Family law has the capacity to inflame emotions in a way that very few other issues can.  Most will have a story of a friend, acquaintance or family member that has been let down by the system and unfairly derived of time with their children or their material wealth post separation.  It is difficult to countenance criticisms of the system that are more general in nature.  The law is highly discretionary in that what is in the best interests of a child will depend upon that unique child and his or her situation.  Similarly, what is just and equitable when it comes to the division of property will depend upon a myriad of variables, and some might argue rightfully so.   One rule for all has potential to generate enormous injustice.

Whilst your lawyer should be in a position to provide you with specialist advice about what will happen in the event that a matter progresses to Court, ultimately you’re unlikely to be amongst the limited number that ultimately reach the doors of the Court and a more pragmatic approach is required in order to get matters resolved quickly and on the best terms for preserving your post-separation parenting relationship.

Negotiating a path following separation is a difficult thing, and often there is little guidance as to how to move forward in a positive way.  The desire to protect a child from the repercussions of separation is often the highest priority for separating parents.   Whilst the law has the same agenda, it rarely offers practical guidance in relation to protecting children from emotional harm in the context of separation.   Lynne Clark and Cheryl Smith are both social workers, with extensive experience in the dynamics of separation and the effect of relationship breakdown on children.  In their book Separating Respectfully they have endeavoured to identify twelve `rules’ to protect your children from emotional harm.  They include:

1.     Parents must make the decisions around how each child will spend their time

2.     Adhere to any parenting agreement reached

3.     Be on time

4.     Use flexibility wisely (consistency is important)

5.     Negotiate with the other parent before you tell your children of any proposed changes

6.     Never communicate your arrangements through your children

7.     Do not question your children in detail

8.     Do not believe all your children tell you

9.     Respect the role of the other parent, even if you no longer respect the person

10.  Behave respectfully

11.  Prioritise your child’s experiences (in other words maximise the opportunity for your child’s positive experiences whilst in your care)

12.  Focus on yourself and what you are doing right rather than on your former partner and what he or she is doing wrong.

Efforts were made by the Howard Government in 2006 to move the Family Law from a more adversarial or Kramer v. Kramer orientation to a more collaborative approach.  Long term research has yet to establish how successful these changes have been in altering the experience of children caught up in parental conflict.

More information in relation to the publication Separating Respectfully can be obtained from www.separatingrespectfully.com

More information can be obtained from Best Wilson Solicitors in Toowoomba.

The information contained herein is not intended to be a complete statement of the law on any subject and should not be used as a substitute for legal advice in specific fact situations.

More recent publicity surrounding a number of celebrity surrogacy arrangements has highlighted the role of Surrogacy in allowing infertile couples the opportunity to share in the joys of parenting.

Surrogacy is effectively the act of a woman carrying a child to term with a view to surrendering care of that child to another party following his or her birth.  A child born of surrogacy may be biologically the child of his or her intended parents, the child only of the intended father, or not biologically related to either intended parent.

Prior to 1 June 2010, surrogacy was illegal in any form in Queensland, this included both commercial surrogacy (which involves payment) and altruistic (or non-commercial) surrogacy.

Following the introduction of the Surrogacy Act 2010 (Qld), from 1 June 2010 Queenslanders are now at liberty to enter into altruistic surrogacy agreements where certain very specific conditions are met.

Whilst specific and detailed legal advice is required before you contemplate such an agreement or conception, some important aspects of the new law include:

-       Intended parents can be married, in a de facto relationship (including same sex relationship), or even a single person;

-       There must be evidence of medical or social need for the surrogacy;

-       The Agreement must be made before the child is conceived;

-       Independent legal advice and appropriate counselling prior to conception for all parties is also a must;

-       The Agreement must be in writing;

-       The intended parents must be residents of Queensland;

-       All parties must be at least 25 years of age when the Agreement was made; and

-       The reimbursement of a birth mother’s reasonable expenses associated with the surrogacy is permitted under an Altrustic Surrogacy Agreement.

The Act allows the parties to the Agreement to make  application to the Court following the birth of the child in order to seek the transfer of parentage from the birth parents to the intended parents.

