There are significant differences in the tax consequences of certain family law related actions particularly when negotiating property settlement outcomes – the cutting of the cake!

Unique opportunities in the family law environment can enable a couple to lawfully restructure wealth while avoiding, or minimising, the hefty tax and revenue consequences. Conversely, concluding a family law property settlement only to discover adverse and unintended tax consequences is the last thing anyone wants.

Naturally this area is very complex and each person needs to seek their own advice to ascertain their own tax implications from an experienced family law expert.

 Different ways a couple can reach a property settlement

 Separated couples do have choices when it comes to resolving the division of their property. There are a number of ways in which a separating couple can adjust their property interests, most commonly these include:

• Implementing transfers amongst themselves;
• By a Court Order (either by consent or after a Defended Hearing);
• By way of Financial Agreement under the Family Law Act.

This article examines the tax consequences for the different types of assets that are often held. We highlight some beneficial restructuring opportunities that are unique to family law property settlements and, if used with care, can allow spouses to maximise their property settlement outcomes.

There are two main revenue taxes Stamp Duty and Capital Gains Tax:

 Stamp Duty

The Family Law Act contains an exemption from duty payments on transactions which adhere to a Family Court Order or certain financial agreements.

In some cases, if the terms of the order or agreement clearly provide for it, property can also be transferred from a spouse to a company (trustee of a trust), or vice versa.

Rulings as to transactions under Family Law Act Orders and specified financial agreements are usually available from state-based Stamp Duties Authorities as they can be subject to discretionary decisions.

Capital Gains Tax (CGT)

In lengthy marriages it is not uncommon for the property pool to comprise investments acquired many years prior with significant unrealised capital gains. Fear can surround the selling down of these assets to create cash sufficient to implement a property settlement, given the tax liability which will be triggered on the disposal and which will immediately erode the asset pool.

However, if orders are made or a financial agreement reached in accordance with the Family Law Act, the triggering of such CGT liability is automatically deferred as roll-over relief under the matrimonial exemptions of the Income Tax Assessment Act 1997.

This means that the title to the asset passes from one party to the other on the basis that the unrealised gain is deferred until the spouse receiving the asset disposes of it at some future point. The receiving spouse is deemed to have acquired the asset when the transferor did, the extent of any gain being calculated based on the transferor’s cost base at the time of the transfer to the receiving spouse, plus incidental costs.

Roll-over relief also ensures that a pre-CGT asset can be transferred to a spouse while preserving its pre-CGT status.

This relief can potentially be used to address ‘sleeping giant’ tax issues by moving an asset from one spouse to the other (so as to access concessional rates of tax or capital losses available to one spouse but not the other) before a disposal occurs, so that the optimum tax outcome can be achieved in respect of any capital gains.

 A short summary of tax consequences for different types of assets is set out below:

 Real estate

The most common form of real estate is the matrimonial home which is often held in the joint names of the separating couple. Generally, a settlement which involves the transfer of the matrimonial home from one person to the other will not be affected by Capital Gains Tax. This is because the Capital Gains Tax legislation contains a main residence exemption.

Investment properties

Families often have investment properties which are held in the name of one or both of the parties, or in the name of a corporate entity as Trustee for a Family Discretionary Trust.

If the property was acquired after 20 September 1985, a transfer of the property will generally trigger a Capital Gains Tax liability. This means that the difference between the cost of the property and the sale price (or half the difference if the property has been held for more than 12 months), will be added to the income of the person selling and taxed at the marginal income tax rate.

An investment property owned by one spouse can be transferred to another spouse by way of property settlement, with a stamp duty exemption.

Family Trusts

Where a Trustee of a Family Trust holds real estate this can, in some instances, be transferred to a spouse beneficiary through a Court Order or Financial Agreement. This may attract a ‘rollover relief’ which will postpone the payment of Capital Gains Tax.

 Shareholdings

Transfers of shares between spouses and de facto couples are generally subject to Capital Gains Tax unless the transfers are by way of a Court Order or a Financial Agreement which then enables it to attract “rollover relief”.

Motor vehicles

Transfers of motor vehicles are generally not subject to Capital Gains Tax.

