legal services
Children
We’ve separated. Will I ever see my Children again?
Of course you will. Only in very rare circumstances will the Court prohibit all contact with a parent. It’s important to realise that the circumstances in which you see your Children after separation are likely to be different than during your relationship.
We’ve separated. How do we resolve disagreements about time with the Children?
The good news is that many separating couples, with a little help from mediators or lawyers, parties soon reach agreement on issues surrounding the time the Children spend with both parents and related issues such education, health and travel. We can provide you with a range of options from informal settlement, parenting plans, mediation and as a last resort only- litigation.
What does “Best interests” of the Children mean?
The phrase ‘best interests’ of children is widely used but commonly misunderstood. In very general terms the ‘Best Interests’ of the Child is the main (or paramount) consideration of the Court when making orders about a Child. In plain terms, where separated parents ask for different orders from the Court (for example if Dad wishes to send the Child to public school and mum wishes to send the Child to private school) the main question the Court will ask is: “Is it in the Child’s best interest to go to Public School or private school?” Many parents assume that because their proposal has the Child’s best interests at heart that their proposal is automatically in the Child’s best interests. In the case of private vs public school quoted above Dad may assume that because he went to public school and had a successful career there is no need to send the Child to private school. Mum may say that as the Child is not academically gifted and will benefit from lower student/teacher ratios, the Child should go to private school. Both parents have the Child’s best interests at heart but that does not mean the Court will necessarily agree. The Court could conclude that the parties cannot really afford private school and it is not in the Child’s best interests that the parents limited financial resources be spent on private education. Alternatively, the Court could conclude that because of learning difficulties or because of better opportunities it is in the Child’s best interests to attend private school.
How does the Family Court decide what is in a Child’s Best Interests?
In legal terms this involves a very detailed and at times complex assessment of the law. A significant part of the Court’s decision will involve an assessment of section 60CC (for married couples) of the Family Law Act 1975. Among the issues to be considered are:
- The benefit to the Child of having a meaningful relationship with both parents versus the need to protect the Child from physical or psychological harm from being subjected to or exposed to abuse, neglect or Family Violence.
- The views of the child.
- The nature of the child’s relationship with both parents and other persons in the Child’s life (including Grandparents).
- The Extent to which both parents have (or have failed) to be involved in the Child’s life.
- Whether each parent has fulfilled their obligations as a parent.
- The likely effect on the Child of any changes in the Child’s circumstances
- Practical issues re contact.
- The capacity of both parents to provide for the Child’s emotional and intellectual needs.
- Cultural issues.
- Family Violence.
Am I automatically entitled to Shared Care?
No. Whilst it is fair to say that shared care orders have significantly increased from say 10 years ago there is no automatic right to shared care. The key issue is whether shared care is in the Child’s best interests. Factors that increase the likelihood of shared care being ordered include:
- Whether shared care is ‘practicable’. Can separated parents demonstrate a “child focused” approach. In plain terms this means whether the parents can consistently put aside any personal issues between them so as to focus solely on the Child’s needs. Shared care can involve numerous pickups and drop offs, schooling, sporting activities, birthday parties, extra-curricular events and much more. To make shared care work both parents have to be seen to be willing and able to make it work.
- Whether shared care is ‘practical’. This may involve issues such as the age of the Child and her/his needs, parents work commitments, financial costs, suitable accommodation, schools, child care and family support.
- The absence of domestic violence.
- Neither parent represents a physical, or psychological risk of harm to the Child.
What does ‘Equal Shared Parental Responsibility’ mean?
Equal Shared Parental Responsibility (“ESPR”) has nothing to do with the amount of time each parent spends with a Child. However, ESPR has everything to do with who makes the major decisions in a Child’s life. Some of these decisions include:
- The Child’s name.
- The Child’s religion (if relevant).
- Who the Child lives with.
- Education.
- Medical issues.
If the presumption of ESPR applies then both parents must consult each other on these issues.
Do we have to go to court?
