Steps to Take After a De Facto Separation

A de facto separation can be a challenging and emotional time. It marks the end of a significant relationship and the start of a new chapter in life. Understanding the steps you need to take after a separation can help make this transition smoother and ensure that you protect your rights and interests.

In this article, we will provide a comprehensive overview of de facto relationships in Australia. We will discuss the legal implications of these relationships, including property division and child custody rights. Additionally, we will offer practical advice on financial stability and parenting arrangements during separation.

Understanding Your Legal Rights and Obligations

Definition of De Facto Relationships

In Australia, a de facto relationship is defined as a couple living together on a genuine domestic basis while not being legally married. This includes same-sex couples. To be considered de facto, you generally need to have lived together for at least two years, although shorter periods can count if you have a child together or have shared significant assets.

Legal Recognition and Rights in Australia

Australia’s Family Law Act recognises de facto relationships, giving them similar standing to married couples regarding property division, maintenance, and parenting matters. This means that, after separation, you have the same rights to seek a fair division of shared assets, child custody, and possibly spousal maintenance. Understanding these rights can ensure you receive what you’re entitled to and help protect your interests moving forward.

Obligations Post-Separation

Post-separation, both parties have certain obligations to meet. These include disclosing all financial information and cooperating in the division of assets. If children are involved, both parents must continue to make decisions in the best interests of the child. Continuing to meet financial obligations, such as mortgage payments or child support, is also crucial. Meeting these obligations can help facilitate a smoother transition and reduce conflicts.

Steps to Secure Financial Stability

Assessing Shared Assets and Debts

After a de facto separation, it’s essential to list all shared assets and debts. This includes property, savings, investments, and loans. Determine who owns what and the value of each item. This step is critical to ensure an equitable division. Being thorough and transparent will make the financial separation process smoother and fairer for both parties.

Managing Joint Bank Accounts and Credit

Managing financial accounts is crucial during a separation. Close joint bank accounts to prevent any misuse of funds and transfer your share to a new account. Notify your bank of the separation to avoid any issues with jointly held credit cards or loans. It can also be helpful to check your credit report to ensure nothing was missed and that your credit score remains intact.

Applying for Child Support or Spousal Maintenance

If you have children, applying for child support ensures their needs are met even after separation. The amount is usually calculated based on both parents’ income and the children’s needs. Spousal maintenance might be necessary if one partner was financially dependent on the other. This support helps maintain the living standards of the dependent partner until they can become self-sufficient. Seeking financial advice or support from Services Australia can help in these applications.

Child Custody and Parenting Arrangements

Creating a Parenting Plan

A well-thought-out parenting plan is crucial for ensuring that your children’s needs are met after a de facto separation. This plan outlines how you’ll share parental responsibilities and time with the children. It should cover living arrangements, holiday schedules, education, healthcare, and how you’ll handle any changes or emergencies. A clear parenting plan can help reduce conflicts and provide stability for your children during this transition.

Applying for Custody Agreements

If you and your ex-partner can’t agree on parenting arrangements, you may need to apply for a custody agreement through family court. The court prioritises the best interests of the child, considering factors like the child’s relationship with each parent, their safety, and their emotional and developmental needs. It’s essential to prepare thoroughly for this process, as the court’s decision will significantly impact your child’s future.

Handling Visitation Schedules and Disputes

Even with a solid parenting plan, disputes can arise. Handling visitation schedules requires cooperation and flexibility from both parents. If disagreements occur, try to resolve them amicably or consider mediation before turning to the courts. Effective communication and keeping the child’s best interests in mind can help manage conflicts and ensure a smooth visitation process. When necessary, legal intervention can provide a more formal resolution to ongoing disputes.

Seeking Legal Advice and Support

Importance of Legal Advice

After a de facto separation, seeking legal advice is crucial. A family lawyer can help you understand your rights and obligations, guide you through financial settlements, and assist with child custody arrangements. Good legal advice ensures that you make informed decisions that protect your interests and comply with the law.

Finding the Right Family Lawyer

Choosing the right family lawyer can make a significant difference in your post-separation experience. Look for a lawyer specialising in family law with a solid track record in handling de facto separations. Personal recommendations, online reviews, and initial consultations can help you find a lawyer who understands your needs and can provide the support you require.

