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Grandparents and child access

The Family Law Act states that children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development including grandparents. Since the grandchildren obviously aren’t in a position to enforce that right and if the parents are not facilitating the contact with the grandparents, it will be up to the grandparent to take action to do so. But don’t just sit there and hope for the best- the longer you leave it, the weaker your case gets.

The first step is to attempt to resolve the matter by way of Mediation with a qualified Family Dispute Resolution mediator. If the Mediation is not successful, then unfortunately you may have little option but to commence Family Court proceedings.

To succeed in the Family Court, the grandparents must satisfy the court that they are significant adults in the lives of the grandchildren and that such time would be beneficial. The court will consider:

  1. The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from any grandparent with whom they have been living.
  2. The capacity of any other person, including any grandparent, to provide for the needs of the child, including emotional and intellectual needs.

In many cases well-meaning grandparents who make such an application to the courts come up against vigorous opposition from the parents of the children in question. There are many reasons for such opposition but alcohol, abuse, drug addiction, family & domestic violence and poor relations between the grandparents and their own children (the parents of the grandchildren) are often at least partially to blame.

If it can be shown that the grandparents have historically been involved in the life of the grand-children, the Court will be inclined to allow the grandparent to continue this relationship despite the breakdown of the parent’s relationship and their subsequent refusal to let the grandchildren spend time with the grandparents.

If you’re not sure what your options are, don’t rely on Heather down the road for advice - make sure you see a lawyer who actually knows what they’re talking about. Little birdies generally cause more problems than not, so set up your case properly from the beginning.

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4561 Hits

Facebook and Twitter and…Court - OH NO!

Facebook and Twitter and…Court - OH NO!

When the Facebook craze was in full effect I told myself I would never get an account. The way I saw it was why would I want to be “friends” with someone who I knew in grade 2, where our interaction was solely playing Lego together, and now all of a sudden some 20 years later he thinks that we’re old mates.

Don’t get me wrong, I have a Facebook account. I primarily use it to keep in touch with family and friends overseas and to share my frustration or delight in anything that happens in sport i.e. my New England Patriots winning the Super Bowl this year – Go Pats!

However I’m often both shocked and appalled at the things people post on Facebook these days. It’s incredible what happens when some people get behind a keyboard. While I understand Facebook and other social media outlets are platforms for people to opine about their thoughts, ideas, views and even what they ate for dinner, it is important to be mindful of what you post on the internet, including and especially social media sites.

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6151 Hits

Mediate! How? I don’t trust the Bastard!!!

Mediate! How? I don’t trust the Bastard!!!

Mediation is not about trust but more about understanding betrayal.

Relationships, whether it be in our personal life or our employment and business activities; when it all goes south, how do we approach resolution when we are feeling so hurt and vengeful? How can we get what we consider to be a just result in the circumstances?

Emotional stress erodes our being until we self-doubt and our self-respect seems to be travelling on a different bus. Some of us urge Karma to find the solution. Some bargain with God and/or a less pure entity, but at the end of the day we want it over: EXCISED FROM OUR LIVES; BUT HOW?

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8727 Hits

Unfair dismissal – Finding your way through the maze!

There is a safety net for small business of less than 15 employees, where if they conform to special rules they can avoid a potential unfair dismissal claim. Most claims are covered by the federal Fairwork Act and therefore are determined by the Fair Work Commission. However there are exceptions such as unincorporated businesses and other entities that may have their claims determined under state law and in the Western Australian Industrial Relations Commission. It is important to find out which forum to file your claim as each have their own specific rules. For example, any potential unfair dismissal application filed in the Fairwork Commission must be filed within 21 days of the dismissal. If the application is to the WA Industrial Relations Commission then the time limit is 28 days.

Other rules need to be considered. For example for a federal unfair dismissal claim you must have worked with your employer for at least 6 months if that employer has more than 15 employees or 12 months if less than 15 employees. You must earn less than $133,000 per annum (as of 1 July 2014) or be covered by an award or workplace agreement.

If you feel that you have been dismissed unfairly or are a business and have had an unfair dismissal or any other claim being made against you then like a marriage separation, you should obtain legal advice to ensure the separation is fair for all concerned.

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11078 Hits

Love is Patient - Love is Kind - But are we?

In relation to same-sex marriage, we continue to lag behind the rest of the world. Behind 20 countries in fact. Take the United States for example. Out of 50 States, 37 have legalised same-sex marriage. That’s 74%of the whole country, including Alabama. I’m talking about a Bible Belt State that continues to recognise marriages between first cousins, and Australia’s worried about the gays? What are we afraid of? That a union between Mr & Mr, or Mrs & Mrs, will destroy the sanctity of marriage? Given the current divorce rate, I really don’t think there’s any danger of that happening.  

