Ruhl Family Lawyers Townsville - parenting-matters
How we can help – Parenting Matters

Often, you do not know just where you stand upon separation. How much time should the children spend with me and my now former partner?

What is fair and reasonable?

Should I consider equal time?

Do the children get a voice?

 
The Law:
Parenting arrangements which, a long time ago, were referred to as “custody and access” refers to the time that the child or children of a relationship spend with each parent or other persons relevant to the child/children’s lives.

There are a number of relevant considerations in determining these parenting arrangements. They include matters such as: ensuring children have the benefit of a meaningful relationship with both parents; the need to protect children from harm or risk of harm; the children’s views/wishes; their relationship with each of the parents as well as their other siblings and extended family members and other relevant considerations.

Every family circumstance is different and individual. Therefore, the relevance and weight attributed to each consideration might vary depending upon the family’s particular circumstances.

Our Role:
What we want to give you is knowledge and understanding – we want to share with you what we know about parenting law.

We can also help you to negotiate a reasonable outcome.

Negotiating Parenting Arrangements

There are various ways to negotiate a parenting arrangement including:

  • The parents and other relevant adults themselves can discuss the parenting matters and reach their own agreement;
  • A Mediation can be arranged;
  • The parties can attend Family Dispute Resolution;
  • The parties can undertake a collaborative approach;
  • The parties can approach a solicitor and undertake some negotiations through that process; or
  • An appropriate Application can be made to the Court.

We can assist you with all of these options.

Formalising Parenting Arrangements

If agreement can be reached, there are various ways that the parenting arrangements can be formalised and documented, including:

  • Entering into Consent Orders;
  • Entering into and signing a Parenting Plan; or
  • Seeking an Order from the Court.

Each of the above options provide various advantages and disadvantages which must be weighed carefully and it is important that you seek legal advice in relation to your individual circumstances.

Types of Parenting matters

Our office can assist you in relation to all parenting matters, including those involving:

  • Where the children primarily reside;
  • What time the children should spend with the other parent;
  • Recovery and/or Location Orders;
  • A Relocation application;
  • Applications by grandparents or other relevant adults;
  • Passport applications;
  • Paternity applications;
  • International parenting matters/disputes;
  • Adoption;
  • Change of name applications.

parenting-matters
How we can help – Property Applications

Often, you do not know what you might be entitled to.

What is fair and reasonable? Is superannuation included?

What about the inheritance I recently received?

My former partner earns more than me – is that important?

As well as any other questions.

 
The Law:
Following separation, it is crucial that parties formalise the division of their property interests. This process is called a “property settlement”, which essentially means determining and documenting “who gets what” following separation.

The same process and considerations are applied, irrespective of whether the relationship was a:

  • Marriage;
  • De facto relationship; or
  • Same sex relationship.

Specific time limits apply in relation to a property division and it is imperative that legal advice is obtained at an early stage to protect your interests.

Our Role:
We understand your uncertainty and want to provide you with knowledge about family property law so that you appreciate your true entitlement.

We can also help you negotiate a reasonable outcome.

Negotiating Property Arrangements

There are various ways to negotiate a property settlement including:

  • The parties can discuss their property division and reach their own agreement;
  • A Mediation can be arranged;
  • The parties can undertake a collaborative approach;
  • The parties can approach a solicitor and undertake some negotiations through that process; or
  • An appropriate Application can be made to the Court.

We can assist you with all of these options.

Formalising Property Arrangements

If, upon separation, the parties only informally divide their assets and/or liabilities between themselves, without formalising and documenting that agreement, they leave themselves open to a future risk that the other person may later seek a further property settlement from them.

There are various ways that property arrangements can be formalised and be binding, including:

  • Entering into Consent Orders. This gives the parties certainty but there are other benefits. For example, if the agreement involves the transfer of a real estate property or a motor vehicle, stamp duty is reduced to nil if Consent Orders are finalised and, in many circumstances, the stamp duty that would otherwise be paid is more than the costs of formalising the property Consent Orders;
  • Obtaining an Order from the Court; or
  • Entering into a Binding Financial Agreement.

parenting-matters
How we can help – Divorce

A Divorce application is distinct and separate to any other application, for example, a property settlement or a parenting application. Divorce is simply the process of changing the marital status of you and your former Husband or Wife, from married, to divorced.