The most important thing to keep in mind is that a Surrogacy Agreement is not enforceable.  For this reason, it does pose a considerable risk to both birth parents and intended parents, and should be the subject of careful consideration.

More information can be obtained from the Queensland Department of Justice  or a Family Law Specialist.

The information contained herein is not intended to be a complete statement of the law on any subject and should not be used as a substitute for legal advice in specific fact situations.

All too often men and women who have played a significant role in the lives of children allow themselves to be distanced from an ongoing role in that child’s life following separation from the child’s parent, on the basis that they are not biologically related to the child.

The Family Law Act 1975 (Cth) imposes no requirement of biology upon a person wanting to play an ongoing role in a child’s life where there is an established history of meaningful involvement with that child.  Quite the contrary, the Court’s motivation in most cases, is to maintain the child’s stability and emotional supports following separation.

There is a significant quantity of case law reflecting the Court’s acknowledgment of the importance of step-parents spending time with children, including non-biological lesbian and gay parents who have either been involved in the conception of a child, or acted as a step-parent during their childhood.

Similarly, grandparents fall cleanly within the definition of someone whom has a right to seek a Parenting Order.  Unfortunately, sometimes relationships break down between the generations, and there is no requirement that the child’s parents have separated for a grandparent to seek specific scheduled time with a child.

Any issue of the time that a step-parent or grandparent will spend with a child will be resolved by reference to the question of what will be in the child’s best interests having regard to their unique sensitivities and personality.  Obviously, it’s imperative that a child is not destabilised by being shuttled between multiple residences, but in the case of a child whom has never known any other parents, the Court will routinely direct a more shared care arrangement irrespective of one parent not being biologically related to the child.  For the parent who does have a biological relationship with the child, it is important that he or she be conscious that they may ultimately be judged adversely if they have taken steps to discourage the child’s relationship with their former partner, or unreasonably limit the time they can spend together.

The Court will routinely emphasise the need for parents to move forward in a positive way, and with one eye on the benefit to their children of spending time with those adults and other children who have played an important role in their lives previously.

More information can be obtained from Best Wilson, Toowoomba Lawyer.

The information contained herein is not intended to be a complete statement of the law on any subject and should not be used as a substitute for legal advice in specific fact situations.

At Best wilson, Toowoomba family Law we are often asked about the value of `Pre Nuptial Agreements’, known in Australia as Binding Financial Agreements.   These are documents which set out, in a prescribed way, what will occur in the unlikely event of separation.  The agreement is signed by both parties after obtaining legal advice and will generally set out: -

- The assets and liabilities held by each party at the date of the Agreement (your separate  property’);

- Your shared intentions in relation to who is to retain your `separate property’ in the event of separation;

- How property acquired jointly during the relationship is to be dealt with if separation occurs; and

- How inheritances, gifts and windfalls are to be treated and divided if it becomes necessary to do so.

Agreements can be drafted in anticipation of marriage or simply cohabitation, or after both have occurred if a couple simply desire some clarity around where they both stand.

Importantly, the Agreement has the effect of `ousting’ the jurisdiction of the Court.  In other words, if an Agreement is  binding upon a couple who have separated, the Court is obliged to honour the terms of the Agreement unless the Agreement is set aside.   This avoids costly negotiation and litigation.

Naturally, raising the prospect of such an agreement can cast a shadow on what is an exciting and optimistic time.  It needn’t do so.    It is best to raise the prospect of the Agreement early, and by emphasising the benefit to both of you of having some clarity around arrangements.  Ironically, confusion about intentions and a lack of clarity around these issues can often lead to relationship conflict and the breakdown of a relationship.

Where one has already endured the emotional and financial cost of prolonged negotiations or litigation following a previous separation, often a great deal of comfort is drawn from knowing that if there is a next time (in terms of separation) there will be no question as to what is to occur.   Similarly, an Agreement has the potential to improve relationships between new spouses and adult children.  If adult children are assured as to the intentions of a new spouse, often they will be more willing to embrace the new relationship.  Also, if a spouse is deeply entrenched in family business or farming enterprises, there is really an obligation to protect other family members or business partners from the prospect of expensive litigation over the value of business/farming interests or worse still, the prospect of the sale of the family farm or business to pay out a departing spouse.