Preparing for Legal Proceedings and Mediation

If your separation involves legal proceedings or mediation, preparation is key. Gather all relevant documents, including financial records, property details, and communication regarding parenting arrangements. Understand the process and what to expect. Being organised and informed can help you navigate these processes more effectively and achieve a fair outcome.

Conclusion

Going through a de facto separation can be overwhelming, but knowing the steps to take can help make the process more manageable. From understanding your legal rights and obligations to securing financial stability, creating parenting arrangements, and seeking proper legal support, each step is vital for your well-being and the well-being of your children.

At Hooper & Mill Family Lawyers, we specialise in helping individuals navigate the complexities of family law in Tugun. Our experienced team can provide the guidance and support you need during this challenging time. Contact us today to ensure you have the expert assistance to protect your rights and secure your future.

Blog, Divorce, Divorce/separation, Property, Property, Separation

5 myths about property settlement, busted by a divorce lawyer

You may have received information about property settlements from television shows, back yard BBQ’s, people you know, and good old Google searches. There’s a problem with this, though. Only your divorce lawyer (also called a family lawyer) can properly advise and guide you through the settlement process.

When you don’t have a family lawyer, what you find, hear or read
might not apply to you, like these five (debunked) myths below.

Myth #1: We can only start dividing property once we divorce

Not true. You can begin settlement proceedings when you separate. Calling your family/divorce lawyer is an important first step to take if you know there’s no chance of reconciliation.

Getting the right information early assists in minimising conflict, obtaining faster resolution and reducing legal costs.

Your divorce lawyer at Hooper Mill Family Lawyers will answer any questions you have during an initial consultation, which can take up to two hours. Bring any documents you believe are important and make a list of you and your partner’s assets, superannuation and liabilities.

Myth #2: Everything is a 50/50 split

Just because you’re married or in a de facto relationship doesn’t mean assets are split 50/50 on separation.

The law requires that the contributions and future economic circumstances of the parties are examined. The amount of time the parties are together and number and age of children is often examined in assessing how much one side will receive.

The contributions of the parties are not just financial, but also non-financial and as homemaker and parent. Financial contributions do not rank more highly than others. That saying ‘money isn’t everything’ certainly applies here.

Myth #3: The only way to end this is going to court

Your divorce lawyer, divorce lawyer or family lawyer assists you to avoid going to court. Most will regard it as the last option. Instead of going to court, most divorce cases can get settled through mediation.

Even if court proceedings begin, the process is very much geared towards settlement. There’ll be directions for a conciliation conference or mediation ordered early on. Statistically, of the matters that begin in court only about 2% to 5% go all the way through to a final hearing.

Myth #4: The breadwinner will get more

The Court looks at the contributions that are direct and indirect, financial and nonfinancial. They also regard the acquisition, conservation and improvement of the properties for settlement; and as parent and homemaker, when it comes to adjusting property and superannuation. Even if one parent was a homemaker and didn’t work, they still contributed significantly to raising the children and maintaining the home. This is regarded the same as the breadwinner’s contribution.

When deciding how to divide property, the Court looks at the following:

The net value of the property, assets and superannuation
Contributions both parties have made over the years
The future needs of each side

Myth #5: My partner cheated, so the odds are in my favour

The Family Law Act 1975 introduced the concept of “no fault” divorce. Therefore the majority of judges aren’t concerned with any alleged misconduct from one side. Not even when the misconduct could be regarded as “immoral” or similar.

This changes if the misconduct has an economic impact. Where there has been a negligent, reckless or wanton destruction of property, the conduct of whoever’s responsible is considered. Gambling or even the effect of domestic violence on property are examples of this.

In child custody cases, behaviour/conduct is closely examined. The conduct, though, must be relevant to best interests of the child, especially when protecting them from unnecessary risks. Will the settlement affect a parent’s ability to keep their kids safe from emotional, physical or sexual harm?

The above are some of the “myths” commonly encountered, but there’s plenty more out there. You best way forward is to trust a family law expert, your divorce lawyer. We set you on the correct path from the moment you walk into your consultation.

Blog, Divorce, Divorce/separation, Separation

What a divorce lawyer wants clients to know

When a separation happens, it’s logical to contact a divorce lawyer to guide you through the process. There’s a lot of advice for them to give and they can’t explain it all in one meeting, so we compiled this list.

Help us help you.