Absolutely not. Despite the emotional trauma of separation, many parents are able to agree on the future care and welfare of their children. Such fortunate parents deserve congratulation for their ability to put the interests of their children ahead of the hurt and emotional trauma that often inevitably follows a separation.
The team at Kavanagh Lawyers understand that many people, quite reasonably, are reluctant to engage in the legal process, particularly when they have successfully reached agreement. The legal process can be very expensive in both financial and emotional terms so it’s important to be cautious in your approach. In considering whether you need to do anything else you may wish to consider the following:
- Is your agreement verbal or in writing?
- Is your agreement binding in law?
- If your former partner breaches the agreement, what happens?
- Will communication between you and your former partner always be as good as it is now? What happens if you or your former partner marries or has a child with someone else?
- Will you be able to agree on future schools, medical treatment and holidays (Christmas, School holidays) interstate and overseas travel?
These issues are mentioned – so as to emphasise that whilst many separating couples start out with the best of intentions and goodwill, over the 18 years of your child’s life (and yours) many things can change. Ultimately, only you can assess if you and your partner will be likely to reach agreement in the future, without a formal binding and enforceable agreement
Consent Orders and Parenting Plans
The good news is that at a relatively low cost (particularly relative to the cost of litigation) and quite quickly, Kavanagh Lawyers can formalise the agreement between you and your former partner so that it is binding and enforceable in law.
Unlike Consent Orders, Parenting Plans cannot be enforced by the Family Court. However, the hard work and goodwill parents often spend formulating a Parenting Plan can relatively easily be filed as a binding and enforceable Consent Order.
And even better, your Consent Orders can be filed and pronounced final at the Family Court without you ever having to attend the Court.
Family Dispute Resolution
Sadly, in many cases, despite the goodwill and best intentions of one or both parents, agreement cannot be reached about the future care and welfare of their children. This does not mean you inevitably end up in the Family Court. First you and your partner may be required to attend mediation with a Family Dispute Resolution Practitioner (FDRP).
Litigation
Sometimes, despite the best efforts of both parents (or because of the inaction or lack of co-operation of one parent) the only option is to file an application at the Family Court.
The Family Court will make Orders concerning your child/ children on such matters as:
- Who has parental responsibility?
- Where children go to school?
- Medical issues.
- Who the children live with?
- The time the children spend with each parent.
- Whether parents are permitted to relocate children interstate or overseas.
Just because you file an application at the Court, it does not automatically follow that you end up at trial. It’s important to remember that:
- Only a relatively small percentage of matters proceed to trial.
- The Family Court is focused on encouraging parents to mediate and settle matters informally.
- The time from filing an application for final parenting orders to a decision after trial is likely to be a matter of years rather than months.
- Trials are very expensive in terms of emotional and financial cost.
Next Steps
Call Kavanagh Lawyers on (08) 6557 5888 to speak to our lawyers.
Child Relocation
What is a Child Relocation Order?
A Relocation Order is an order from the Family Court permitting one parent to change a child’s residence intra or inter state or overseas. Where both parents agree the Relocation Order may be obtained by consent without the need for litigation, which can be costly in emotional and financial terms.
Can a Child relocation order be made by consent?
Where both parents disagree about relocation then the matter is litigated at the Family Court. In our experience every effort should be made to mediate an agreement. In our experience parents can sometimes adopt a black and white approach too early in the process.
Very often (and particularly where intra or inter state relocation is proposed) agreement on generous contact arrangements (visits in WA and interstate and overseas, holiday visits, Skype and telephone contact (and agreement on who pays for such visits) for the parent who remains behind can result in an agreement.
The agreement may not be ideal- but it in many cases parents agree an arrangement that both can live with. Mediation also allows the parents to have ownership of the decision. If the matter is litigated both parents lose ownership of the decision. It’s worth bearing in mind that no lawyer can predict a court outcome with certainty.
Where litigation is the only option.
Sadly, in some case litigation is that only way to resolve the issue. In such cases, unless there is clear urgency, you can expect to wait 6 to 18 month for the matter to be determined.