Businesses

A transfer of a business or a company structure operating a business or the closure or sale of a business, may have significant taxation consequences.

Specialist advice must be provided in order to ensure that any settlement is undertaken in the most tax effective manner.

 Conclusion

As you can imagine the tax implications that can arise through divorce are almost boundless.  For those who take advice from their specialist lawyers and accountants early in their property settlement, there is potential for some restructuring benefits.

Having a legal expert thinking creatively in terms of options and taking into account the nature and characteristics of the property pool, there is potential to move assets into a position where there are reduced revenue consequences and with deferred and potentially minimised tax consequences.

The law here is very complex and if you know someone who might need assistance feel free to get them to call us on 07 3281 6644 or email mail@powerlegal.com.au.

A parenting plan is an informal written parenting agreement that includes parenting and care arrangements for children but has not been formally approved by the Federal Circuit and Family Court of Australia (FCFCA). Parenting orders (or consent orders) are written parenting agreements that have been approved by the FCFCA through an application made to the court. Parenting orders may also be made by the court after a hearing.

The pros and cons for both parenting plans and parenting orders are discussed below.

Parenting Plans

Sometimes former partners are able to reach an amicable agreement about arrangements for their children without the need to commence court proceedings. This agreement is usually referred to as a parenting plan. Provided the parenting plan clearly sets out the rights and obligations of each parent (or any other relevant person), is signed and dated by each person involved, it should generally be deemed as a sufficient parenting agreement.

A parenting plan can address issues such as:

• who a child spends time and lives with;
• the parental responsibility for a child;
• arrangements for special days such as birthdays, religious, and other holidays;
• procedures for making long-term decisions regarding the care, welfare, and development of the child.

As parenting plans are not legally binding, it is advisable to include procedures for varying the plan and the methods that can be used to resolve any disputes about the terms in the actual plan.

As noted, a parenting plan is not binding and accordingly cannot be enforced by the court. If you would like your parenting plan to be legally binding, you can file an Application for Parenting Orders with the FCFCA. It is usually recommended you do this – although you may have an amicable relationship with your ex-partner, circumstances can change quickly (such as your ex-partner entering into a new relationship) which can affect your parenting plan. Applying for your parenting plan to be made into a parenting order is usually a straightforward process which involves submitting your plan to the court for approval by the Registrar. Once the Registrar is satisfied that the plan is in the child’s best interests, court orders reflecting your parenting plan will be granted.

Parenting Orders

A parenting order is a written agreement that has been approved by the FCFCA through an application made to the court. The order covers parenting arrangements for children.

The FCFCA must be satisfied that the orders sought are in the best interests of a child before they are approved. Once the parenting orders have been approved by the court, they have the same legal standing as if they had been made by a court after a hearing.

If any party included in the parenting order breaches its terms, other parties stated in the orders are entitled to make a Contravention Application with respect to that breach, and the party in breach can be sanctioned by the FCFCA.

What happens if a party breaches a Parenting Order?

If you believe that one of the parties included in your parenting orders has breached a term of the order, you should complete and file an Application for Contravention alleging the party has breached the orders.

The FCFCA will consider the allegations and facts of the Contravention Application and may do the following:

• find there was no contravention;
• find the contravention was established but there was a reasonable excuse for the party breaching the parenting order;
• determine there was a less serious contravention without a reasonable excuse;
• determine there was a more serious contravention without a reasonable excuse.

If is important that you seek legal advice before filing an Application for Contravention as the court may require you to pay all or some of the costs of the other party if it finds there have been no contravention of the orders. This may also apply if the contravention was established but with a reasonable excuse.

The court also has the power to vary parenting orders but will only do this sparingly.

Consequences of breaching a parenting order without reasonable excuse

If the court finds a party included in a parenting order is in breach of the order without having a reasonable excuse, the court may take the following actions:

• order that the person in breach attend a post-separation parenting program;
• make a further order to compensate for any time lost with the child;
• make an order for the person in breach to enter into a bond, possibly with conditions such as requiring the person to attend family counselling;
• order that the person who committed the breach pay all or some of the costs of the person who filed the contravention proceedings, fine the person in breach; or sentence the person in breach of the order to a term of imprisonment, depending on the seriousness of the breach.

