If you are in the unfortunate situation of going through a break-up you have probably heard all sorts of ‘advice’ from well-meaning friends and family.

Family and friends are a great source of emotional and practical support when you have separated, however good legal advice is essential, so you are aware of your rights. Being properly informed can help you to finalise your property affairs and come to workable arrangements for the ongoing care of your children.

In this article, we clear up some common family law fallacies and hope to provide useful information to assist with your family law matter. The information is for general purposes only. It is important to be guided by expert advice when resolving your family law matters. Even if you and your ex-partner are amicable, it is wise to legally finalise your property affairs so that you can both move on with your financial lives.

The children will spend equal time living with my ex-partner and me

Not always. The concept of equal shared parental responsibility was introduced into the Family Law Act 1975 (Cth) to encourage and acknowledge the benefits of shared parenting after separation.

Equal shared parental responsibility means that each parent is jointly and equally responsible for significant long-term matters concerning their children. This includes decisions about their health, welfare, education and religious and cultural upbringing.

The concept however is often misinterpreted as a ‘default’ position whereby the children will spend equal time living with each parent. Whilst the Court must consider the children spending equal or significant time with each parent, it is not a ‘given’.

The Court has an overriding obligation to consider the best interests of the children and a range of factors will influence its decision. A practical approach must be taken regarding what is realistic in terms of family dynamics, work commitments and other responsibilities. Only if equal living arrangements are practical and in the best interests of the children will they be ordered.

We both keep our separate superannuation accounts

This is not necessarily so. Superannuation is treated as property and forms part of the asset pool for consideration after a relationship breakdown.

The splitting of superannuation between married or de facto partners may be by Court order, superannuation agreement, or included in consent orders or a financial agreement.

Various steps are involved – the parties will need to obtain information from the relevant superannuation fund, a valuation, and sound advice before a splitting arrangement can be finalised. Once the fund is split, a separate account is created and the new fund remains subject to existing superannuation laws.

Different types of funds are valued in different ways. The laws relating to superannuation splitting are complex and must be considered in the context of other non-superannuation assets in the asset pool. Comprehensive legal and financial advice is recommended when determining whether a superannuation split is appropriate.

You can’t divide your property until you get a divorce

Couples must be separated for 12 months before getting a divorce and may commence negotiations to finalise a property settlement before a divorce being granted.

The finalisation of a divorce triggers a 12-month limitation period within which to commence proceedings for a property settlement.

Separated couples who were in a de facto relationship have a 2-year timeframe, after separating, within which to commence property proceedings.

The bread-winner should have a greater entitlement to the asset pool

Not so. In addition to financial contributions, the non-financial and indirect financial contributions of a party are included when determining a property settlement. These contributions are not given a dollar value however will be important when making a percentage adjustment to the asset pool.

Non-financial contributions are contributions considered to have assisted in increasing the asset pool. They include the care and welfare of children, management of the household and finances, and labour used to improve or conserve the home (such as renovating or landscaping). For example, a partner who stays home to raise children is considered to make an indirect financial contribution by enabling the other partner to contribute financially through his or her employment or business efforts.

In the well-known case of Whiteley and Whiteley (1992) FLC 92-304, the wife’s efforts of modelling, critiquing, discussing and evaluating Brett Whiteley’s artwork were considered a significant non-financial contribution and inspiration to his financial contributions to the marriage.

Family law matters end in a court-room battle

Despite Hollywood images of ex-couples embroiled in court-room combat, most family law matters settle without the parties needing to attend Court.

Commencing proceedings for the division of property only depletes the available assets and contributes towards anxiety. Court should be a last resort and the Act requires that parties make genuine efforts to resolve disagreements and participate in dispute resolution before commencing proceedings. The objectives of these ‘pre-action procedures’ are to:

• encourage early disclosure through the exchange of information between the parties;
• minimise the need for legal action by reaching an early settlement;
• build a process to resolve a matter quickly and to limit costs; and
• if proceedings are necessary, assist in their efficient management by identifying the actual issues in dispute.

Conclusion

The Court plays a discretionary role when deciding family law matters, and the likely determination that a Court would make should always be considered when negotiating and agreeing on an out-of-court settlement.

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.

Separating couples involved in a family law property settlement are often under emotional and financial pressure. When one or both parties are involved in a business, this can add additional stress and complexity to the division of property.