The Law in relocation cases
Since the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 there have been significant changes to the determination of children’s issues. The Full Court of The Family Court in Taylor and Barker [2007] FamCA 1246 summarised the general approach to be taken in a relocation cases as follows:
- Consider and evaluate the factors identified in how a court determines what is in a child’s best interests (s 60CC).
- Consider whether it is in the child’s best interests to spend equal or substantial and significant time with each parent (s 65DAA) without regard to the relocation proposal.
- Evaluate the proposals of the parties. Any relocation proposal will have to be balanced against the option of “equal” or “substantial and significant” time, if either has been found to be in the child’s best interest, and will include a consideration of whether the proposal is “reasonably practicable”, if relocation is permitted.
Western Australian statistics on decided relocation cases
We detail below some statistics periodically released by the Family Court of Western Australia on location cases. We stress that each case must be considered on its own merits and these statistics show general trends only.
June 2013 to June 2014
Cases determined by a Judge
| Interstate | Intrastate | International | |
| NUMBER OF DECISIONS | 3 | 4 | 5 |
| PERMITTED | 2 | 1 | 4 |
| PERCENTAGE | 66.6% | 25% | 80% |
Cases determined by a Magistrate
| Interstate | Intrastate | International | |
| NUMBER OF DECISIONS | 5 | 4 | 0 decision’s |
| PERMITTED | 3 | 1 | NA |
| PERCENTAGE | 60% | 25% | NA |
July 2014 to March 2015
Cases determined by a Judge
| Interstate | Intrastate | International | |
| NUMBER OF DECISIONS | 5 | 3 | 4 |
| PERMITTED | 4 | 4 | 2 |
| PERCENTAGE | 80% | 75% | 50% |
Cases determined by a Magistrate
| Interstate | Intrastate | International | |
| NUMBER OF DECISIONS | 3 | 3 | 2 |
| PERMITTED | 2 | 3 | 1 |
| PERCENTAGE | 66.6% | 100% | 50% |
There are many factors involved in whether a relocation case is heard by a Magistrate or a Judge. In very general terms the length of a trial and whether the proposed relocation is international or inter-state are key factors. Long trials and international relocations are generally (though not necessarily always) heard by a Judge.
Most common reasons for seeking to relocate (not necessarily the reason the application succeeds)
- Financially advantageous
- Professionally advantageous;
- Academically advantageous;
- Family support;
- Spouse employment;
- Spouse location;
- “Homesick”.
Legal advice
Kavanagh Lawyers have a wealth of experience in relocation cases. Please contact us if we can be of assistance on (08) 6557 5888.
Non-Commercial Surrogacy
The desire to have a child is very powerful. For some couples surrogacy may be a solution.
However, surrogacy is a complex area of law and in Western Australia is governed by the Surrogacy Act 2008. The act sets out the legal requirements for non-commercial surrogacy arrangements that can be made between suitable persons.
Assessment requirements under the Surrogacy Act 2008 require parties to obtain independent legal help and advice so all parties are fully informed about the legal consequences of a surrogacy.
Kavanagh Family Lawyers can provide the required independent legal advice prior to surrogacy and assist you in making a surrogacy agreement including defining the agreement terms and obtaining the parenting orders.
Commercial Surrogacy
Commercial surrogacy is illegal in Western Australia and is a criminal offence under the Surrogacy Act 2008.
Next Steps
Call Kavanagh Lawyers on (08) 6557 5888 to speak to one of our lawyers.
Adoption
What could be more important in life than your child? At Kavanagh lawyers we have been particularly proud to assist our clients in formalising adoption. We know first hand how important it is for parents to have legal certainty for their child and how happy parents are when the legalities are finalised. Adoption can be complex area of Family Law. The number of adoption cases in WA is relatively small and the process can often be quite technical and frustrating.
Same sex couples and Adoption
Same sex couples can face particular challenges in the adoption process. We have considerable experience and success in this area of law and we are very proud to have so many same-sex couples as clients.
Misconduct restraining orders
What is a misconduct restraining order?