A Divorce does not impact your entitlements to your children, nor property. However, you should seek legal advice regarding property matters at an early stage following separation as there are important limitation periods that you must be aware of, and the granting of a Divorce has a direct impact on those time limitations.

 

Misconceptions:
You do not have to be divorced before you can have a property settlement and nor do you have to get divorced just because you have settled your property division.

Timing:
You cannot commence a divorce application until you and your former partner have been separated for a period of at least 12 months.

Application:
You and your former partner can jointly apply for a Divorce Order or you can commence an application on your own. The application is a little more involved if there are children under 18 years of age as the Court needs to be satisfied about the current and future care arrangements for the children.

Our Role:
We can give you advice about applying for a Divorce Order and we can also make the application for you, if you wish.

parenting-matters
Collaborative Law

The Collaborative approach to family law focuses on parties being in control, reducing conflict and avoiding Court following separation. Through this process, Lawyers assist their clients in resolving their outstanding matters arising from separation in a dignified and successful manner.

Generally, the Collaborative process involves both parties and their Lawyers engaging in a series of round table discussions. The aim of those meetings is to ultimately achieve a long-term agreement regarding the future care of their children and/or what assets and liabilities they will each retain from their property pool.

 
How we can help:
Both Diane Ruhl and Courtney Aitken of our office are trained in Collaborative Law and have experience in facilitating the Collaborative process, to enable their client to reach their desired outcome.

Diane Ruhl
(07) 4772 7672
diane@ruhlfamilylaw.com.au

Courtney Aitken
(07) 4772 7672
courtney@ruhlfamilylaw.com.au

Collaborative FAQs:

Yes, you and your former partner or spouse will need to each engage a Lawyer if you wish to proceed through the Collaborative process. You will still receive independent advice from that Lawyer, separate to the round table discussions that occur. You will still be able to communicate with your Lawyer at any point throughout the process, without your former partner or spouse and/or their Lawyer present.
A Lawyer cannot act for both you and your former spouse or partner. This is because it would be seen as an ethical conflict of interest to provide both of you with legal advice about the same matters.
Your agreement will be formalised by your Lawyers in the appropriate manner, usually by Consent Orders. Naturally, you and your former spouse or partner will both review those documents and have the ability to ask any questions. You will both then sign them and they will be filed in the Court (if applicable) by your Lawyers. You do not need to attend at Court if you reach an agreement and enter into Consent Orders.
It is ideal if the Lawyer for your former partner or spouse is Collaboratively trained. We can provide you with a recommendation if necessary.

child-support
How we can help – Child Support

“Child Support” refers to the financial provision paid by one parent to the other parent for the benefit of the child or children of the relationship. This whole process is generally governed by the Department of Human Services (Child Support) (“the child support department”).

The actual amount of child support payable is calculated by reference to a specific formula assessment primarily based on the incomes earned by both parents, the amount of time the children spend with each parent, and the children’s ages. An estimate can be obtained from the child support department’s website, namely: https://www.humanservices.gov.au/customer/dhs/child-support.

 
Usually, the application for child support is made by the parent who has the primary care of the child/children.

How we can help:
Some circumstances might give rise to different considerations. I don’t think the child support assessment is fair, what can I do to change it? What if my child attends a private school or has unusually high medical or dental needs and costs? What happens here? Can’t we just come to our own private agreement?

Our Role:
We can assist you to better understand the child support laws and the options available to you.
It is true that you and your former partner can come to your own agreement that addresses the payment of all of your children’s costs. You and your partner can enter into what is called a Binding Child Support Agreement. This document needs to be drafted carefully and properly and we can assist you with that and also advise you on what might be a fair and reasonable child support outcome.

The child support department also have a review and objection processes that can be followed, with the aim of altering any assessment that may be in place. There are time limits that apply with these processes, so legal advice should be obtained quickly.

spousal-maintenance
How we can help – Spousal Maintenance

Spouse maintenance is where one partner continues to financially support the other partner following the separation.

It is distinct from a property settlement and it is a payment in addition to any child support payable.