A business interest, whether held individually or jointly, through a partnership, company or trust, forms part of the asset pool and must be accounted for when dividing property.

A formal valuation for the business can help provide clarity and assist the parties to negotiate a financial settlement.

Why value a business?

When couples separate, the division of property is not purely a mathematical exercise. This is particularly so when considering a family business which may be the sole or significant vehicle for the family income.

If the business is profitable, or likely to become profitable, one of the parties may wish to retain it and ‘pay out’ the other. This is where disputes most likely arise as there will be discrepancies about what the business is worth, influenced respectively by whether each party is the proposed continuing or exiting business owner.

Many factors must be considered to provide a pragmatic and workable solution for both parties. This is where a formal business valuation by a qualified expert can be of benefit.

Choosing a valuer

It is important that the valuer appointed be an impartial and neutral expert who is familiar with family law matters, the requirements for preparing expert reports and, if necessary, giving evidence in Court.

Both parties should agree on the expert appointed and provide joint instructions.

The benefits of engaging a single valuer are that the parties usually share the expense, the process is streamlined, and the evidence is generally accepted by the Court without further application. In limited cases, individual valuations may be requested, and permitted by a Court.

If the parties are represented, their lawyers should work together to identify a suitably qualified valuer, obtain costings and determine the terms of reference for the valuation. Correspondence should include the relevant Family Law Rules with which the appointed expert must comply in providing the report.

Arranging the report and the importance of disclosure

Once the valuer and costs are agreed, written instructions are provided by each party’s lawyer. The instructions will set out the terms of reference and additional information is provided to assist in making the assessment.

The Family Law Act 1975 (Cth) requires that separating couples make genuine efforts to resolve disputes, and, as far as practicable, comply with the duty of full and frank disclosure. Where business interests are concerned disclosure documents may include balance sheets, profit and loss statements, budget and cashflow forecasts, supply and service contracts, business activity statements, tax returns, deeds, joint venture agreements and trusts.

The extent of information required will be determined by the complexity and (likely) value of the business and the valuer may request additional information to consider a proper assessment.

Valuing the business

By nature, businesses can be inherently complex and attributing a monetary value to a business will require consideration of several factors.

The business may be in its start-up phase with minimal assets but potential for good future earnings and growth. Significant benefit may be placed on the goodwill of a business by one party, which value may be contested by the other.

The valuer will review the information provided and adopt the most appropriate means of valuing the business, usually from a set of generally accepted principles and valuation methods. The likely taxation consequences should the business be sold, may be considered as well as a comparison with other businesses within the same industry.

The method used to determine the value may be based on income, on assets, a market approach or an approach that considers the unique value to the potential business owner.

Conclusion

Relationship breakdowns can have a disruptive effect on a family business, and it is important that parties try to work amicably to maintain its usual activities and preserve business relationships and reputation.

If you have been operating a family business and are separating, it is important to understand the value of the business which will ultimately form part of a financial property settlement.

A formal business valuation can be used in the early negotiations of a financial property settlement, during mediation or, if necessary, in Court proceedings.

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.

A parenting order is not only designed to apply to parents or guardians of a child, but non-parents may also apply for parenting orders to be able to spend time with, or care for a child.

The Family Law Act allows a grandparent, or any other person concerned for the child’s care, welfare, or development to apply for a parenting order.

What is a parenting order?

If parents are not able to agree on caring arrangements for a child, either parent may apply to the Federal Circuit and Family Court of Australia for a parenting order.

The Court will make a decision about what caring arrangements are in the best interests of the child. Orders made about children are called parenting orders and each person affected by the parenting order must follow it.

Parents who have come to a mutual agreement as to care arrangements of a child, may also make an application to the Court for legally binding consent orders.

Who can apply for a parenting order?

Section 65C of the Family Law Act allows a range of people concerned with a child’s care, welfare, and development to apply for a parenting order.

This may include:

• the child’s parents;
• the child himself or herself;
• grandparents; or
• any other person concerned with the child’s care, welfare, or development.

‘Any other person’ may include a sibling, aunt or uncle, a cousin, a family friend, or anyone else with a significant connection to the child.

We recommend you speak to an experienced family lawyer if you are unsure whether you qualify as someone who can apply for a parenting order.

How does a non-parent apply for a parenting order?