A misconduct restraining order (MRO) is an order of the court designed to stop someone behaving in a way that can be offensive or intimidating towards another. It can also prevent someone from causing damage to a person’s property or acting in a way that may lead to breeching of the peace.
A misconduct restraining order is only applicable to someone you are not in a family or domestic relationship with. If you are in a family or domestic relationship with the person you want a restraining order for, then you’ll require a violence restraining order.
Depending on the circumstances of each case, a misconduct restraining order may include conditions to stop a person doing whatever the court thinks is necessary.
Kavanagh Family Lawyers can help with misconduct restraining orders
Whether you need to apply for the misconduct restraining order and are seeking to be protected, have orders made against you, or are charged with breaching a MRO, Kavanagh Family Lawyers can help.
Next Steps
- Call Kavanagh Lawyers on (08) 6557 5888.
Divorce
Marriage break down and separation requires major life decisions in relation to your children, finances and property.
At Kavanagh Lawyers we understand that these decisions will be made at highly emotional, confusing and at times vulnerable stages in your life.
Our staff aims to provide calm, objective, expert legal advice to resolve your matter calmly, quickly and cost effectively.
The Difference Between ‘Divorce’ and ‘Property Settlement’
Divorce is effectively an administrative act, where 12 months after separation a person may apply for divorce. After the proper process has been completed a person may remarry.
However, “Divorce” does not resolve the financial relationship between you and your former spouse. In fact, despite divorce, you and your spouse may have an entitlement to a share of you former spouse’s assets and liabilities.
Important Issues When Considering Divorce
Important issues that arise after separation include but are not limited to such questions as:
- Do you need to be divorced?
- If so, when should you divorce? In particular, should a party apply for divorce before or after a property settlement?
- Is it preferable that a single or joint application for divorce be filed?
- Did the marriage breakdown in less than 2 years? If so, special conditions apply.
- Have the Children of the marriage been provided for?
- Have the parties been “separated under one roof”.
- The effect of divorce on your will?
As in all areas of Family Law, the facts of each case are unique and it is not possible to give general advice. It is prudent to obtain the advice of a lawyer practising exclusively in the area of Family Law.
Next Steps
- If we may be of assistance, call Kavanagh Lawyers on (08) 6557 5888.
De Facto Relationships
If you are in a “marriage like” relationship, then you may be in a “de facto” relationship. Identifying the legal processes when separation occurs in de facto relationships can sometimes be confusing.
When separating from a de facto partner, a common problem is how to divide the assets accumulated during the relationship. Kavanagh Lawyers can assist you in the event of a breakdown of your de facto relationship. We can also advise on steps to take before or during a de facto relationship to prevent future disputes in the event the relationship breaks down.
Changes to the Commonwealth Family Law Act and the WA Family Court Act in Western Australia has meant that couples in de facto relationships (including same sex couples) enjoy many of the rights and obligations of married couples- particularly in relation to children and property.
De facto law is generally more misunderstood by our clients and is more likely the subject of ‘urban myths’ than most areas of the Family Law system. Therefore, it is important that that you obtain the advice of a lawyer practising exclusively in the area of Family Law.
Separation and Division of Assets In De Facto Relationships
In order to start proceedings for property settlement, you must be able to show that:
- you have been in a de facto relationship for at least two years; or
- there is a child of the relationship under 18 years, and failure to make a property settlement order would cause a serious injustice to the person caring for the child
or:
- the person applying for the order made substantial financial and/ or non-financial contributions to the relationship and failure to make a property settlement order would cause serious injustice to that person
and:
- one or both of the parties to the application must be resident in Western Australia the day the application is made; or
- both parties have to have resided in Western Australia for one third of their relationship, or made substantial contributions to property in this State.
Any application for property settlement has to be made no later than 2 years after the date of your separation.
De facto law is an area of law that is regularly subject to changes in Federal and State laws. Before you begin proceedings, you should seek advice of a lawyer practising exclusively in the area of Family Law.
Next Steps
- Call Kavanagh Lawyers on (08) 6557 5888 to speak to one of our lawyers.