Despite our reluctance to join the rest of the world, there has been some fairly significant progress made in terms of recognising same-sex relationships within our legal system. In November 2008, Federal Parliament passed a same-sex law reform package, which prompted changes to 85 Commonwealth Acts, removing differential treatment of same-sex couples and their children across a number of areas of law. In terms of the changes within Family Law, all States and Territories now recognise that a de facto relationship can exist between two people of the same sex, and that same-sex de facto couples have the same Family Law rights as heterosexual de facto couples.

In relation to that ad which was strategically aired during the Mardi Gras last Saturday. Dear Australian Marriage Forum, the dark ages called - they want their ignorance back. 

First off, that’s a mighty fine looking high horse you've got there.

Secondly, I refer to your comments in relation to marriage equality forcing a child to ‘miss out on a mother or a father’. From a Family Law perspective, I can assure you that having a mother and father by no means precludes a child from an unfortunate and difficult upbringing. I’m confident in saying that I honestly don’t believe that any of my counterparts would disagree with me on that one - regrettably, sometimes we see mothers and/or fathers at their worst.

Thirdly, your comments are not only an affront the gay community – they also offend all those families out there who don’t fit the nuclear mould. For example, single parent families, and families in which grandparents are raising their grandchildren because for one reason or another, the child’s parents are unable to parent.

Finally, I draw your attention to Section 60CA of the Family Law Act 1975 (Cth). In making parenting Orders, the Family Court is bound by ‘the paramountcy principle’. This means that in making a parenting Order, ‘a Court must regard the best interests of the child as the paramount consideration’. In making this determination, the Court must contemplate as a primary consideration the benefit to the child of having a meaningful relationship with both of its parents. The definition of ‘parent’ goes beyond biological, and can relate to adoptive parents. No mention of gender, no requirement for ‘parents’ to be of heterosexual persuasion. Methinks there may be something in that. 

A nuclear family structure is not a guarantee for a happy family. A happy family is a guarantee of a happy family - it’s as simple as that. Single parent, same-sex parents, blended families, married couples, de facto couples – no particular family structure has the monopoly in the happy-and-well-adjusted stakes.

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2000 Hits

Living apart, together!

You may be forced to live separately by choice or by necessity including maintaining separate residences. You may have many reasons for doing this including work availability, care of elderly family relatives in another city or country or to support adult children as they pursue university and career opportunities far afield.

However, if you live separately from your partner, are you still in a relationship and what should happen if you break up? What happens if you have drifted apart?

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3102 Hits

Won’t somebody please think of the children

Won’t somebody please think of the children

Going through a separation is a pretty awful experience, and it’s not something I can try to sugar-coat. It’s even worse when you have kids; they didn’t ask for any of this, they’re just dragged along for the ride.

So how do you protect your kids from the perils and pitfalls of separation? Here are some basic rules:

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7680 Hits

The To Do's Before the I Do's

THE TO DO’S BEFORE THE I DO’S

Marriage is about more than just the loving union of two people—it’s also about the union of financial assets and liabilities, and families. Or, as some like to say, it’s about halving your rights and doubling your duties.

There are good reasons why you should consider signing a Financial Agreement before you marry or commit yourself to a de-facto relationship. However, not everyone needs a Financial Agreement. Quite apart from the legal issues (which you can discuss with a solicitor), the answer to this question will depend on a number of practical considerations, as follows:

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5237 Hits

Navigating the Family Court

Navigating the Family Court

The Family Court of Western Australia is not the sort of place anyone wants to end up in. However, in some matters, it is unfortunately unavoidable. Should you ever find yourself parking under the Perth Concert Hall, and the only show you’re going to see is your life played out publically in front of you (and your ex-partner and respective Solicitors with front row seats), here are a few hints that may make a pretty tough situation a little easier:

Security Check: When you enter the Court, you will be required to walk through a metal detector, and your belongings will be run through a scanner machine, a la the Airport. I’ve seen the security guards confiscate all sorts of sharp metal objects, so leave these at home. I’m sure that whoever penned the The Little Book of Calm would tell you to also take the opportunity to close your eyes, and pretend that you are about to board a plane to some exotic location. No judgment - whatever works for you.

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5059 Hits

Can you trust your Trust? Is your Trust a SHAM?

Can you trust your Trust? Is your Trust a SHAM?

Riddle me this:

  • Has your Trust been created to evade legal obligations?
  • Is there a disparity between actual transactions and your Trust Deed?
  • Are you trying to mislead others in respect of your rights and obligations under the Trust Deed?

If you answered yes to any of the above questions, then I am pointing my finger at you, and telling you that your Trust looks like a sham; and your ex could soon be having a bite of that tasty looking cherry of a Trust in the Family Court!

