Viewing entries tagged
nevettfordmelbourne

Who stays in the home?

When your Ex Won’t Move Out…..

There are times when both parties wish to remain in the family home post separation.  You may feel you have a greater right to remain in the home; maybe it was your home prior to the relationship or marriage.  You perhaps made greater financial contributions to the home or have primary care of the children, or you simply may have nowhere else to go nor the financial resources to leave.

Whatever the reason in the event of family law separation both parties are legally entitled to live in the family home.  It does not matter whose name is on the ownership of the house. 

If you leave the house, you do not lose your rights to a share of the house, or other property. You can also legally protect your interest in the family home if your name is not on the title by placing a caveat on the property which registers your interest in it.

You cannot be forced to leave the property at the mere demand of the other party in the absence of safety concerns.   If there are no safety concerns, no court orders have been breached, the removal of one party from the residence cannot even be enforced by the police.

Can you change the locks?

It is generally not advisable to change the locks as a tool to evict a party from the property, in addition to increasing the acrimony between the parties it can also reflect poorly in any subsequent court proceedings.

If the property is owned by one party, that party has the right to change the locks, if it is jointly owned then both parties are able to change the locks.  If the property is being leased then the landlord should be consulted about the lock change.   Even if the party who is remaining in the property is not the legal owner, it can nonetheless be justifiable for them to change the locks if the other party has moved out and has removed their possessions.  It is argued that the remaining party is entitled to the peaceful enjoyment of their residence, similar to that of a tenant.

How can I get my partner to leave?

To legally force your partner to leave the home and stay out, you will need to obtain an exclusive occupancy order from the court.  These orders are usually only made in circumstances involving threats, domestic violence and/or safety concerns for one of the parties or their children or whether the children are being exposed to parental conflict.  

We would need to explore the pitfalls of remaining in the home with your former spouse – weight it up against what you want to achieve by remaining in the property and is there a better option for you.  For example, if the costs of establishing a new household is a deterrent, we may need to consider whether an application for urgent or interim maintenance to fund relocation would be appropriate.

Can I take the children with me?

You can take the children with you if there are concerns about your safety and the children’s safety.  However, if you want to move away with the children and the move makes it difficult for the other parent to see them you need to try to get agreement first.

If you are afraid to try to get the other parent’s agreement and are worried about your safety, we can speak to you about your options.

If your former partner refuses to vacate the home or wish to discuss your options prior to separation and your matter generally, you should contact our office to make an appointment on 9614 7111.

Divorcing Over 50 – The Grey Divorce

Do you stay in a marriage that is over or risk financial ruin for happiness?  Unless you are a highly evolved Zen master your divorce is likely to “suck” – most do.

Getting divorced at any age is difficult. Everyone wants their marriage to work however divorcing later in life presents unique challenges and being newly single can be terrifying.   It is sometimes thought people “your age” are not supposed to get divorced.

If you are divorcing after 50, chances are your children may be teenagers or older. Their reaction may be unfavourable and even hostile. Be prepared to help older children cope with the divorce.  It’s also important to monitor your children’s feelings. Your kids may be older, but don’t assume it’s easier on them than it would be if they were younger.   You may choose to end your role as husband or wife, but your role as mother or father does not end. Handling your divorce process with your children in mind provides opportunities to share in their lives without the tension.

The financial consequences of a divorce can be significantly more damaging for older divorcing couples.  You may have dedicated your entire life to the family and marriage and have no professional skills of any kind. You have have been hard at work earning good money to support a family that now you feel has disappeared.  You may even already be retired, your assets fairly fixed and your employment opportunities may be limited.  There are now two households to support. 

An amicable divorce process will limit the cost of suffering financially and emotionally.  As difficult as dealing with all of these issues will be, one of the most significant impacts that divorce over 50 will have on your life is the inevitable financial strain.  The equitable division of assets and liabilities is a concern in almost all divorces and generally the older you are the more complicated your finances have likely become.

Given the typical level of assets and complexities it is important that you get legal advice, but doing so doesn’t mean you have to go to battle. No matter what kind of grey divorce you may be facing you have the power to choose how you handle it and we can assist you accomplish a more comprehensive and cost-effective dissolution of your marriage.   Even if your split is amicable it is important to seek your own legal advice early on.

Call or email us now for advice from one of our experienced and knowledgeable lawyers.

Is your Recovery Order Application warranted?

Recovery orders are usually made for a child to be returned to their primary carer, or the parent with whom a parenting order states the child lives with or the parent who has parental responsibility for the child.

In Renald & Renald (No.2) [2017] FamCAFC 133 (14 July 2017) on appeal, Thackray J set aside a Magistrates’ Court refusal to make a recovery order for the Mother. In this case the Father withheld the children after the Mother agreed to him having the children outside Interim Orders, saying the children did not wish to return to the Mother. Thackray J said that an order requiring the child to be returned “may send a message to the legal profession and their clients that the Court is willing to enforce its orders, and that parents should not take matters into their own hands where there is no evidence of risk”.