It’s better to come prepared to the initial meeting and the ones that follow. Relevant dates (marriage, birth dates etc), financial documents such as tax information, payslips, receipts, phone records, letters, and the like will help your divorce lawyer get a better picture of the situation. It is very helpful to produce a list of all of the assets and liabilities of the marriage or relationship.

Don’t do things out of spite.

Divorces are what you make of them, and contrary to common belief there is such a thing as an amicable divorce. It’s not good to be that person who throws out their partner’s things onto the pavement and blasts angry messages over Facebook. Vindictive, angry behaviour makes resolution more difficult and in some cases amounts to family violence.

Don’t listen to divorce gossip.

No matter how good your friend’s or family’s intentions are, everyone’s situation is different. Don’t ruin a potentially smooth process by comparing your situation to your sister’s/neighbour’s/anyone else’s. It’ll cause you headaches of all different kinds.

You are important, so take care of yourself.

Get a counsellor if you need to. Lean on someone you trust (just don’t listen to their divorce advice) and be with your children. Go to the gym and sweat out some frustration. There’s no ‘emotional justice’ in divorce, or control on either side. So don’t expect to ‘win’ per se, just be happy you made it through.

The process takes time.

The courts, the law, and the paperwork in your divorce moves according to its own schedule. Litigation takes even longer thanks to court dates, applications and the like. Your divorce lawyer will advise against going to court, but sometimes it can’t get helped if there’s major issues that can’t be resolved easily. Clients shouldn’t expect to walk away from the whole affair quickly. There’s assets to divide and sometimes custody to work out.

You can’t talk to your spouse’s solicitor.

If you have representation of your own, it’s not allowed. If you try and contact them they won’t speak to you. Your own divorce lawyer is on your side and is there to convey messages. You can trust them to do it.

Blog, Mediation, Parenting, Separation

The Family Report

The family report has significant weight in parenting proceedings and to assist with parenting arrangements post separation. It is often very helpful to have a family report prepared prior to mediation or family dispute resolution to assist separated parents. It is important to understand what the report entails, who writes it, and how it affects custody arrangements.

Who writes it?

The court appoints a specialist family report writer to write the family report. The family report writer is an independent expert and can be appointed privately by the parties or as Court appointed “family consultant”. Strictly speaking the report writer has the status of being a Court Expert (Federal Circuit Court Rules) or Single Expert witness (Family Court Rules). This means the family report writer is not a witness for either party and may be cross examined by either party. The specialist normally has a background in psychology and/or social work.

How is the report written?

Once the court appoints the report writer or consultant they begin the interview and observation process. They will interview both parents and people close to the family and often observe the children in an informal interview, observe transition between adults, and see how they interact with the adults. The children have the option to speak with the family report writer or consultant but can choose not to.

What factors are considered?

In a custody matters, the aim is to ensure the best interests of children are met. Interviews with family members assist to determine issues in the custody matter that need to be addressed and provide recommendations as to the best interests of the children:

The nature of the existing parenting arrangements and important relationships in the lives of the children (parental and other)
Examination of allegations of unacceptable risk of harm (physical, psychological or sexual)
The responsibility parents have shown towards obligations as parents
The parent’s capacity to care for their children
The views of the children in the case

To keep in mind

It is important to make sure you attend the interview process. Failing to attend may cause delay, potentially cause costs against you, or that the family report is admitted into evidence without your input. Your divorce lawyer should provide you with date, time and other necessary information in advance.

The report is only one piece of evidence in the case but the judge usually places a fair degree of weight on the opinion of the independent expert. The report writer or consultant makes recommendations about custody and access to children but the court isn’t obliged to follow them. If there’s an argument about the report, there’s an opportunity to cross-examine the consultant and the family members they interviewed.

Lastly, there’s no such a thing as off the record in a meeting with the report writer or consultant. They’re obliged to write a thorough report. Anything they’re told either goes in writing or sent to the court.

Family Consultant FAQs

What is a family report?

Blog, Child Custody, Child Support, Divorce, Divorce/separation, Mediation, Parenting, Separation

Child Focused and Child Inclusive Mediation: What To Expect

In 2006 the Howard Government made changes to the Family Law Act 1975. This made Family Dispute Resolution (generally mediation) compulsory in most parenting matters. An Accredited Family Dispute Resolution Practitioner conducts the mediations. They have the authority to issue a certificate related to section 60I of the Act.

