News

December 20 2020

Christmas Blues.

Although the carols suggest we should all be Merry and Bright right now, the simple truth is Christmas can be a very tough time of year for some.

For those that are separated from their family and children, or for those with relationship issues that just aren’t going away, Christmas tends to amplify problems and often leaves people feeling blue.

If you are unhappy, or worse worried about what may transpire during the upcoming Christmas and New Year period you should take steps to talk to someone now.

That someone could be a trusted friend or relative, a counsellor, or for technical advice, a Family Lawyer.

One of the roles of a Family Lawyer is to help you understand your options if you have separated or are thinking about separating. They will help you with strategies help with post separation parenting and financial arrangements.

At this time of year, it is common for people to make enquiry now to explore their options and then for hold off doing anything formally until the New Year. In other cases, sometimes people need to take action straight away.

The one thing that is for certain, is if you have serious doubts about your relationship or there are red flags such as violence or infidelity, you should take time to learn about your options.

So whether you want to remove yourself from an ugly relationship, protect your children from an unpleasant situation, or if you and your partner have just simply grown apart, Neilson Law can help you figure out what’s next.

Talk with Kassandra or Simon at Neilson Law now and head into Christmas with a clearer head. Kassandra and Simon are amongst Queensland’s most experienced lawyers and in times like these, experience counts.

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October 7 2020

Changing a Child’s Name after Separation.

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When parties marry it is common for one party to take the other’s surname. This is a longstanding tradition that identifies the parties as being married, and in doing so, ensures that when a child of the marriage is born all parties share the same surname and are readily identified as a family unit. It’s not a rule and it’s not necessary, but it is common.

So what happens to a child’s surname when a marriage breaks down and the party who changed their name at marriage decides to revert to their former, or another, name?

While that party can revert to using their former, or another name with nominal fuss, they cannot change their child’s surname simply to suit.

Where a child’s name is changed by common usage this is not legally enforceable and is likely to cause longer term issues, such as when enrolling the child in school or opening a bank account for the child. The problem is that the child will be legally known as the name that is registered on their birth certificate, regardless of what name they actually use.

If both parents consent to changing their child’s name, this can be easily done through the Births, Deaths and Marriages Registry. If the child is 12 years of age or older, they must also agree to the change unless an order is made by the Court. There are also limits on how many times a child’s name can be changed.

It is possible for one parent to change their child’s name without the consent of the other parent, if they have an order that grants them sole parental responsibility for that child. It is important to understand though that there is a presumption in the Family Law Act 1975 (Cth) that parents generally should have equal shared parental responsibility for their children. Therefore, orders giving one parent the power to make long term decisions for a child are not common.

If there is dispute and one parent wishes to make an application to the Court to force a name change, Section 60I of the Family Law Act 1975 (Cth) sensibly stipulates that the parties must first attend mediation and make a genuine effort to resolve their dispute prior to commencing Court proceedings.

If the parties are still unable to reach agreement following mediation, application can be made to the Federal Circuit Court of Australia to seek an Order permitting the child’s name be changed. The Court will only make such an order if it is considered the name change is in the child’s best interests.

For a confidential chat with one of our family law experts, give us a call or book in for a free initial consultation.

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July 28 2020

Have you met a Backyard Barrister?

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We find a lot of our clients turn to their loved ones and friends for advice on what to do during their separation. We hear lots of stories of what happened to a friend of a friend, or Bob that lives down the road.

Family Law matters are not all the same. The outcome depends on the specific circumstances of the case. Let your loved ones give you the support, while we give you the advice you need.

For advice specific to your family law matter, contact Neilson Law to arrange a free initial consultation with one of our experienced family lawyers.

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July 14 2020

Family Dispute Resolution Conferences.

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In simple terms, a Family Dispute Resolution (FDR) Conference is another name for mediation. In most cases, the Family Court of Australia and the Federal Circuit Court of Australia encourage and sometimes require attendance at a Family Dispute Resolution Conference to assist parties to negotiate a resolution outside of the Court system.

Importantly, a Family Dispute Resolution Conference offers a quicker and more cost-effective option than going to Court to seek resolution.

Section 60I of the Family Law Act 1975 (Cth) imposes an obligation on parties to make a genuine effort to resolve their dispute by attending a Family Dispute Resolution Conference before an application can be made to the Court with respect to parenting matters. The legislation stipulates that a Court must not hear an application unless the applicant files in the Court a ‘Section 60I certificate’ acknowledging they have made a genuine effort to resolve their dispute through Family Dispute Resolution.

As with all mediation, Family Dispute Resolution to a large extent relies on the co-operation of each party. Section 60I of the legislation acknowledges mediation is not always going to work. This, however, does not replace the requirement to attempt to resolve the dispute through Family Dispute Resolution prior to commencing Court proceedings. The Section 60I certificate can be awarded even if the other party chooses not to participate or co-operate in the process.

