There are two main types of violence restraining orders in Western Australia: Family Violence Restraining Orders (FVRO) and Violence Restraining Orders (VRO). Both require an application to your local Magistrates Court or possibly the Children’s Court.

You should apply for an FVRO if you require protection from a person who you are or were in a family relationship with, for example a former husband/wife, de-facto partner, or someone you are related to.

You should apply for a VRO if you require protection from someone with whom you are not in a family relationship, for example a work colleague.

You do not need to have experienced physical violence or the threat of physical violence to apply for a VRO or FVRO. A VRO/FVRO can be made on the basis of other sorts of behaviour that coerce or control you or cause you to be fearful.

When you apply, you can ask the Court for an interim FVRO, which is a temporary order that is in place while you go through the process of obtaining a final FVRO.

The process usually constitutes:

  1. An application and affidavit in support;
  2. A court hearing for the interim VRO if you apply for one (at which the other party will not be present);
  3. If you are granted a VRO, the police will then serve it on the other party (the person bound)
  4. If the other party files an objection to the VRO, there will likely be a ‘mention’ hearing, followed by a final hearing. The interim VRO remains in place until the final order hearing.

If the other party breaches either the interim of final VRO, it is a criminal offence.

If you would like further information about applying for a VRO, please contact Kavanagh Lawyers on 6557 5888 or email reception@kavlaw.com.au.

 

Posted in News, Restraining Orders, Violence Restraining Orders

When most people think of family violence, they envisage physical harm being inflicted on another person. Under the Family Law Act and the Restraining Orders Act, the definition of family violence is much more expansive and extends to things as emotional abuse, financial abuse, stalking and derogatory remarks. Such definitions focus not only on violence but also the threat of behaviour that coerces, controls, or causes fear.

One of the most common consequences of family violence is low self-esteem and a desire not to be seen as a “victim”. It can be very difficult to reach out. If you are experiencing family violence please seek help. Maybe it’s a friend to start with. In time you may have the strength to contact one of the many agencies that are there to help.

When is family violence relevant?

Family violence in relation to adults is generally dealt with in your local Magistrates Court and the Family Court.

FVROs

Applications for FVROs should be filed at your nearest Magistrates Court. An FVRO will be issued where the Court is satisfied that family violence has occurred or there are reasonable grounds to believe that family violence may occur. The person protected by the FVRO is referred to as the person protected, and the person restrained is referred to as the person bound.

The Court will usually make an interim FVRO while you await the final order hearing (like a trial) for a final FVRO which will generally last for two years.

Any order of the Family Court that is inconsistent with an FVRO will override the terms of the FVRO in relation to times spent with a child. This means that if a child is protected by a FVRO but is ordered by the Family Court to spend time with the person bound, them spending such time with the child will not constitute a breach of the FVRO.

Children’s matters in the Family Court

The Family Court will take into consideration family violence in determining what is in the best interests of the child. The Court will ultimately aim to prevent the child from being subjected or exposed to family violence in making orders in family law proceedings.

Usually, a rebuttable presumption that equal shared parental responsibility is in the best interests of the child applies in such proceedings. This means that the Court will assume, absent evidence to the contrary, that it is in a child’s best interests for both parents to be equally involved in making long-term decisions regarding the child.

However, the presumption does not apply where there are reasonable grounds to believe that a parent has engaged in family violence. In such circumstances, the Court may no longer assume that equal shared parental responsibility is in the best interests of the children. The Court may order that the other parent have sole parental responsibility for the child. The perpetrator will no longer be entitled to be involved in making long-term decisions regarding the child, such as where they go to school or where the child lives.

If you wish to obtain legal advice in relation to children’s matters, please contact Kavanagh Lawyers on 6557 5888 or email reception@kavlaw.com.au.

Posted in News, Restraining Orders, Violence Restraining Orders

The prospect of another year in an unhappy or difficult relationship can be very unsettling.

