have a long history in the American family courts however in Australia essentially the law treats pets as assets.

If they are breeding animals then they essentially become a business asset. If they are companion animals they are treated as personal property just as the Court deals with photos and CDs and whilst that will sound harsh to animal lovers, it is the reality of how the Courts treat pets.

To make matters worse for pet lovers, the Family Court can get frustrated when people bring up these matters before a judge, who is more focused on issues that are more difficult to tackle, such as child abuse. Therefore it is best dealt with by negotiation.

How lawyers deal with the issue

Pets usually enter the discussion when property settlements are being discussed. While most of these negotiations that may lead to agreements that take place outside of the Court, they are increasingly included in formal arrangements.

It is becoming more common for couples to create their own formal pet custody arrangements, including visitation rights, similar to negotiations that are made for children of divorced parents.

Summary

Pets are increasingly at the centre of tug-of-war battles between separating couples.

Ideally separating couples can set aside their differences and agree the best outcome for their pets. Unlike chattels which are often divided between parties on a piece by piece approach, it is better for the parties to be less property orientated when there a pets involved, preferring not to split up pets which are attached to each other.

Helpful and competent legal advice can often help parties decide on shared custody of their pets. If you know someone who may need assistance in this area they should call us on 07 3281 6644 or email mail@powerlegal.com.au.

Anyone who uses social media has almost certainly come across a post or tweet where your immediate reaction was to suck in your breath and go “Ouch” while simultaneously being glad you weren’t the one on the end of the tirade.

Perhaps you have been guilty of firing off such a post or tweet yourself when someone or something has upset you. Maybe about the tradie who didn’t show up on time or the restaurant you went to last night where the waiter was the worst you have ever encountered.

It’s your democratic right to sound off and practically your duty to let everyone know to avoid spending their hard earned cash in that place isn’t it? Maybe it is but you really need to be careful that by posting or tweeting you aren’t defaming someone because if you are that spur of the moment rant could cost you plenty.

Of course social media isn’t the only place people may be defamed but it is fast becoming a growing area for these sorts of claims and disputes to arise.

 What do we mean by defamation?

You may have defamed someone (and be held liable for damages) if you have made a statement that could be seen as lowering a person’s reputation in the eyes of community, could lead to that person being made fun of, avoided or despised or could in some way lead to a loss of reputation in the person’s profession, business or trade.

 Could this cost me money?

While the simple act of defaming someone may not automatically lead to a Court finding you liable to pay damages (money) and there may be defences available to you, just being accused of defamation can lead to you becoming involved in costly and time consuming legal proceedings.

While you may have a defence such as being able to prove the statement was true or that it was an honest opinion on a matter of public rather than private interest, the best strategy is not to make statements that could lead to a complaint in the first place.

 But I was only posting on my private Facebook page….

Defamation can include publishing an article or newsletter, posting on a website or even writing an email. With the use of social media and email being so widespread comments and posts people make have the potential to “go viral” almost immediately and what may have started off as perhaps a private chat between two people can quickly spread to a far wider audience than was ever intended sometimes with far reaching consequences.

Who can be defamed and who is liable?

While you can’t defame a dead person and legislation may, depending on where you live, exclude or limit a company from suing for defamation, it is important to remember that each person who participates in the defamation may be found liable for it. So if you receive an email that is defamatory about the local plumber who failed to turn up or the crazy parent from your child’s school and decide to spread the word to all and sundry you could find yourself in as much hot water as the person who wrote the email in the first place.

A cautionary tale

Take the case of Mr Palmer who decided that he needed to warn his fellow residents about Mr Mohareb, one of his neighbours on Scotland Island (a small coastal community near Sydney). Mr Palmer posted on the Scotland Island Community Facebook page a “Warning” about Mr Mohareb that included describing him  as a “highly volatile individual, prone to manic outbursts” and which stated that he was “often abusive and threatening – particularly towards women and children and warned residents to avoid approaching or confronting him”.

Not surprisingly Mr Mohareb took offence at these comments and subsequently the matter proceeded to litigation in the District Court of NSW with significant costs being incurred by both parties.

How can I avoid being sued for defamation?

A good rule of thumb is to think long and hard before your post or publish. Remember once you post or press send it is out there on the internet forever.

Some other techniques to avoid defaming someone include:

• Follow the golden rule of “If you can’t say something nice don’t say anything at all”;
• Always check that any statements you make are actually true. Don’t just repeat what someone else told you without checking that what they said is actually true;
• When communicating focus on the issue and try not to make personal comments or sweeping statements;
• Never make derogatory comments about a person’s race or religion;
• Try to avoid emotive language;
• Avoid identifying someone even unintentionally if what you are saying could lower the person’s reputation; and
• If in any doubt don’t say, write, tweet or post before checking with a lawyer first.

Help! I think I may have already defamed someone

An apology, especially a public apology, can often go a long way to limiting the damage done. If you are in any way concerned that you may have defamed someone or have been accused of doing so then it is better to seek legal advice sooner rather than later.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.