The Section 60I certificate is formal acknowledgement that you made a genuine effort to resolve the dispute through Family Dispute Resolution. That means that even if both parties participate but an agreement is not reached, a Section 60I certificate will still be issued.

That being said, there are always exceptions to every rule and the same applies to the Family Dispute Resolution process. Section 60I of the Family Law Act 1975 (Cth) allows for the requirement to attend Family Dispute Resolution prior to commencing court action be waived if the Court is satisfied there are reasonable grounds to believe:

There has been abuse of the child by one of the parties to the proceedings; or
There would be a risk of abuse of the child if there were to be a delay in applying for an order of the court; or
There has been family violence by one of the parties to the proceedings; or
There is a risk of family violence by one of the parties to the proceedings.

In addition to being a quicker and more cost effective option than the Court process, a major incentive for most people to attempt to resolve their dispute through Family Dispute Resolution is that you retain greater control and management over the process, and ultimately, the outcome. If your matter ends up in Court, you are immediately constrained by the Court’s procedures and processes and in doing this, you will inevitably lose some control. If your case proceeds to a trial in the Court, aside from the costs and the time it takes for your case to be heard (which sometimes takes years), it will be the Judge who makes the final decision. This could mean that neither party achieves the outcome they want.

Neilson Law can assist you with a tailor-made proposal to fit your circumstances. We can provide a proposal specific for you and your children’s needs securing a better chance of a successful outcome.

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April 12 2020

When can a child decide which parent to live with in Australia?

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Under Australian family law, children have a right to enjoy a meaningful relationship with both their parents, and to be protected from harm. A court is required to give greater weight to the consideration of the need to protect children from harm.

The Family Law Act 1975 is gender-neutral and does not make assumptions about parenting roles.

When a family court is making a decision about a child, the court will make an order that is in the best interests of the child.

When the parents of a child under the age of 18 separate, they both continue to share parental responsibility for the child.

This is called ‘Equal Shared Parental Responsibility’. Equal shared parental responsibility is not the same as equal time.

This means that both parents share the responsibility for making decisions about major long-term issues. It includes things like where a child will go to school, major health decisions, and religious observance.

This applies except when a court decides it is in the best interests of the child to remove parental responsibility from one or both parents.

When a relationship breaks down and there are children involved, children’s future living arrangements need to be decided.

Contrary to popular belief, a child’s age is not one of the determinants in deciding where the child will live when a court needs to hand down a decision in relation to parenting arrangements. Having said that, the older a child gets, the more weight is given to their wishes. It is very rare (and difficult) for older children to be forced to spend time with a parent that they flat out refuse to see.

Instead, a number of the key factors the court will assess in deciding the living arrangements are:

the child’s maturity
their level of understanding of the situation
whether their wishes about where to live are well informed
whether or not the child has been unduly influenced (usually by one or other of the parents, but also potentially by relatives, counsellors, etc.

The role of an independent children’s lawyer

In some situations, the court will appoint an Independent Children’s Lawyer to make an independent assessment of the child’s wishes and circumstances. This person will gather information from sources including teachers, doctors, psychologists, counsellors, police and child welfare authorities before deciding whether to interview the child or not.

This appointment will often be made in cases where:

there are allegations of physical, sexual or psychological child abuse
there is ongoing intractable conflict between the parents
the child is alienated from one or both parents
there are cultural or religious differences affecting the child
there is a proposal to separate siblings into different households or take a child overseas

Avoiding the cost and distress of court should be paramount in any family breakdown situation. An experienced legal professional can provide helpful advice on family dispute resolution options so that going to court becomes a last resort.

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April 7 2020

Covid-19 Update.

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We are here to help.

These are very difficult times. The corona virus COVID-19 has created stress and uncertainty in almost every aspect of our lives in a way which is simply unprecedented. The situation is changing daily, and it is almost impossible to turn our mind to anything but the safety and well-being of family members and the community as a whole.

Despite the uncertainly at the moment, we recognise many people are still required to deal with their family law matters, as it is so important that parenting arrangements, financial property settlements and other matters which arise following a separation are resolved as soon as possible. Sadly, we foresee the potential for many more issues to arise as a consequence of this pandemic.

We at Neilson Law are here to assist you with your family law matter, to take the stress and uncertainty away, and allow you to focus on the health of those close to you during these tumultuous times.

To ensure the safety of our staff, our office closed, however we will continue to operate remotely. We are currently assisting our clients via telephone, email, or video conferencing. While everything else in the world seems uncertain you can be assured, we will continue to provide the highest level of service as we help you resolve your family law matter as quickly as possible.