Same Sex Relationships
Same-sex couples have traditionally faced discrimination, in the lack of full legal recognition of their relationships. The family law process in Western Australia now enables most couples in same sex relationships to access an equivalent range of solutions in the Family Court with regard to financial matters to those presently available to married and de facto couples.
Kavanagh Lawyers is fortunate to have many same sex clients and their lawyers are highly experienced in dealing with the particular challenges that same-sex couples face with regard to family law, and legal recognition of their relationships. They will assist people who are experiencing the breakdown of their relationship by providing calm, objective, expert legal advice to resolve the matter quickly and cost effectively.
Recent legislative changes have effectively meant that in most areas of law same sex couples have the same rights and obligations as straight de facto couples.
“De facto” relationships are generally defined as “marriage like” relationships.
The lawyers at Kavanagh Lawyers have found that de facto law is generally more misunderstood by clients and is more likely the subject of ‘urban myths’ than most areas of the Family Law system. Therefore, it is important that that you obtain the advice of a lawyer practising exclusively in the area of Family Law.
Separation and Division of Assets In Same Sex Relationships
In order to start proceedings for property settlement, you must be able to show that:
- you have been in a de facto relationship for at least two years; or
- there is a child of the relationship under 18 years, and failure to make a property settlement order would cause a serious injustice to the person caring for the child
or:
- the person applying for the order made substantial financial and/ or non-financial contributions to the relationship and failure to make a property settlement order would cause serious injustice to that person
and:
- one or both of the parties to the application must be resident in Western Australia the day the application is made; or
- both parties have to have resided in Western Australia for one third of their relationship, or made substantial contributions to property in this State.
Any application for property settlement has to be made no later than 2 years after the date of your separation.
De facto law is an area of law that is subject to regular changes by Federal and State laws. Before you begin proceedings, you should seek advice of a lawyer practising exclusively in the area of Family Law.
Next Steps
- Call Kavanagh Lawyers on (08) 6557 5888.
Child Support and Custody
[sixcol_four]Separation and divorce can be a confusing and traumatic time for both parents and their children, especially if the children see their parents struggle to resolve issues about where the children should live and how much time they should spend with each parent. The staff at Kavanagh Lawyers will provide prompt and professional legal advice on child support and custody, to help separated or divorced parents reach an agreement quickly and protect the interests of the children.
Family Law and Children
At Kavanagh Lawyers, we realise that few, if any things in life are more important to you, than your children. We also know that after separation parents are often vulnerable, emotionally traumatised and are concerned for the future. We know that you may be at times overwhelmed by events.
Our team at Kavanagh Lawyers also knows that separation is often a difficult time for children, especially if they see parents struggle to resolve issues.
How Kavanagh Lawyers Can Help with Child Support and Custody
To provide you with prompt and professional initial advice about your rights and obligations as a parent. They don’t promise that you’ll like their advice or that they’ll tell you what you want to hear. Kavanagh Lawyers takes its professional obligation to “tell it like it is” and to be frank and honest very seriously.
The lawyers at Kavanagh Lawyers will present your case at Court to the best of their ability, if necessary. In our experience, very few clients, if any, enjoy litigation or achieve their objectives via litigation. That is not to say that litigation is not necessary. In some cases litigation is not only necessary – it is the only and best option. However, such cases are rare.
Kavanagh Lawyers can advise you as to what avenues you can take to reach a resolution to your dispute.
The ‘Best Interests’ Of Children
The ‘best interests’ of children is widely known but rarely understood. In law, the phrase has a very specific and complex meaning. Recent changes in federal law have resulted in very substantive changes in the rights and obligations of parents particularly in relation to:
- Who has responsibility for the big decisions in you children’s lives – for example such issues as where your children attend school; who decides on medical care; what religion or faith, if any, your children are raised in and whether your children may travel or relocate interstate or overseas;
- Whether children live with one or both parents; and
- The time children spend with significant people in their lives such as Grandparents and cousins.