If you are not a parent, child, or grandparent, and are seeking a parenting order, you need to satisfy a two-step process.

The first step includes a threshold test where you will be required to prove that you are a person concerned with the care, welfare, or development of the child, in order to bring an application for a parenting order.

The definition of ‘a person concerned with the care, welfare of development of a child’ has been worded broadly in order to permit a wide range of people to apply for parenting orders. It is important to note however, that the Court is stringent when considering applications for parenting orders by people other than a parent or grandparent of a child.

The second step requires parties to attend a conference with a Family Consultant. The reasons why the non-parent is seeking a parenting order are discussed during the conference in order to show the Court that there are circumstances that make it appropriate to make a parenting order in favour of the non-parent.

Applying for a parenting order by a non-parent is a complex process. We strongly recommend you seek legal advice before commencing your application.

Conclusion

If you are a grandparent or any other person concerned for a child’s care, welfare, or development, you may be eligible to apply for a parenting order.

Applications for parenting orders for non-parents can be a complex area of family law so we strongly recommend you seek advice from an experienced family lawyer.

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.

Domestic and family violence is a serious issue that affects many people across Australia. A Domestic Violence Order (DVO) is a court order in Queensland designed to protect a person from domestic violence. This article contains information about what constitutes domestic violence, how to apply for a DVO, types of orders, and the consequences of breaching domestic violence orders.

What constitutes domestic violence?

When we think of domestic violence, we most frequently think of physical abuse. However, domestic violence is not limited to physical violence. It can also include emotional, verbal, financial, and sexual abuse, as well as stalking and intimidation. Some common examples of domestic violence include:

• Physical violence, such as hitting, slapping, or punching
• Verbal abuse, such as yelling, insulting, or belittling
• Emotional abuse, such as controlling behaviour or isolation from friends and family
• Sexual abuse, such as forced sexual acts or coercion
• Financial abuse, such as controlling access to money or refusing to provide for basic needs
• Stalking or intimidation, such as following or monitoring someone’s activities.

There are also forms of domestic violence that are less difficult to identify. For instance, it is not well understood that threats of suicide and/or self-harm can also constitute domestic violence. If someone is making these types of threats as a means of controlling or manipulating their partner or family member, this can be very distressing and intimidating for the victim.

How do you apply for a DVO?

To apply for a DVO in Queensland, you can visit your local police station or courthouse. You will need to provide details of the domestic violence you have experienced or witnessed, including any evidence you may have, such as photographs or witness statements.

Once you have applied for a DVO, a court will consider your application and decide whether to issue an order. If the court is satisfied that domestic violence has occurred or is likely to occur in the future, it will make a DVO. A DVO can impose conditions such as prohibiting the offender from contacting you, attending your home or workplace, or possessing firearms. If the offender breaches the DVO, they can face criminal charges and penalties.

In Queensland, a police officer may apply for a DVO on behalf of a victim. To apply for a DVO, a police officer must have reasonable grounds to suspect that domestic violence has occurred or is likely to occur in the future. The application should include details of the alleged domestic violence, and any evidence or witness statements to support the application.

Types of orders

There are a range of different types of domestic violence orders that the courts can issue. These include:

• Orders which prohibit the perpetrator from committing further acts of domestic violence against the victim.
• Protection orders, which are issued to protect victims from harm or to prevent the perpetrator from accessing a shared residence or workplace.
• Ouster orders, which require the perpetrator to vacate a shared residence or workplace. This type of order can be an important safety measure for victims of domestic violence who may feel threatened or unsafe in the presence of their abuser.

Breaching a Domestic Violence Order

It is important for perpetrators of domestic violence to take DVOs seriously and to comply with the conditions set out in the order. A DVO is a civil order and does not result in a criminal record. However, breaching the terms of a DVO is a criminal offence that can result in criminal charges and penalties. Someone who breaches a DVO can expect to be arrested and charged.

The penalties for breaching a DVO vary depending on the severity of the breach and whether the offender has a history of domestic violence, it can result in fines, imprisonment, or both. If you feel that you may be at risk of breaching a DVO, it is important to seek legal advice and support to help you comply with the terms of the order.