Conclusion

Parenting orders and parenting plans both have their pros and cons. Although parenting plans are convenient and generally cheaper to draft than parenting orders, they are not legally enforceable by a court. This is why it is often recommended that an application be made to the court for parenting plans to adopt the status of parenting orders. This way, all parties to the parenting order will have legal protection if needed.

This article provides general information only and you should obtain professional advice relevant to your circumstances. We always recommend you seek legal advice from an experienced lawyer before entering into any parenting agreement.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

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

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

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

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

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

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

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

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

We both keep our separate superannuation accounts

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

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

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

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

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

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

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

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

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

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

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

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

Family law matters end in a court-room battle

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

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

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

Conclusion

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

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

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

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

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

Why value a business?

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

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

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

Choosing a valuer

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

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

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

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

Arranging the report and the importance of disclosure

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

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

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

Valuing the business

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

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

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

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

Conclusion

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

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

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

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

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

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

What is a parenting order?

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

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

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

Who can apply for a parenting order?

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

This may include:

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

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

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

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

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

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

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

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

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

Conclusion

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

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

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

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

What constitutes domestic violence?

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

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

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

How do you apply for a DVO?

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

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

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

Types of orders

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

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

Breaching a Domestic Violence Order

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

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

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

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

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

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

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

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

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

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

What is Gender Dysphoria?

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

Gender Dysphoria treatment

There are 3 stages of treatment for gender dysphoria.

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

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

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

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

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

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

The Kelvin case

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

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

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

Conclusion

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

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

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Settling your family law matter in the court system can be stressful, expensive, and most likely, a lengthy process. Understanding the timeline of court directions and procedure will help you prepare for the process.

This article provides the most important tips to help make the court process as smooth and productive as possible.

It is important to remember that court proceedings should be relied on as a last resort after all attempts made to negotiate a settlement.

We strongly recommend that you seek legal advice from an experienced family lawyer before commencing a court application.

Understanding the timeline for court hearings

Family law matters proceed through the Federal Circuit and Family Court of Australia. There are four types of hearings that usually take place during family law proceedings in the court, these include:

• Direction Hearings or Mentions;
• Interim Hearings;
• Call overs; and
• Final Hearings.

Learning about proceedings in the FCFCA

They say knowledge is power, so we recommend you invest some time educating yourself about procedural issues and the law. If you have a family lawyer managing your matter, ask them to explain the process to you in simple language.

If your proceedings involve a property settlement, you should have a thorough understanding of the likely outcomes and property division. If your proceedings involve the care of children, you should ensure you understand the possible outcomes for orders and arrangements for your children.

If you are unable to pay for a lawyer to represent you, you can request an appointment for representation from a Legal Aid lawyer, or at the very least, seek legal advice in relation to hearings.

Identify the issues in dispute

It is imperative that you work out the legal issues you and your ex-partner cannot agree on.  Clarify what you want to achieve from the hearing, and understand the other party’s wants.

When the differences between each party are clear, make a list of the strengths and weaknesses of your case. Plan how you will respond to any arguments made by the other party in relation to weaknesses in your matter.

Ensure that you:

• have relevant documents ready to hand to the Judge or in your sworn affidavit;
• have prepared written submissions to be handed up to the Judge;
• include a chronology of events, if appropriate;
• write out the orders you are seeking.

Doing the above, even if you have legal representation, will assist your lawyer preparing your case and may even save you costs in legal fees.

Evidence

The court can only consider evidence that is relevant to your matter and ‘admissible’ (i.e., able to be used in court). Evidence is usually admissible if it supports a party’s argument, or helps to weaken the other party’s argument.

Be objective about the evidence required. The evidence must be directly linked to your argument.

Don’t use unnecessary evidence which may be distracting. At the same time, you must keep in mind your duty to disclose material relevant to the issues in dispute.

Sometimes evidence that might seem relevant can’t be used in court.

The rules surrounding evidence can be complex so we strongly recommend you seek legal advice in relation to the evidence you will be relying on.

During the hearing

The general dress code for court is business attire, you should ensure you look neat and tidy. When entering and leaving the court room, it is etiquette to bow to the Judge and always stand when the Judge speaks to you. Ensure that your mobile phone is switched off. Following good court etiquette gives the Judge an indication of your character.

