Your Questions Answered
On these page we will list questions and answers that may be of help to you. We have made them up so to speak from a conglomerate of questions that we have been asked often over the years in our over 20 years of combined experience in family law.But don’t be shy. Ring us or email us and ask us your question. Be reassured that we will never use your particular question on this page in any way.
Q. I have heard about shared parenting? Does this mean that I have the right to have the kids live with me half of the time?
A. The new shared parenting laws that came in in July 2006 do NOT mean that the child must live half time with each parent. However the recent case of Goode and Goode sets out how the Court must approach shared parenting. Go to the Children’s page on the toolbar to the left and it is all set out there, including a link to the entire judgement if you are feeling brave, and the relevant section of th Act.
Q. What do I do about Holidays? I just seem to get over one lot and it is time for the kids to go again. It is wearing me out!
A. At this time of year Children are sharing holidays between their parents. Remember to work together as best you can to minimize any stress the kids may feel at changeover times. As the children pile into your car and begin to excitedly tell you all of the things they did with the other parent, try not to react negatively.
Remember that each parent has a different style of parenting, That is Ok. Even if the other parent did something dumb and dangerous with the children, it is not OK to fly off the handle at the kids. It is not their fault. Hold your tongue if you can’t be enthusiastic about what they did and take it up with the other parent later when you have cooled down and where the kids can’t hear. Work on your reaction because that’s the only thing you can change.
Q. I have never had to worry about Family Law issues before, so I have no idea where to go for a comprehensive look at the way the system works. I want to learn more before I go near the lawyers.
A. Good idea! I think the Family Court web site is the best place to start, It even has a page for children! Go to the Family Court Web site
Q: How can I keep my costs down in Family Court proceedings?
A: In our experience there are a number of ways that a client can keep their costs down. The main thing is to remember that your matter will be time costed, so the less time your lawyer has to spend the cheaper it is for you. At Brisbane Family Lawyers, we offer a number of options for our clients that enable them to keep their costs down. For instance, where a client has access to the internet, we encourage them to complete the simpler Family Court and Federal Magistrate’s Court forms themselves. This saves them money as all we have to do is print the form and file it. This means that they are only paying for our expertise where it is needed, such as drafting more complicated documents and letters and attending mediation or Court.
Q: My spouse and I have just separated. Where can I get general information? I don’t necessarily think it will end up in Court. I just want to know where I stand.
A: In our experience there are a number of ways that a client can keep their costs down. The main thing is to remember that your matter will be time costed, so the less time your lawyer has to spend the cheaper it is for you. At Brisbane Family Lawyers, we offer a number of options for our clients that enable them to keep their costs down. For instance, where a client has access to the internet, we encourage them to complete the simpler Family Court and Federal Magistrate’s Court forms themselves. This saves them money as all we have to do is print the form and file it. This means that they are only paying for our expertise where it is needed, such as drafting more complicated documents and letters and attending mediation or Court. Another way is to keep calls short and to the point, and have questions that you want to know the answer to, written out when you visit or email your queries to us. Our philosophy is that we are partners with our clients in negotiating.
Q: My 19 year old says I should pay maintenance. How can this be?
A: ADULT CHILD MAINTENANCE The Child Support Agency handles the collection of maintenance for children up to the age of 18 years or until they finish Grade 12 whichever is the later. However, many people over the age of 18 continue onto University and continue to be supported by their parents during their tertiary education. The Family Court has power to order parents to contribute to the support of children over the age of 18 years if they are continuing in University Education. I often have enquiries from people about the responsibilities of parents in this regard. First off, it is a difficult question as to whether or not it is the child who has the right to claim maintenance or the parent with whom the child lives. Both parents should contribute to the child support but Family Court cases recently have developed strongly along the lines that a child should also develop some self sufficiency. The Court in a number of cases has made it clear that it is not reasonable.
Q: What is a Binding Financial Agreement?