We know you’d prefer not to be dealing with lawyers, but 1 hour’s professional advice is money well spent. In most cases your questions will be answered in an hour or less. Then you can make informed decisions.

January and February are the months when many people who have not separated, seek legal advice about where they stand if they decide to separate. One of the pleasures of being a Family lawyer is seeing the relief on a client’s face. After years of worrying, many clients are relieved when they get independent advice. Here are a few pointers to get you through the holiday season. This is general information only and should not be treated as legal advice. Every case is different, and you should consult a lawyer before you make any important decisions.

Will I ever see my kids again?

Only very rarely does a parent lose all contact with their children after separation. While you may not see your kids as frequently as you did prior to separation, you will likely reach an agreement that both parties can live with without litigation.

Will I be able to financially support myself?

If there are assets to be divided- regardless of whose name, the assets are in – then you are likely to obtain significant financial support. While this can be a complex area of law, you have many options including:

  • Child support
  • Spousal maintenance
  • Property settlement, either by way of agreement between the parties and approved by the Court, or a Court imposed settlement based on the true financial position of the parties

Do I have to go to Court?

Often, parties are able to negotiate a settlement between themselves and file what are known as consent orders at the Family Court, meaning you never have to see the inside of the courtroom. Legal assistance is recommended- but not essential in drafting orders.

The first port of call should always be mediation- informal or formal. There are many options available to suit your timeline and budget.

Seeing a lawyer doesn’t mean you’re going to Court. In fact, a good lawyer can bridge the lack of trust between you and your former partner, leading to a quicker resolution without litigation.

The process usually looks a little bit like this:

  • basic advice about your legal rights and responsibilities
  • encouraging you and the other party to reach a fair agreement where you or your lawyer drafts and files the necessary paperwork to be filed at the court
  • mediation
  • legal letters to identify issues and make settlement offers
  • negotiation
  • as a last resort, litigation

If you would like some more advice regarding separation and its consequences, please contact Kavanagh Lawyers to arrange an initial appointment on 6557 5888.

Posted in Divorce and Separation, News

Any party in a relationship who has a legal interest (e.g. your name is on the Certificate of Title for the property) or equitable interest (e.g. your name is not on the Certificate of Title, but you have made contributions towards the property) in land or and/or a house may lodge a caveat.

A caveat is shown on the Certificate of Title for the property. Depending on the type of caveat lodged, this may delay or prevent any dealings with the property

Caveats are often used where one party is worried that their former partner will sell or otherwise deal with the property against their interests. In family law, caveats are generally used where one party legally owns the property, but the other has an interest in it by virtue of contributions they made to the mortgage, for example.

Caveats can be complex things. Whilst lodging a caveat may seem like the obvious thing to do in a separation- caution should be exercised and it is best that you seek legal advice before lodgement. If you are concerned about your former partner dealing with your property against your interests or would like some general advice about caveats in the family law system, please call 6557 5888 to arrange an appointment with one of our solicitors.

Posted in News, Property

There are two main ways to get child support:

  1. You can enter into a binding child support agreement with your former partner; or
  2. You can get a child support assessment from the Department of Human Services.

Binding Child Support Agreements

Much like Binding Financial Agreements, Binding Child Support Agreements (BCSA) are private agreements between you and your former partner.

While the payment can be any amount, a written agreement needs to be drawn up. Both parties need to get independent legal advice about the proposed agreement. The BCSA must also be registered with the Department of Human Services. In order to be legally binding, it must also be filed at the Family Court.

Child Support Assessments

You can apply for a child support assessment online. The Department of Human Services will decide how much child support you should receive. Their assessment depends on a number of factors, including your combined income and the extent to which you have care of your child.

If you would like more information about your options, please contact Kavanagh Lawyers on 6557 5888 or email reception@kavlaw.com.au to arrange an initial appointment.

Posted in Child Support and Custody, News

The short answer is no – the Family Court will not grant a divorce where you and your ex-partner have been separated for less than 12 months.