Remaining calm and reasonable in court, regardless of how heated arguments become, is very important as it shows the Judge that you are generally a calm and reasonable person.

When the Judge asks you a question, ensure you directly answer that specific question. Courts are under pressure from time constraints and appreciate direct and straightforward answers to questions.

Video conferencing

The court conducts hearings both in person and electronically via video link and telephone. This is referred to as ‘video conferencing’. The court will advise if your matter is listed for a remote hearing.

Electronic hearings are conducted as proper and formal court hearings which means the usual Rules of Court, court procedures and etiquette are expected to be complied with.

You can request your hearing be conducted electronically (using the relevant form which can be found on the court website). The court may also direct that the hearing be held via video link or telephone.

How do I find out where and how my hearing will take place?

You can usually find the above information by checking court orders, if your hearing was listed when the judge or registrar made the orders, or in emails or letters about your matter from the court.  If your hearing is listed to be heard electronically, the court will send you or your lawyer an email with instructions on how to join the hearing and what documents you will need to provide the court before the hearing date.

  Conclusion

Preparing for a family court hearing involves a lot of work and is time consuming. Ensuring that you have all documentation required and a thorough understanding of court procedures is vital for a successful outcome.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Separated couples unable to resolve matters regarding parenting and finances through mutual agreement can apply for interim orders in the Federal Circuit Court (or Family Court for some more serious and complex cases).

Interim orders are “temporary orders” and usually made as a matter of urgency to determine parenting and financial matters until the final hearing.

Although interim orders are temporary, it is important to ensure you understand your rights and entitlements regarding parenting and property arrangements as a status quo is sometimes set by interim orders.

What are interim orders?

Parties have the option to apply for interim orders as there is a general waiting period of up to 12 months or longer for a final hearing where final orders are made. As such, interim orders are “temporary” orders that are required for urgent matters, mainly regarding the care of children.

For most property matters, there is no need for interim orders, unless there are urgent issues needing to be addressed, for example, which party will remain occupying the former home where the couple resided.

We strongly recommend you speak with one of our family lawyers who can provide you with advice tailored to your situation.

How do I get interim orders?

Before making an application for parenting proceedings, parties must first attempt Family Dispute Resolution (FDR) with a mediator, unless there is history of family violence or child abuse. If no agreement regarding parenting is reached during FDR, or if one of the parties does not participate, the parties will need to apply for interim orders.

When applying for interim orders regarding a parenting application, an Affidavit and a Notice of Risk is required to be filed with your application. You must also file a 60i Certificate with your application for interim parenting orders.

If you are making an application for financial interim orders, you must submit an Affidavit and a Financial Statement with your application.

A fee will need to be paid at the time an application for interim orders is lodged.

Interim hearings usually take place between 2-3 months after an Initiating Application is filed.

Even if the other party has filed an application for an interim order first, you may still file your own application through a Response. Once your Response has been submitted, you will be in the same position as the other party.

An interim hearing may also be used to obtain the following types of Orders:

• Drug testing;
• Recovery Order;
• Restraints on certain behaviours;
• Appointment of an Independent Children’s Lawyer.

There is a lot of work involved in preparing an application for interim orders. To ensure you have included all necessary documents and information for your application and that you have drafted your affidavit correctly, we strongly advise you speak with one of our experienced family lawyers.

What happens during an interim hearing?

In interim hearings, courts do not make rulings on disputed facts because the evidence presented cannot be tested by cross examination. Courts make interim orders based on respective applications, affidavits, relevant reports and/or submissions made by both parties. Interim hearings are generally heard in less than two hours unless there are special circumstances which can cause the hearing to go over 2 hours.

An interim order for parenting may include the following;

• who the children of the relationship will reside with;
• the amount of time the children will spend with each parent and other people, such as grandparents;
• details of parental responsibility;
• how children will communicate with the parent they do not live with (including other people);
• any other factors related to the care, welfare or development of children.

When determining the above, the court will consider what is in the “best interests of the children.”