Be cautious of the allure of a `budget’ agreement or pro forma Agreement.  If the Agreement is not prepared properly and specifically for your personal circumstances, it is more likely to be set aside and afford you no protection at all.  The value of an Agreement to your unique situation is something that should be discussed on a confidential basis with your family law specialist.

More information can be obtained from Best Wilson Lawyers Toowoomba.

The information contained herein is not intended to be a complete statement of the law on any subject and should not be used as a substitute for legal advice in specific fact situations.

In recent weeks, the Australian Institute of Family Studies has published a number of significant research findings related to the effectiveness of the 2006 ‘shared parenting’ reforms. Shared parenting is defined as where a child spends five or more nights each fortnight with each parent following separation.

Arguably as a result of the reforms, the issue of `equal time’ or the `number of nights’ enjoyed by each parent with a child has become central to the assessment of the “quality” of a parent’s relationship with a child following separation. One particular study was focussed upon the issue of equal time in the context of two particularly vulnerable groups, school age children in high conflict separations and infants/preschoolers.

Put simply, the findings of the research include:

- That parents who had beneficial shared care arrangements in place lived near each other, tried to respect the competence of the other parent, and were flexible and accommodating rather than rigid in their approach
- For school age children, nurturing relationships with each parent and supportive relationships between parents had greater bearing on many outcomes than the actual time spent with each parent (in other words, acrimony and conflict are really dangerous to a child’s development)
- Rigid arrangements, often fuelled by acrimony and poor cooperation between parents, was associated with higher depressive and anxiety symptoms for school age children
- Regardless of parental cooperation and acrimony, shared overnight care of children less than four (4) years of age had an independent and significantly damaging impact on several emotional and behavioural outcomes for little people
- As children grow older, and particularly once they have developed the capacity to self-soothe and anticipate what each day will bring (generally around the age of 4 to 5), they are better able to straddle households in a shared overnight arrangement
- The research does not support using `shared care’ as the starting point for infants and children under four years
- Shared care will be a viable option for older children where parents can work together, are attuned to their children and prepared to be flexible
- Arrangements may need to change over time in order to be responsive to the changing needs of each child.

While it is anticipated that the above research will heavily influence the outcome of family law disputes concerning parenting arrangements for children, every situation is unique, and requires specialist legal and psychological advice.

The information contained herein is not intended to be a complete statement of the law on any subject and should not be used as a substitute for legal advice in specific fact situations.

More information can be obtained from Best Wilson Solicitors Toowoomba.

The information contained herein is not intended to be a complete statement of the law on any subject and should not be used as a substitute for legal advice in specific fact situations.

Best Wilson Family Law are the largest Toowoomba family law practice providing family law services to the whole south-west of Queensland, including Warwick, Dalby, Stanthorpe, Roma, Charleville and St George.

More information can be obtained from Best Wilson Solicitors in Toowoomba.

A family law property settlement generally happens in three distinct steps. The first of which is valuing your property.

In other words, determining the net value of all property. This is irrespective of whether property is held legally by yourself, by your former partner or by both of you jointly. Property includes real estate, cash, investments, furniture, motor vehicles, interests in a company, trust or partnership and superannuation.

A value must be determined for each item of property and initially we encourage our clients to seek their former partner’s agreement to a value. In the event there is no agreement, both of you can agree to the appointment of a joint expert to value the relevant item of property. At the conclusion of this step, you will be in a position to identify all property and the net value of your property pool.

Often the smaller items of property like the furniture and household goods held by each of you that can cause problems with agreeing a valuation. Sometimes people will claim that the furniture in the other party’s hands is worth tens of thousands of dollars. This may be because they have valued the property at a “replacement” or insured value as opposed to a second hand value. For the purposes of negotiations it is important that all furniture and chattels be taken at their current sale value or second hand value. This is often much lower than the replacement value.