The Certificate (or final report) is like a piece of evidence for the Court. It includes whether the parties both attended mediation and made a genuine attempt to mediate or whether the Family Dispute Resolution Practitioner determined mediation is inappropriate.

Child focused or child inclusive mediation are two mediation models made to help parents work out a suitable parenting arrangement after their separation. Below is basic information on these models, the mediation process and recording of agreements.

What’s child focused and child inclusive mediation?

Child focused mediation seeks to encourage the parties to look beyond their disputes and consider how the agreements benefit the children. Often the mediator will educate the parents to better understand how the dispute and separation negatively impacts their children, both in the long and short term. Hopefully this information will help the parents to look beyond their positions, personal
wants and needs and encourage them to focus on the children.

The child inclusive mediation takes this a step further by arranging for the children to have an interview with a qualified child consultant. They speak with the children in a separate session, and will relay the children’s thoughts and feelings to the mediator and the parents. The child consultant carefully considers what information to report; their priority is the child’s welfare in the separation.

Child focused mediation resulted in greater fulfilment with the mediation process and longer lasting agreements. Child inclusive mediation, though, provided even better results than child focused mediation in these areas. (McIntosh, Wells et al, 2008:46; McIntosh 2007:4)

Screening process

In this initial process, each parent meets with the Family Dispute Resolution Practitioner mediator. They screen for factors that may make mediation inappropriate. These factors include family violence, substance abuse, mental health and other imbalances affecting a party’s ability to participate in mediation.

On occasion the Family Dispute Resolution Practitioner will need to “balance power”. It’s not unheard of for both sides to try and “tip” the balance in mediations to their advantage. Therefore, the screening is vital to determine the needs of the parties and if mediation is a realistic route to take.

Facilitative mediation

The Family Dispute Resolution Practitioner’s role is to assist the parties to determine the outcome for the dispute themselves. It isn’t the role of the Family Dispute Resolution Practitioner mediator to advise or influence a party.

Generally, the Family Dispute Resolution process will require these steps:

Mediator opens the proceedings and explains the rules;
Receive opening statements from the parties. Both sides should speak uninterrupted;
The mediator acknowledges and identifies common ground; An agenda is set in terms of the topics that need discussing;
Both sides engage to explore the topics in the agenda;
The mediator identifies options and obstacles;
The mediator holds confidential private sessions with each party to discuss the viability of the options covered in the meetings;
Negotiation between the parties;
If an agreement is reached, it’s put on record.

Parenting Plans

Parenting Plans are methods of recording the agreements. These are written, signed and dated. These plans aren’t enforceable in a Court. But if the matter makes it that far, the Parenting Plan is evidence that an agreement exists, and is usually persuasive with the Court’s final decision.

Blog, Divorce, Divorce/separation, Mediation, Separation

Choosing A Family Lawyer

The shock of divorce is tough; finding a qualified lawyer or solicitor is crucial to help deal with all the challenges you’ll face on the way. Thanks to the emotional strain of separation, it’s difficult to deal with matters like child custody, splitting property and dividing assets. Having the right representation will make dealing with these much easier. But the question at the front of people’s minds is; how do I choose a family lawyer?

Google. A Lot.

In this day and age anyone can find anything on the internet. Going to a legal authority such as the Queensland Law Society will help you narrow down your search.

If you know someone who’s gone through a similar experience, it’s good to ask them for advice. They might even recommend the solicitor who represented them. Word of mouth is just as good as a five-star review, but both combined together are signs of a great practice.

When you’re searching the web, check a lawyer’s qualifications. Lawyers have to learn new things constantly so that they’re up to date with the latest legal developments in their speciality. They should also have recognition from a state legal society and bar association.

They make you feel comfortable

The family lawyer will be representing you during one of the toughest times in your life. When you sit down with them, it’s important to feel at ease. Entering a meeting and feeling your guard go up with no signs of going down isn’t a good place to start. There’s no shame in saying the solicitor you met with isn’t right for you. Sometimes people want to work with someone their own age or their own gender.

They tell it like it is

Your lawyer is on your side but that doesn’t mean they’re supposed to agree with everything you say. Family lawyers act in the best interests of who they represent and they’ll try to fulfil wishes to the best of their ability. Sometimes though, some desires just aren’t achievable and a good lawyer will actively work towards a compromise.