An interim property settlement (also referred to as “part property settlement”) can generally be described as an “advance” on what a party is likely to receive in a final property settlement. Interim property orders usually provide for funds to be used by one of the parties after separation. These funds may be used for whatever purpose the party seeking the interim order chooses, such as purchasing a property, car, paying legal expenses or for day to day living expenses. It is important to keep in mind that the funds allocated in the interim property order will be treated as part of what that party will receive in the final property settlement, i.e. these funds will be deducted from the final property settlement.

Conclusion

Interim orders are made as a temporary, urgent solution to a separated couples’ parenting and financial situation. At the final hearing, the court will examine all evidence, listen to cross-examination of the parties, and will then make final orders.

If a party wishes to apply for parenting orders, they must attempt ADR before doing so.

Considering the lengthy delays experienced in the Family Law Court, interim orders often remain in place for a long time. This means they can sometimes have an impact upon the final orders that may be made by the court, so it is crucial to seek advice from an experienced family lawyer who can ensure that proper time, care and effort has gone into preparing and presenting your case at the interim hearing.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Financial abuse occurs where a person uses systematic coercion to control another family member’s access to money or assets, whether the victim of the financial abuse is currently in, or was in, an intimate relationship with the perpetrator. Financial abuse is considered a form of domestic violence.

There is recourse and assistance available for people who are experiencing financial abuse.

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

What is considered financial abuse?

Financial abuse occurs usually between intimate partners, when one controls or manipulates the other person’s access to finances, assets and decision-making to create dependence and control such as:

• restricting another person’s access to bank accounts;
• completely controlling their finances and money or forbidding a partner to work or make their own money;
• not allowing a partner to use their own money or taking it away from them;
• monitoring how a partner spends money or makes financial decisions;
• using a partner’s money without their permission.

Financial abuse can be subtle or overt and is often not the only type of violence perpetuated against a partner. It can be accompanied by other types of abuse such as physical violence. Perpetrators of family violence usually use financial abuse as a means of stripping a victim of resources to leave the abusive relationship.

Examples of financial abuse

An example of financial abuse can occur where a spouse relies on the other spouse to earn an income for their family. The other spouse constantly pretends they’re searching for a job while in actual fact, they are instead at a friend’s house, or out indulging in leisurely activies.

Another example can include a husband insisting his wife provide him with every grocery receipt for his approval. If the husband doesn’t agree with any food purchases, he lectures his wife for hours. This can lead to a person not being able to choose what type of foods they want to eat.

What can I do if I’m experiencing financial abuse by my partner?

The most important thing is your safety and wellbeing. The police may either charge the violent person with assault and/or apply for an Apprehended Domestic Violence Order (ADVO) for your protection. If you prefer to remain in the house with your children, you can ask the police to remove the violent person from your house. If you need to speak to someone about advice on leaving your relationship, you can call the domestic violence hotline. The hotline can refer you to other services available for people in your situation.

If you are experiencing financial abuse, it is important to take legal action as soon as possible which may involve commencing court proceedings to prevent your financial situation worsening. This is because your assets are at a risk of being stripped or all your money being spent by your abuser.

You can apply for an urgent application in the Federal Circuit and Family Court of Australia (FCFCA) to get an injunction to prevent your assets being moved to other accounts, spent or your mutual funds disappearing. An urgent application for an injunction will usually get your matter before the court within weeks as opposed to the three months (plus) it can take to have a non-urgent proceeding heard before the court.

It is important to keep a list of documents that can confirm the existence of financial abuse, and to ensure that collecting this evidence is done safely. For example, credit card statements that can prove that a partner has money even though that partner is refusing the victim access to purchase goods they need. Credit or other financial product/service applications made in the victim’s name without their knowledge, is good evidence to retain safely, preferably in a trusted family member or friend’s home.

This area of law can be complex, especially given the urgent nature of court applications, which is why we strongly recommend you seek advice from an experienced lawyer.

Conclusion

If you are experiencing financial abuse and are worried about your health and safety, it is important to seek help from the police who can assist in applying for an ADVO.

You should also seek advice from an experienced lawyer about ways in which you can protect your wealth and assets being jeopardised and how to collect relevant evidence that can assist in you applying for an urgent injunction if you choose to go down this path.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.