A: BINDING FINANCIAL AGREEMENTS Many of you will be aware that there has been new Legislation introduced to enable parties to enter into Binding Financial Agreements (previously known as “Pre-Nuptial Agreements”) that will continue to remain in force after the parties are married. Prior to the amendments that came around Christmas 2000, people were able to make Pre-Nuptial Agreements about their property, but if they married, the Court could deal with the property at it’s discretion anyway and not necessarily be bound by the Agreement. Under the new rules, people can make a Binding Financial Agreement either before marriage, during marriage, or after separation and these Agreements are then binding on the Family Court. Of course for Agreements to be binding there are certain rules that need to be followed and one is that each party needs to receive independent legal advice as well as the fact that the agreements need to be drafted in accordance with the Act. Call us for more information.
Q: CHRISTMAS HOLIDAY CONTACT! How do others handle this?
A: Christmas Holidays are a time when many people have concerns about arranging contact with their children and the main resident parent. For the post part, I am happy to say, people are able to work out commonsense ways to share both the holidays and the actual Christmas period. Sometimes, however, people get into dispute over these issues. For people who have Court Orders, and who have already survived one Christmas holiday period, things will generally fall into place. For others, though, especially if it is the first Christmas since separation and there are no Court Orders, it seems difficult to know how to deal with everybody’s wishes. I am writing this column for people in that situation. The “biggy” is how to share Christmas Day. Some separated couples would rather avoid seeing each other on Christmas Day if at all possible. For them, an arrangement that sees the children with one of the parents on Christmas Eve and the other parent on
Q: I have a really grumpy Husband. Can we still have mediation?
A: You would be amazed what mediation can do It is absolutely the way of the future. Of course if there is domestic violence where one of you is at risk of being bullied, or where there is an an imbalance of power. Otherwise, go with your feelings and get your lawyers to set up mediation asap.
Q: How is Superannuation treated in Property law?
A: Since the 28th of December 2002, the Family Law Legislation Amendment (Superannuation) Act 2001 produced a major change in Property Law. It now provides that Superannuation is to be treated as property under the Family Law Act. Yes, that now means that in it is included in the pool of assets, and therefore can be split.
Q: Why is Superannuation considered property?
A: The reason Superannuation was recognised as a significant matrimonial asset was because the monetary contribution to Super meant a loss of available money during the marriage and therefore it did involve an indirect contribution by the other spouse to the building up of the asset, even if it is an employer created asset. Also, the primary purpose of Super is the provision of financial security for both spouses.
Q: So what does this mean?
A: It means that separating couples are now allowed to value their superannuation. The new Superannuation Splitting laws does not convert it into a cash asset – it is still subject to the usual superannuation laws (for example, you still can not get a hold of it until retirement ages are reached).
Q: How can I split my superannuation?
A: There are 3 options for splitting superannuation. You can either:
- Enter into a Formal Agreement,
- Seek Consent Orders, or
- Seek a Court Order (last resort).
Q: What steps do i need to take to split my superannuation?
A: There are 2 main steps you need to go through. Firstly, you need to get information to value the superannuation and this can be done by submitting 2 forms –
- Form 6 Declaration and
- Superannuation Information Request Form. The second step involves deciding on the method to split the superannuation (either 1 of the 3 methods dealt with in the previous question). We do encourage that you enter into a formal agreement with your partner to avoid litigation. Once again, its a lot cheaper and less stress involved.
If you reach an agreement with your former partner, then a Form 11 Application for Consent Orders can be filed in the Family Court accompanied by the Consent Order recording the agreement. Best of all, you do not have to attend Court.
My partner has an existing custody order in place dated 2006. The mother has full custody and access is to be agreed between the parties.
We need the orders to be changed as two of the children now live with us (15 and 18) but there is still a girl (8) who lives with the mother but we cannot see her as the mother does not allow it. Long story.
I want to lodge an initial application with the Family Law Court Brisbane. Do I also need to lodge an affidavit?
Hi Gabrielle, Yes you will need to lodge an affidavit. You may be better to file in the Federal Magistrate’s Court also, as the Family Court tends to hear only the really complicated cases these days. I am worried that your partner’s two eldest children are not seeing their sister, and that she is not seeing them OR her Father. I think the Court will be supportive of promoting time between the children most of all. Good luck with your application.
Kind regards Lynette