In order to value a superannuation interest there is a process to be adopted under the relevant regulations. We are able to assist you in this regard.
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More information can be obtained from Best Wilson, Toowoomba Lawyers.

The information contained herein is not intended to be a complete statement of the law on any subject and should not be used as a substitute for legal advice in specific fact situations.

Following separation, there are a number of important things you must attend to. It is necessary for both of you to make some immediate decisions in relation to more practical matters impacting upon your children and joint assets. These include answering questions such as:

1. How will we explain our decision to separate to the children?
2. How do we best allow the children to maintain the same level of time and contact with each of us immediately following our separation?
3. How do we minimise disruption to the children?
4. What arrangements can be made for our living and financial arrangements immediately following our separation?
5. In what way will we continue to meet our obligations to joint liabilities pending an agreement about the division of our property?
6. What will happen to any joint bank, building society or credit union accounts in the short term?
7. Can we agree as to how to divide our household effects, furniture and motor vehicles?

From my experience, these conversations are usually very difficult given the heightened emotions. That said, they are fundamentally important questions that if you and your former partner can agree to answer, then the process going forward will be significantly easier.

If you are struggling to reach agreement on these preliminary issues, there is assistance available from Toowoomba lawyers, Best & Wilson.

Quite often separated couples are assisted by a counselor or psychologist to help facilitate their discussion around these issues. Often a local professional is available on a more urgent basis to assist in this regard.

The information contained herein is not intended to be a complete statement of the law on any subject and should not be used as a substitute for legal advice in specific fact situations.

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Separation can be an incredibly difficult time for everyone concerned, particularly children. Not only do you need to ensure that you’re managing your own emotional wellbeing, often your experience is complicated by the need to respond appropriately to the grief and adjustment difficulties experienced by your child or children. Often, significant and meaningful assistance can be provided by interacting with a psychologist or counselor who is experienced in assisting both adults and children to adjust to life following separation.

Alternatively, Family Dispute Resolution (“FDR”)is a formal mediation process offered by a number of community providers. There is sometimes a waiting time attaching to these services which sometimes precludes their use around the time of separation when time is of the essence. Your closest Family Dispute Resolution provider can be located by telephoning 1800 050 321 or visiting Family Relationships Online.

More information can be obtained from Best Wilson, Toowoomba Solicitor.

The information contained herein is not intended to be a complete statement of the law on any subject and should not be used as a substitute for legal advice in specific fact situations.

The second step in a property settlement is an assessment of your respective contributions to your property pool, including both financial and non-financial contributions.

Financial contributions are made directly or indirectly by yourself or your partner towards the acquisition, conservation or improvement of matrimonial property.  An example of a direct financial contribution is the income you earned during your relationship through employment.  A further example of a financial contribution is the monies or property that you brought into the relationship at date of cohabitation, or a redundancy or compensation payment received by you.

An indirect financial contribution might be a gift of monies received from your parents in order to enable you to purchase a property or another item.  A non-financial contribution can be made directly or indirectly by either of you towards the acquisition, conservation or improvement of matrimonial property.  This is often interpreted to include renovation and repair work but most importantly it includes time spent caring for children and domestic contributions around the home.

A further category of contributions are those made by you to the welfare of your family.  Again, your contributions as a homemaker and parent are relevant to this consideration.  Generally the Court will not be focused upon the minutia of contribution, in other words they won’t be overly interested in who washed the dishes or who mowed the lawn on a particular date nor who undertook a specific renovation to a property.  A more ‘global’ approach is taken.

While there is no presumption in this regard, in a normal relationship of a reasonable duration, where both of you commenced your relationship on an equal footing, the Court will generally find that the contributions of each party have been equal.  This is likely to be altered by any significant contribution on your part or your partner’s behalf by way of windfall, inheritance or major gift.

Each case is different and will be determined on its unique facts.  Generally speaking, the Court will regard the contributions of a homemaker as equal to those of the party whom generated an income to support the family.

If you require assistance with your property settlement, help is available from Toowoomba solicitor, Best Wilson.

The information contained herein is not intended to be a complete statement of the law on any subject and should not be used as a substitute for legal advice in specific fact situations.