A good family lawyer also communicates with their client regularly in terms of fees and settlements. In the legal area there’s no need to put people through any more stress that they can otherwise avoid.

Blog, Child Custody, Child Support, Mediation, Parenting, Separation

Child Inclusive Mediation: Facts and Stats

The emotional stress of divorce is felt through any family, especially to the youngest and most sensitive members. The children. The child inclusive mediation method was developed in response to research about the effect parental conflict during separation has on children. The primary goal of this method, according to Professor Lawrie Moloney, is to re-establish and maintain a secure emotional base for children post separation (Moloney 2012:3)

What’s the child inclusive mediation method?

Dr Jennifer McIntosh, a clinical child psychologist, describes some of the fundamental elements of the CI process as follows (McIntosh 2007:5):

The session with the children must be supportive and appropriate as to the dispute and separation
Decision making shouldn’t be a burden the children carry
A therapeutic element is needed to help children with coping, providing information and validating their experiences
Assisting parents to hear and reflect upon the children’s experiences to better understand the children’s needs

Child inclusive mediation “ups the ante” by directly involving the children. This way the parents truly understand how their child feels and what they want. Expert advice is still considered in the proceedings as they’d meet with the children to gauge their state of mind during the separation.

The ultimate goal of any mediation involving young people is to reduce conflict and to prohibit agendas or “tactics” one parent may use over another to gain primary custody.

Does this method work?

In a 2006 study, 79% of the combined child-inclusive and child-focused mediation participants reported flattening out of their conflict. Other statistics from the study showed:

82% of CI cases felt this method had improved the way their dispute was handled
61% of children reported better outcomes for the family

In mediation, a clichéd image is the mother having primary custody awarded to her. However, there is an interesting result from the 2006 study. There was less acrimony, greater fulfilment with resolutions and a stronger sense of agreement among fathers in the year after the mediation (McIntosh and Long 2006:122). Fathers also had a greater perception of fairness from the child inclusive process (McIntosh and Long 2006:124)

For mothers there was a greater sense of preservation in the bond with their children. The benefits for the children included a perceived “closeness” with their father’s. They also reported being happier with agreements 1 year after the mediation (McIntosh and Long 2006:122).

Articles written by Peter Hooper, Blog, Child Custody, Divorce, Divorce/separation, Mediation, Parenting, Separation

Christmas, Parenting Orders and Family Law

It’s that time of year again and things can become a little tense as holiday, Christmas Day and New Year plans for separated families are negotiated or implemented.

Separation is never easy; and special occasions like Christmas can often be very difficult, highlighting the reality of the changed living arrangements post separation. This can be the case for parents who have “custody of children” as well as for the parents who have arrangements traditionally thought of as “access”, “contact” or “spends time and communicates”.

The important thing to remember in any post separation parenting situation is negotiations occur “in the shadow of the law”.

This means both disputing parents ought to consider how the law might apply to their circumstances when they are engaging in negotiations.

The law empowers judges to exercise “discretion” to make parenting orders, and the process by which this occurs is complex.

However, two very important propositions bear heavily in the mind of a judge being called upon to make a parenting order. These are:

Children have rights; while parents have responsibilities;
Parenting arrangements ought to be in the best interests of the children.

From a practical perspective the best thing for both parents to do is remain “child focused”. This means try to consider what arrangements will place the best interests of the children, ahead of their own interests or feelings.

In my experience as a Brisbane Family Lawyer, some of the things that may be relevant for you to think about, or ask yourself, in making parenting arrangements at Christmas:

Making Christmas time a happy childhood memory. One of the most important issues for children’s mental health is to not be exposed to disputes between their parents. Studies have shown witnessing family violence generates similar response in children as having violence directed towards them; and some writers argue “exposing a child to domestic violence is a form of abuse in itself, regardless of whether the child is the target of such violence or not.”
Would the children be excited to see both of their parents, grandparents and other people who are important to them on Christmas Day? Is splitting Christmas Day in half what the children would likely prefer? Or would they be happier not to travel on Christmas Day; instead spending Christmas with one parent one year, and with the other the next;
If one parent has issues affecting the children’s safety, such as drug or alcohol problems, is there someone trusted who might supervise the time?
Will you let them take some of the gifts to the other parents home? Sometimes an item can represent a connection to the home they are not in;
Can they give a gift to the other parent?
Have you made planned holiday activities and outings, and taken time off work etc.