Purpose:
The purpose of a spouse maintenance payment is to ensure that the disadvantaged financial partner is looked after and able to move forward with his/her own life. The spouse maintenance might only be paid for a defined period, for example:

  1. until a finalised property settlement takes place;
  2. until a young child is a little older so that the primary carer can return to work; or
  3. until a person is able to undertake and complete some further training to enable that person to re-enter the work force and earn an income.

Knowledge/Our Role:
A lot of people are unaware that they may be entitled to a spouse maintenance payment.

We can assist you by providing you with knowledge and understanding of any possible rights you might have in this regard.

We can also negotiate a reasonable outcome for you and have it appropriately finalised and documented.

domestic-violence
How we can help – Protection Orders / Domestic Violence Legislation

It is common for conflicts to arise around the time of separation.

In an attempt to alleviate that conflict, a person, or the Police on their behalf, can apply for a Protection Order. Such Orders are often, due to misconceptions, referred to as a DVO, AVO or Domestic Violence Order.

 
How we can help:
Our team have extensive experience in providing advice and assisting throughout the process of obtaining or defending a Protection Order. That is, we can assist either a person making an Application (the Aggrieved), or the person defending the Application (the Respondent).

For the Aggrieved:
There are certain elements that must be satisfied to obtain a Protection Order and any Application and supporting material must be prepared carefully, so as to satisfy those elements.

It must also be acknowledged that there are different types of Protection Orders, as follows:

  • An Urgent Temporary Protection Order;
  • A Temporary Order; and
  • A Protection Order.

It is important that your Application and supporting documents provide the Court with sufficient and relevant information to support the making of the type of Order you are seeking. Our team can assist you with that.

For the Respondent:
If you have been served with a Protection Order, you must be aware of the following:

  • A Protection Order can impact certain types of employment;
  • Before making parenting Orders in relation to care arrangements or child custody for children, a Judge must consider any Protection Orders that have been made;
  • A Protection Order, once made, cannot be revoked; it can only be varied; and
  • Any breach of a Protection Order is considered a criminal offence and therefore, can invoke a criminal charge.

Particularly due to the above, it is imperative that you receive independent legal advice at an early stage if you have been served with an Application for a Protection Order. Our team can assist you with that.

court-applications
How we can help – Court Applications

Unfortunately, in some circumstances and for whatever reason, an amicable negotiated agreement simply cannot be achieved.

Should that occur, after all reasonable efforts have been made to reach an agreement with your former partner, an Application can and should be made to the Court whereby you are seeking the Court’s assistance to bring about a resolution to your dispute.

Our Role:
Our team has extensive experience in litigation and we can assist and guide you through each step of the Court process, including seeking to achieve the following:

  • Court Orders – regarding parenting, property or spousal maintenance matters;
  • Injunctions – to prevent the other party from undertaking certain steps that may adversely affect your interests;
  • Enforcement – to seek recourse where one party has failed to undertake steps required pursuant to a Court Order; and/or
  • Contravention – where one party has failed to comply with a previous Court Order. You need to obtain detailed and specific legal advice before making such a Contravention application.

wills-estates
How we can help – Wills & Enduring Powers of Attorney

It is crucial that your Will and Enduring Power of Attorney (EPA) accurately reflects your present wishes.

If you do not have a Will or EPA, it is important that you take steps to have one prepared. Our office can assist in the preparation of your Will and EPA.

An Important Message:
Separation itself does not revoke the effect of a Will and the Rules of Intestacy, that is, what happens if someone passes away without having made a Will, rarely gives effect to that person’s true wishes. Not having a Will that reflects your current wishes may also lead to disputes between members of your family, following your passing.

Having a valid Will is particularly crucial in circumstances where you have a dependent or dependents and, even if you do not own substantial assets, it is important to have a Will. For example, your estate may be entitled to receive the proceeds from your life insurance policy or your superannuation fund upon your passing and it is important that these funds are distributed in accordance with your own personal wishes.

An Enduring Power of Attorney (EPA) records who you personally choose to make health and/or financial decisions on your behalf, in the event that something happens to you. For example, if you have an accident and are in a coma, you would want to feel secure that you have chosen a particular person or persons to make the appropriate financial and/or health decisions on your behalf. This is an important choice which only you should make for the benefit of your family.