An order is breached if any of the conditions listed in the order are contravened. Some examples of breaches of DVOs in Queensland include:

1. Contacting the victim: If the DVO prohibits the offender from contacting the victim, any attempt to contact the victim, whether by phone, text, email, or social media, is a breach of the order.
2. Physical proximity: If the DVO prohibits the offender from being within a certain distance of the victim, entering their home, or attending their workplace or other specified locations, any attempt to approach the victim or attend those locations is a breach of the order.
3. Possession of weapons: If the DVO prohibits the offender from possessing firearms or other weapons, any attempt to possess or use these weapons is a breach of the order.
4. Indirect contact: If the DVO prohibits the offender from indirectly contacting the victim through a third party, such as a friend or family member, any attempt to do so is a breach of the order.
5. Failure to attend court: If the offender has been ordered to appear in court for breaching the DVO or attending a court-ordered program, failure to do so is a breach of the order.
6. Threats of self-harm: A DVO may prohibit someone from making threats of suicide or self-harm. Although such threats may arouse sympathy for the perpetrator, it is important to understand that these actions can be the continuation of the domestic violence.

This information is for general purposes only and we recommend you obtain professional advice relevant to your circumstances.

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.

Gender dysphoria can be described as medically diagnosed significant distress or impairment, related to a strong desire to be another gender or change primary or secondary sex characteristics.

A decision by the Family Court in the Kelvin case has set an important and welcomed precedent for children wanting to undergo hormone therapy to bring about puberty in the gender the child identifies with.

Currently, where a child, their parents and doctors are all in agreement that hormone therapy should begin, there will be no need to apply to the Court for approval.

The Kelvin decision has been welcomed as this means less stress and anxiety is placed on a child wanting to start hormone therapy for gender reassignment.

What is Gender Dysphoria?

As mentioned above gender dysphoria is the discomfort a person feels with how their body is perceived and may occur when a person feels their biological or physical sex does not match the sense of their own gender. It’s important to note that not all transgender or gender diverse people experience gender dysphoria.

Gender Dysphoria treatment

There are 3 stages of treatment for gender dysphoria.

Stage 1 treatment involves the child taking “puberty blockers” which prevent the child from going through puberty in their biological sex and therefore time to develop emotionally and cognitively where they are able to give informed consent to the next stage of treatment.

Stage 2 treatment consists of the provision of hormone therapy to the child to bring about puberty in the gender that the child identifies with. Hormone therapy has some irreversible effects so it can only commence when the child has the maturity to provide informed consent.

Stage 3 treatment involves surgical interventions, such as chest reconstructive surgery, phalloplasty and hysterectomy.

The role of the Family Court in the treatment of Gender Dysphoria

In Australia, the Family Law Act 1975 gives the Court authority to make orders relating to the best interests of the child relating to non urgent medical intervention. Before 2017, Australia was the only country where transgender adolescents had to seek permission from the Court to start stage 2 treatment for gender dysphoria.

Stage 2 treatment was only available to transgender adolescents, who the Court believed had reached a ‘Gillick’ level of competency. The Gillick test is used to determine whether a child is legally capable of consenting to medical treatment, without their parents’ knowledge or consent. In 2017, however, the case of Kelvin brought about change to this status quo.

The Kelvin case

As mentioned above, the case of Kelvin set a new precedent for the commencement of stage 2 treatment. Kelvin was born female but diagnosed with gender dysphoria at age nine after identifying as male. Kelvin’s father filed an application to the Court containing evidence from an endocrinologist, psychiatrist and a psychologist that supported Kelvin commencing stage 2 treatment. The court decided that there was no requirement to satisfy the Gillick competence test in Kelvin’s case as all parties, including the parents and treating doctors, agreed that Kelvin should proceed to the next stage of their treatment. Therefore, it was not necessary to make an order approving commencement of stage 2 treatment.

The court also declared that previous case law was decided based on potential health repercussions of new medical treatments. By the time Kelvin’s case was heard in the Court, there was a clearer understanding of gender dysphoria and treatment options.

If you or your child’s treating physicians are unsure if your child is ready to start stage 2 treatment, and would like further legal advice on moving forward, we recommend you speak to one of our experienced family lawyers.

Conclusion

The decision in Kelvin is a triumph for gender and family law as it aligns Australian law with contemporary attitudes held by the medical community at large.

It has also been welcomed by children dealing with gender dysphoria, especially where the child consents and wants to proceed with stage 2 treatment and the child’s parents and treating medical practitioners have no objections to the child commencing treatment.

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.