The long answer is a bit more complicated. While you may have to wait 12 months to apply for divorce, you don’t have to wait that long to sort everything else out. You are able to settle children, property and financial matters as soon as you separate.

What if we get back together?

You are able to reconcile with your partner for up to 3 months before having to restart the 12 month separation period.

What if I’m not sure about how long we’ve been separated, or when we separated?

Separation can be a difficult and complicated process, and every situation is different. You may choose to separate under one roof, decide not to tell anyone until after some time, or have different accounts of when separation occurred. In these situations, you should seek legal advice to clarify your position.

Please note that the above information does not constitute legal advice and every case turns on its own unique facts. If you would like to obtain legal advice about separating or organising a property settlement and making arrangements for your children prior to divorce, please contact Kavanagh Lawyers on 08 6557 5888 or email reception@kavlaw.com.au.

 

Posted in News

There are a range of options available to separated parents seeking to formalise arrangements concerning their children. Figuring out which option is best for you begins with understanding the differences between them.

  Parenting Plans Parenting Orders Consent Orders
Does it need to be in writing? Y Y Y
Is joint agreement required? Y N Y
Do I need Court approval? N Y Y
Are there any fees involved? N Y Y
Is it legally enforceable? N Y Y

 

A parenting plan is an informal agreement between the parties. Parenting plans are not enforceable.

A parenting order is made by consent or by order of the Court. Where the parties are in agreement, they are able to jointly file their proposed orders (consent orders) at Court for approval. Where the parties are not in agreement, each party is able to propose orders and the Court will ultimately determine final parenting orders.

So, which is best for me?

Parenting plans are good, but their lack of enforceability makes them problematic. You may spend months agreeing on a parenting plan with your former partner but if either party breaches the plan, it cannot be enforced. Parenting orders (whether by consent or not) have the benefit of certainty and enforceability.

Please note that the above information does not constitute legal advice and every case turns on its own unique facts. If you would like to obtain legal advice in relation parenting orders and parenting plans, please contact Kavanagh Lawyers on 08 6557 5888 or email reception@kavlaw.com.au.

Posted in News

The Family Law Amendment (WA De Facto Superannuation Splitting & Bankruptcy) Bill 2019 was introduced to the House of Representatives on 27 November 2019.

If this bill is successful, de facto couples in Western Australia will be able to split their superannuation as part of a property settlement, bringing WA in line with the rest of the country. It is not yet known if the amendment will be applied retrospectively and/ or to existing applications. Our best assessment is that it will only apply to applications filed after the amendment comes into effect.

The bill will also allow the Family Court of Western Australia to hear family law and bankruptcy matters for de facto couples concurrently.

Posted in News

What you need to know about breaching and complying with parenting orders

Parenting orders are legally binding and carry serious legal consequences for breach. Where the Court finds that a party has breached (‘contravened’) parenting orders, they may order:

  • Payment of the other party’s legal costs
  • Attendance at a parenting course
  • Payment of a fine
  • A good behaviour bond
  • In extreme circumstances, imprisonment

The Court also has the power to vary existing parenting orders and order make-up time to compensate for any lost time as a result of the contravention. If the party has contravened parenting orders by failing to return the child, then the Court may also issue a Recovery Order.

However, a breach of parenting orders may not always amount to contravention.

Reasonable excuse

The Court may be prepared to excuse a contravention where the party in breach has a ‘reasonable excuse’ for failing to comply with the orders. While a ‘reasonable excuse’ sounds straightforward, it can be difficult to prove.

It is important to note that even if the Court accepts that there is a reasonable excuse, the Court is still able to vary parenting orders or make any other order it considers appropriate in the circumstances.

The importance of compliance

Where there are parenting orders in place, you must make reasonable attempts to comply with those orders. Even where contravention proceedings are not initiated, breaches can still be recorded and used in later proceedings.

Of course, in practise, compliance isn’t always that simple. If you would like more information in relation to breaching, varying, or complying with parenting orders, please contact Kavanagh Lawyers on 08 6557 5888 to arrange an initial appointment.

Posted in News