On one hand, parents should not be taking matters into their own hands, particularly swaying away Court Orders, including unilaterally withholding a child or removing a child from his/her primary carer where no evidence of risk is present. Aside from the fact that there is a potential breach of the Orders, you may run the risk of a recovery application with an order for costs made against you.

On the other hand, before rushing off and making an application for recovery order, it is always sensible to see if the situation can be resolved between the parents outside Court. It might be worthwhile sending a text to the other parent withholding the child setting a deadline, for example – “you are currently in breach of the Orders, unless you return the child back by 10:00am tomorrow, I will have to take legal actions in Court”. The Court would want to see that you have taken steps to find the child and made several attempts to negotiate with the other parent for the child’s return before taking appropriate action to involve outside authorities such as the Australian Federal Police to find, recover and deliver the child to you. It is also important that you collect as much information as possible about where the child is likely to be to increase your chances of recovering the child. Therefore your Affidavit material is absolutely crucial in this circumstance.

If all else fails and the child is still not returned to you, consider seeking legal advice from our friendly and experienced family lawyers who can assist you promptly through this emotional and difficult situation.

Same Sex Parenting

The law relating to same-sex parenting is complex and diverse. Firstly, we need to understand that in Australia, legislative power is divided between the Commonwealth and state governments. What that means is, whilst the Commonwealth Government is primarily entitled to legislate specific issues, those that are not expressly or impliedly vested under the Commonwealth remains within the legislation of the state government. In Family Law for example, the legislative power to determine whom a child should live with post-separation or declaration of parentage rests with the Commonwealth, whilst issues such as adoption, access to assisted conception procedures and surrogacy arrangements is vested in the states. This means that each state may pass legislation that may well overlap the Commonwealth legislation. Provisions in the Family Law Regulations 1984 (Cth) are established to create a link between the state and Commonwealth Family Law Act 1975 (FLA).

In circumstances where the law fails to recognise a person as a legal parent, it may nevertheless be possible for the Family Courts to make a parenting order in favour of such a person (section 64C of the FLA). Section 65C(c) of the FLA states that an applicant can be “any other person concerned with the care, welfare or development of the child”.

In Victoria, the Assisted Reproductive Treatment Act 2008 allows women and lesbian couples to access assisted conception procedures. Certain criteria must be met before a woman and her partner (if any) may access this procedure, for example Victorian Criminal (Police) Record Check and Child Protection Order check prior to commencing treatment. In other states such as New South Wales where Assisted Reproductive Technology Act 2007 applies, different legislation regulates access to assisted conception procedures.

The FLA in 2008 was amended to recognise both members of a lesbian partnership as parents of a child born of an assisted conception procedure (Section 60H FLA). This applies as long as the biological lesbian mother was married to, or is a de facto partner of the other intended lesbian co-mother, and the parties both consented to the carrying out of the procedure.

Meaning to say, in the scenario of a lesbian partnership who had a baby from an anonymous donor and raised this child at separation may apply for a parenting order under this Act – on the basis that the couple has been living together in a de facto relationship/marriage at the time of conception, and that both lesbian parties have consented in writing to the procedure/treatment being undertaken. Otherwise, the non-biological mother may not be legally considered to be the other parent of the child.

Section 13 of the Status of Children Act 1974 (Victoria) states that the man who produced the semen used in the procedure is presumed not to be the father of any child born as a result of the pregnancy, or has no legal status in respect of the chid, whether or not he is anonymous.

The scope of Section 60H of the FLA is limited to a child having two parents. The legislation approach proves to be challenging in more complex scenario, for example, where a lesbian couple and gay male couple choose to co-parent their child conceived through assisted conception procedure, as was in the case of Wilson v Roberts (2010). In this case, the Court found that the two women were the parents of the child, not either of the men.

In a scenario where a gay male couple have a child through ART, this child will have a birth mother (woman bearing the child) and two gay co-fathers. If the child is conceived through intercourse, the gay biological father will be the legal parent with the child’s birth mother. Whilst the birth mother will be the legal parent/mother of the child, the parenting presumption does not favour a gay co-father or gay couple, unless the birth mother allows the couple to adopt the child. Gay male couples also apply to the Family Court of Australia for a parenting order as ‘other people significant to the care, welfare and development’ of the child. Gay male couples who do not formalise their parental rights in this way will not have the legal right to make decisions in relation to their child.

It is also important to recognise that in States where commercial surrogacy is not permitted under State law, then parties who have entered into a commercial surrogacy arrangement (for example, overseas), will not be recognised as parents in the same way as couple who enter into 'altruistic' surrogacy arrangements can be.

Parenting orders covered under the FLA may include parental responsibility involving long-term decisions regarding the child’s welfare or where and with whom the child will live or spend time with. It is important to keep in mind that in considering all scenarios, the FLA makes the best interests of a child as a primary consideration in all decisions relating to children.