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Time Limits in Family Law Matters

It’s not unusual in many areas of law to apply time limits to the performance of a task or making a claim. Typically, time limits are something that lawyers are very mindful of when first meeting with, and advising a client, because if time limits are missed, the family lawyer could potentially be liable if a client suffers loss.

Sometimes “timing” is important to a client as well. I have often been asked “should I wait to do my divorce before I finalise property settlement?” or with respect to relocating children “should I wait before going to Court”? These types of situations fall into the strategy of a case and there are many more examples where timing is important for a satisfactory outcome.

The following are some (not all) of the important references to time that occur when you’re involved in a Family Law matter.

Divorce

Since 1975 there has only been one ground for Divorce in Australia. That is “irretrievable breakdown of the marriage”. This is evidenced by a 12-month continuous period of separation. However, to promote the opportunity for reconciliation, married couples can get back together for up to 3 months without “resetting the clock”.

For example, if I’m separated for 3 months and get back together for up to another 3 months and then separate again, the first 3 months is counted as part of the 12-month continuous period of separation. If I get back with my husband or wife for 4 months though, the 12 months would need to start again.

Also, if I’m only married for 2 years there is an additional requirement for a “counselling certificate” and counselling before the Divorce can be filed. Again, this is designed to “give love a second chance” and see whether the marriage can be saved.

Limitation periods for property claims

There are restrictions on when a claim for property settlement can be brought which are slightly different for married or de facto relationship couples. Lawyers call these time limits “Limitation Periods”.

The time limits are:

For married couples within 1 year of the date of a Divorce.
For de facto couples within 2 years of separation.

For married couples the time limit will not commence until a Divorce occurs. Many people think of the Divorce as covering all of the property and children’s issues however this is not the case.

A Divorce is only the termination of the marriage. People can resolve parenting issues and property settlement without ever being Divorced. Conversely, people can be Divorced and not resolve property issues.

There are some cases where people have waited long periods of time, haven’t been Divorced and seek property settlement (some more than 20 years after separation). This is not advisable as it introduces much complexity into the issues to be resolved. Without delving too far into issues of “contributions”, contributions have a different character post separation and long period of separate economic activity can be difficult to assess. In some cases, Courts have determined that after such a long period it may be no longer “just and equitable” to adjust property interests, which is a requirement of the power of the Court to Order a property settlement.

Most married people make the property settlement a priority before the Divorce and in my view this is sensible. There is no danger of the Limitation Period expiring and it makes the process simpler. In my experience complexity in legal matters typically means higher costs.

For de facto couples since 2009 (in most states) they enjoy the same processes as married couples, and the substantiative law is largely the same. However, not so regarding the Limitation Period. While married couple have 1 year it operates from the date they obtain a Divorce. De facto couples have 2 years but this time starts running from the date they separate.

In practical terms a looming Limitation Period means to protect it from expiring a Court Application must be made. Most people don’t want to go to Court and would prefer to negotiate a settlement so making sure there is sufficient time is important. Going to Court doesn’t mean you can’t negotiate a resolution, but it adds to stress and costs.

What if the Limitation Period does expire?

If the Limitation Period does expire it doesn’t necessarily mean you can’t proceed with a claim.

However before making the claim the other party would need to consent to it proceeding or permission of the Court (known as leave of the Court), would need to be obtained.

Leave of the Court will be granted if the Applicant can successfully establish “hardship” to a party or a child.

There are numerous cases with respect to hardship, some of the main points are as follows:

Hardship is akin to hardness, severity, privation, that which is hard to bear or a substantial detriment (Whitford [1979] FamCA 3).
Weight ought to be given to the intention of the limitation periods (Whitford [1979] FamCA 3).
Matters such as the length of the delay, reasons for the delay, prejudice to the respondent occasioned by the delay, the strength of the applicant’s case and the degree of hardship… are to be give weight. (Sharp [2011] FamCAF 150 citing Whitford).
The application ought to have a prima facie case worth pursuing not the mere loss of a cause of action. (Sharp [2011] FamCAF 150).
“Prejudice” to the respondent includes where a party is faced with a cause of action, he or she had no reason to expect or had been led to believe would not be brought.” (Frost & Nicholson [1981] FamCA 45).

If the other party requires the Applicant to obtain leave apart from the risk of the Court denying the Application, costs will be significantly increased.

The moral of the story is (in my opinion) there is no substitute for early advice from a specialist family lawyer for advice, including with respect to issues such as timing.

Other Family Law time considerations

Your family lawyer will be able to advise you with respect to timing issues from time under the Federal Circuit Court Rules 2001 or Family Law Rules 2004 to take certain steps, or the need to respond to a time limit imposed by a family law solicitor acting for your ex-partner.

Being experienced lawyers, we know the tactical considerations that ought to be borne in mind. With parenting matters this can be critical to your case because a change in a child’s circumstances can be material to the outcome.

The bottom-line is don’t procrastinate, be proactive and find out where you stand early following separation.

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 family lawyers servicing all areas in Brisbane and on the Gold Coast.

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.

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