These are adult issues and it’s not a good idea to question your children directly as to what they want. Hopefully you know your children well enough to have an instinctive knowledge of what parenting arrangements they would prefer.

One of the most child focused post separation steps you can take for your children is to be “business like” in your dealings with the other parent, even in difficult circumstances, or when Court proceedings have commenced.

If you are dealing with a difficult or litigious ex-partner in a parenting matter, conducting yourself in a manner consistent with the above will be important evidence that you are child focused.

Judges make Orders they think will promote children’s rights and best interests. In my experience it is usually very obvious to the Judge whether one party (or both) is not behaving in a child focused way. If it’s not obvious immediately, it will usually become obvious as the litigation proceeds.

If you need the assistance of the Court to spend time with your children at Christmas, remember this is traditionally a busy period, and it is a good idea to get advice as earlier in the year. Rule 5.01A Family Law Rules 2004 provides the application must be filed before 4.00 pm on the second Friday in November of the application year if it relates to Parenting Orders during the Christmas School holiday period.

Ref: Flood and Fergus 2008 referred to in Morgan A and Chadwick H (2009) “Key Issues in Domestic Violence” Australian Institute in Criminology, Summary Paper No 7, at 8.

Blog, Child Support, Separation

How to tell IF you have actually separated and WHEN, most people don’t know!

Separation between de facto partners and married couples

The date of separation is an important one in the context of family law and for de facto relationship law.

The separation date is relevant to issues such as when divorce can be sought, when limitation period might expire, contributions for property settlement and other issues.

What is separation?

I assume most people would think they know whether they are separated or not however surprisingly it is often an issue. This is particularly the case when there is a reason to make it an issue such as when one party alleges a limitation period has expired.

In legal terms a “separation” is more than a physical separation. It involves the breakdown of the consortium vitae which is a fancy Latin way of saying “marital relationship”.

What was said of marital relationship in the case of In the Marriage of Todd No 2 has often been repeated by courts as being correct:

“What comprises the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage – elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships, and the nurture and support of the children of the marriage.”

Thus the notion of separation occurs when there is a breakdown of the above marital relationship, in a de facto relationship, or marriage.

This means people can be living apart and not separated; or living together and be separated, i.e. “separated under one roof”.

The practicalities of separation

To determine the separation date, three other conditions are necessary. These are:

One or both people in the marriage or de facto relationship form an intention to separate;
The person forming the intention to separate acts on the intention – because marital relationships vary for each couple, this can usually be determined by examining the relationship before and after the alleged separation date. Casual acts of sexual intercourse after separation don’t necessarily mean you’re back together but it could form part of the evidence to support a resumption of the marital relationship;
Communication of the intention to separate – This was mentioned in the case of Todd No 2 referred to above however it was subsequently recognised in In the Marriage of Falk. This condition requires that communication be direct or indirect by words or conduct.

I suppose you could say considering the above breaking up by email or text is the smart thing to do if you want to be clear about the separation date.

Perhaps it’s better etiquette to have the “it’s not me – it’s you” conversation (did I get that right?); and follow up with a gentle email or text message to confirm the date.

Why is the separation date important?

The main reason why separation date is important is in relation to divorce, the breakdown of a de facto relationship, and limitation periods.

The Family Law Act 1975 replaced the fault based grounds for divorce that existed previously with the one ground, that is, “irretrievable breakdown of the marital relationship”.

This ground for divorce is established by a continuous period of separation of not less than 12 months. Thus separation is necessarily established to obtain divorce.

After divorce has been granted a limitation period for property settlement in marriage operates 12 months after the date of divorce. This means if you get divorced you may not be able to seek property settlement without the permission of the court.

In de facto relationships the limitation period is 2 years after the end of the de facto relationship (date of separation).

Sometime the court will treat contributions people have made to property after separation differently in assessing property settlement. There have been a number of cases in which people have had windfalls such as Gold Lotto wins or inheritance at about the date of separation, or shortly after, that makes the date of separation an issue.

In the context of child support and child support calculator

Section 25 of the Child Support Assessment Act 1989 provides one of the conditions to obtain child support is that the applicant is not living with the other parent as his or her partner on a genuine domestic basis.