Our clients have had a lot of questions regarding COVID-19’s impact on their matter, so we have collated some tips to assist.

What about my children and COVID-19

When you are separated and co-parenting children, it is normally expected you will make important decisions regarding the children with the other parent. For example, if you want to keep the children home from school or day care then in most cases you should do so in consultation with the other parent.

Similarly, we suggest you contact the other parent and have a conversation regarding how you will deal with any potential isolations, quarantines or lockdowns that may be coming. Being prepared helps make everyone feel secure and safe.

Some of the matters that should be discussed include: –

Are you both comfortable with the children attending school?
Who will take care of the children if one of you or them becomes sick?
What will occur if school holidays are extended?
What support you can offer the children in this time?
With many public areas such as school and restaurants being closed, will changeover location need to be changed?

If there are Court Orders or a parenting plan and you consider it is in the children’s best interests to temporarily vary the parenting arrangements, you should obtain specific legal advice about your obligations which will be specific to the circumstance and the Parenting Plan or Orders in place.

Should I delay my matter?

Although the times are uncertain, that is no reason for you to delay in taking steps to move on with your life. There may be some benefit in taking control and removing yourself from situations of conflict which can be heightened due to stress and financial pressure. It is important to look after yourself and do what is right for you. If you have children, then an early resolution of parental disputes is normally of benefit to them as well.

My matter is already in Court, what will happen?

As you would expect, many of the Courts have implemented alternate arrangements for appearances. Currently most matters are being heard via video-link or telephone call. As a consequence, we have been experiencing a number of scheduling changes with our clients as the Court tries to service families electronically. We are happy to assist you with ascertaining what is required of you by the Court to ensure things run as smoothly as possible.

If you have any queries or simply want someone to take the pressure off when it comes to your matter, contact our office and have your initial appointment TODAY to alleviate some of the stress and uncertainty.

We offer free contactless initial consultations via Zoom, Skype or telephone, at your preference.

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March 31 2020

Are you a grandparent? Your legal rights explained.

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You may be a grandparent who is caring for or raising your grandchildren. You may be a grandparent who is concerned about your grandchild’s safety or well-being. Or you may have been stopped from seeing your grandchildren and would like to know what you can do about it.

What is Family Law?

The Family Law Act 1975 is the law that applies across Australia to separation and divorce, division of property and who children live and spend time with when their parents separate, whether or not their parents were married.

Grandparents can use the Family Law Act to apply to court for orders that their grandchildren live with or spend time with them. You can do this whether the parents of the children are together or separated.

The Family Law Act acknowledges the importance of children having a relationship with their grandparents. Grandparents are specifically mentioned in the Family Law Act as being able to apply to a court for orders to do with their grandchildren. However, it is important to be aware that this does not mean that grandparents (or indeed parents) have an automatic right to have contact with the children.

The Family Law Act makes it clear that the ‘best interests of the child’ is the main consideration when it comes to decisions about parenting. The focus of the Family Law Act is on the rights of children to know and be cared for by both parents and other people significant to their care, welfare and development, such as grandparents and other relatives.

How are arrangements for children made when their parents separate?

Most separating parents can agree about who the children will live with, spend time with and communicate with and about other aspects of the children’s lives (such as where they will go to school, holidays, medical treatment and so on). This can be done informally, without any documents and without going to court.

These decisions can also be put into a written agreement called a Parenting Plan that sets out the arrangements for the children. Or the parents can make the agreed arrangements for the children more formal by writing up what are called Consent Orders and registering them with the Family Court.

If parents cannot agree on arrangements for children between themselves, or with the help of a family dispute resolution service, they can apply to the Court (currently the Family Court, Federal Circuit Court or Local Court) for Parenting Orders. If you and the parents cannot agree on what contact you will have with the children you can also apply to the Court for Parenting Orders about your grandchildren.

Although you have a right to apply to the Court for Parenting Orders this does not mean that the Court will make an order in your favour. You should get legal advice before you do this.

Are you being stopped from seeing your grandchildren?

Sometimes grandparents are stopped from having a relationship with their grandchildren. This can happen where the relationship with your own child has broken down (but the parents’ relationship remains intact), or where the parents have separated and one parent refuses to let you have anything to do with your grandchildren. It can also happen if you have been the primary carer for your grandchildren and the children’s parent returns to take the children back into their care.

Grandparents do not have an automatic right to have a relationship with a grandchild. However, anyone who has an ongoing relationship with the child, or any other person who can show that they are concerned with the care, welfare or development of a child (including grandparents) may apply to the Court for Parenting Orders.

If your child and/or their partner is refusing to let you see or speak to your grandchild, you can take steps to try to change the situation.

Source: Family Court of Australia

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