If you agree on children’s issues- do you need to do anything else?
Parenting and Consent Orders
Despite the emotional trauma of separation, many parents are able to agree on the future care and welfare of their children. Such fortunate parents deserve congratulation for their ability to put the interests of their children ahead of the hurt and emotional trauma that often inevitably follows a separation.
The team at Kavanagh Lawyers understand that many people, quite reasonably, are reluctant to engage in the legal process, particularly when they have successfully reached agreement. The legal process can be very expensive in both financial and emotional terms so it’s important to be cautious in your approach. In considering whether you need to do anything else you may wish to consider the following:
- Is your agreement verbal or in writing?
- Is your agreement binding in law?
- If your former partner breaches the agreement, what happens?
- Will communication between you and your former partner always be as good as it is now? What happens if you or your former partner marries or has a child with someone else?
- Will you be able to agree on future schools, medical treatment and holidays (Christmas, School holidays) interstate and overseas travel?
These issues are mentioned – so as to emphasise that whilst many separating couples start out with the best of intentions and goodwill, over the 18 years of your child’s life (and yours) many things can change. Ultimately, only you can assess if you and your partner will be likely to reach agreement in the future, without a formal binding and enforceable agreement
Consent Orders and Parenting Plans
The good news is that at relatively low cost (particularly relative to the cost of litigation) and quite quickly, Kavangh Lawyers can formalise the agreement between you and your former partner so that it is binding and enforceable in law.
Unlike Consent Orders, Parenting Plans cannot be enforced by the Family Court. However, the hard work and goodwill parents often spend formulating a Parenting Plan can relatively easily be filed as a binding and enforceable Consent Order.
And even better, your Consent Orders can be filed and pronounced final at the Family Court without you ever having to attend the Court.
Family Dispute Resolution
Sadly, in many cases, despite the goodwill and best intentions of one or both parents, agreement cannot be reached about the future care and welfare of their children. This does not mean you inevitably end up in the Family Court. First you and your partner may be required to attend mediation with a Family Dispute Resolution Practitioner (FDRP).
Litigation
Sometimes, despite the best efforts of both parents (or because of the inaction or lack of co-operation of one parent) the only option is to file an application at the Family Court.
The Family Court will make Orders concerning your child/ children on such matters as:
- Who has parental responsibility
- Where children go to school
- Medical issues
- Who the children live with
- The time the children spend with each parent
- Whether parents are permitted to relocate children interstate or overseas
Just because you file an application at the Court, it does not automatically follow that you end up at trial. It’s important to remember that:
- Only a relatively small percentage of matters proceed to trial
- The Family Court is focused on encouraging parents to mediate and settle matters informally.
- The time from filing an application for final parenting orders to a decision after trial is likely to be a matter of years rather than months.
- Trials are very expensive in terms of emotional and financial cost.
Next Steps
- Call Kavanagh Lawyers on (08) 6557 5888 to speak to our lawyers.
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Spousal Maintenance
The financial support that one party to a marriage or de facto relationship may be required to continue to provide to the other party, after their marriage or de facto relationship has broken down is known as Spousal Maintenance. A consequence of being married is the entitlement of parties to seek ongoing financial support from each other. Western Australian law now extends these rights to parties in a de facto relationship including same sex couples.
Kavanagh Lawyers can provide prompt and professional legal advice to help separated or divorced couples deal with the issue of spousal maintenance.
Potentially, each party to a marriage or de facto relationship may be liable to pay spousal maintenance after separation.
Why do I have to pay Spousal Maintenance?
The Family Court has the power to order one party to pay spousal maintenance to the other party if and only if –
- one person is unable to support himself or herself adequately; and
- the other person is reasonably able to provide such support.
The obligation to pay spousal maintenance survives divorce and specific time limits apply. Spousal maintenance obligations are additional to child support obligations. However, this is a complex area of law and the facts of your case will be unique to you. It is important to obtain professional advice as quickly as possible.
Next Steps
- Call Kavanagh Lawyers on (08) 6557 5888 and speak to one of our lawyers.