Section 9 provides “separation” means “circumstances in which the parties to a marriage are, under the Family Law Act 1975 taken to have separated”. Thus the principles are the same and the date separation occurs is relevant.

The child support calculator or child support estimator link is available in an earlier blog post for anyone wanting to obtain an indication of child support payments payable.

Family law advice

If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, my firm Hooper Mill Family Lawyers can assist you with practical advice. We are Brisbane Family Lawyers servicing all areas.

Articles written by Peter Hooper, Blog, Costs, Separation

Tips to reduce family law solicitor legal costs

Peter Hooper accredited family law specialist is a Brisbane Family Lawyer and Director of Hooper Mill Family Lawyers, a family law firm in Brisbane practicing exclusively in Family and Relationship Law.

Most family lawyers in Brisbane, and across the country, time cost. Therefore it stands to reason that if you’re able to assist your lawyer to reduce their time, you will save money on fees.

One of the areas where a lot can be done to assist your lawyer in reducing time is with affidavits required to be filed in family law matters in the Federal Circuit Court of Australia and Family Court of Australia.

What is an affidavit? It is a sworn statement of the evidence you will rely upon at a hearing in family law cases. In most family law matters your evidence in chief, that is the facts supporting your case, is communicated in a affidavit format.

The affidavit is your story told by you and therefore if you know some of the rules about producing an affidavit, and produce a good draft yourself in a Word format, you can help reduce your costs. Here are some tips:

What are the requirements? – The rules for each jurisdiction set out the requirements and are summarised below. You can find the Rules by clicking the links below or by visiting the relevant Court websites:

Rule 15.08 Family Law Rules 2004 “FLR” and rule 15.25 Federal Circuit Court Rules 2001 “FCCR” (Div 15.4 FCCR) provide for the use of the printed forms. Again the forms are available in a Word format on the Court Website or on our website via the following link: Hooper Mill Family Lawyers forms.
The forms have places for the names of the parties, official court section to be completed and the statement at the end to be completed by the qualified witness i.e. JP/Commissioner for Declarations or solicitor;
Rule 15.09 FLR – the affidavit should be:

o Confined to the facts in dispute relevant to the issues in the case;

o Confined to admissible evidence;

o Consecutively numbered paragraphs;

o Sworn in the presence of the qualified witness;

o Signed on each page;

o Filed in court;

o Any alterations should be initially by person swearing and witness;

o—Use words for the month in a date i.e. 30 May 2014 and figures for

number i.e. $20 for twenty dollars.

o Annexures – need to be attached and referenced etc.

Rule 24.01 FLR the affidavit should:

o Written legibly – preferably types in a 12 point font;

o Be on A4 sized paper;

o Have left and right margins so it can be read when bound but no more than a 2.5cm margin;

o Be at 1.5cm line spacing.

The affidavit is your story but tell your story in chronological order i.e. start at the beginning and work towards the most recent relevant circumstances.

Don’t be afraid to use headings. Sometimes if the story needs to be broken up over several different topics, heading will allow you to group your topics into relevant areas. Headings can also assist you to organise your thoughts to cover everything you need to, and most importantly make your affidavit easier to read.

Make sure the affidavit is simple, clear and brief. Don’t use 40 words to say what you can in 4.

Affidavits are sworn documents that must be truthful. You may have to include something you think is bad for your case, make an apology, or make a positive acknowledgement of the other party. Being truthful is more important to your case than any other aspect and often more “points” can be scored with the judge by being truthful than contradicting what you perceive to be a fact in favour of the other party.

Complying with the rules will make your affidavit easier for the Judge to read; which means the facts you want the Judge to be aware of will be more easily understood.

Please remember it is not your job to form conclusion that is the Judge’s job. A good affidavit only sets out the “relevant factual matters”. Judges have a lot to consider and generally do not look favourably upon reading large volumes of unnecessary material.

Try and avoid emotive language and adverbs. This type of language tends to try and lead the Judge towards a conclusion. Adverbs are words that tell as more about a verb. For example John “simply” turned and walked away; or John “literally” slammed the door. Statements containing adverbs may lead the Judge to conclude a lack of credit or tendency to exaggerate.

Hopefully you have found this helpful but please note there are many other considerations to putting together a persuasive and effective affidavit. This blog is not intended to cover every circumstance and before filing your material; I recommend that you attend upon an accredited specialist family lawyer in Brisbane for advice.