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4540 Hits

Am I or aren't I? Part 2

Am I or aren't I?  Part 2

For those who have not read Part I of the blog please do so before reading any further Am I or aren't I Part 1.

For those of you who read the blog last week you’ll remember that I had left off with our client dying in hospital shortly after being cross examined.

The next day in Court we had the unfortunate duty of notifying the Federal Magistrate what had just happened and without missing a beat we made an Oral Application that our client’s nephew, as executor of our client’s estate, carry on the litigation. That was always going to be an uphill battle and it was rejected as there was the need for probate to be obtained on our client’s Will. It was a hurdle of course but one that we did not think would be any issue in overcoming. We were wrong. Our Application was met with a caveat in the Supreme Court put on by the other party’s solicitors as a result of our client having other family that was not in the Will. Notice had to be given to the other family members as to whether they wanted to intervene in the proceedings. That was met with responses of none of the family wanting to have anything to do with our client or the proceedings.

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4351 Hits

Why is marriage about Sex?

WHY IS MARRIAGE ABOUT SEX?

Mankind, from the earliest of times, has been driven to live within a community and to have the intimacy of a loving and committed relationship with the person of their choice.

By Christian tradition this relationship would only be solemnised by a Christian Church in the form of marriage if the union was between a man and a woman.

In the mid-19th Century, the Courts defined marriage as “the voluntary union for life of one man and one woman to the exclusion of all others.

S5(1) of the Marriage Act 1961 continues this definition; “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”

Why do we as a society, refuse to consider or allow a conscious vote by our elected representatives to determine whether the fundamental right of an individual to choose with whom they wish to enter into a union to the exclusion of all others for life should or should not be solemnised? The Answer must be fear.

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4800 Hits

Am I or Aren’t I?

Am I or Aren’t I?

For all our faithful blog readers out there you have no doubt read our absolutely top notch blogs from my colleagues. In case you haven’t noticed we do things a bit different here at Butlers. We like to make the law easy and accessible to everyone, and it should be.

For all of our first time readers you will find that these blogs are informative and they give you guidance if you’re about to get into a relationship, or are in a relationship or if you’ve just got out of a relationship.

I thought I’d change things up a bit and share a personal experience that I had 2 years into practicing. Now before you feel the need to let out a groan, just give me the benefit of the doubt and have a read.

I’m often met with the response of “Oh wow, that must be so tough” or “I don’t know how you do it” when I tell people that I’m a Family Lawyer.

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8050 Hits

“I’m a sperm donor!” he said. “I’m a parent!” he said. WRONG.

“I’m a sperm donor!” he said. “I’m a parent!” he said. WRONG.

Well, at least for legal purposes, in Western Australia.

When it comes to matters of artificial conception, the Artificial Conception Act 1985 (WA) states the following:

  1. if a man provides genetic material to a woman, and that woman uses his genetic material to become pregnant via an artificial fertilisation procedure, then the man “shall be conclusively presumed not to have caused the pregnancy” and “is not the father of any child born as a result of the pregnancy”.
  2. if a “woman undergoes, with the consent of her de facto partner, an artificial fertilisation procedure in consequence of which she becomes pregnant… then the de facto partner of the pregnant woman, shall be conclusively presumed to be a parent of the unborn child” and “is a parent of any child born as a result of the pregnancy”.

I don’t know about you, but my first reaction is that that first part does not sit in accordance with what I learnt from Maury Povich.

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5923 Hits

When love hurts...

When love hurts...

I’m a glass half full kind of guy. I like to think that we live in a world where for the most part people are decent.

Now, you don’t have to be a sports fan like myself to know the trouble the National Football League is facing in light of the recent Ray Rice domestic violence incident. The video footage released by TMZ showed the Baltimore Raven’s star running back strike his then fiancé, Janay Palmer, with a left hook which led to her head being bounced off an elevator rail. It was enough to make anyone feel absolutely sick to their stomach.

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5167 Hits

Handing back the Rose: what The Bachelor has taught us about broken engagements

Handing back the Rose:  what The Bachelor has taught us about broken engagements

One minute he was the Bachelor. The next minute, to the disappointment of Barry-White-voice-loving women everywhere, he was suddenly engaged. In South Africa by the way – how exotic. And then, shock horror, it was all off. Poor ol’ Sam - if they can’t make it, what hope do the rest of us mere mortals have? And apparently, Lisa was pregnant. But really, she wasn’t. And now? Louise is the object of his affection. I just can’t keep up. Who would ever have thought that there would be such a dramatic and surprising ending to such a sophisticated and scholarly example of reality television?

Just in case you’re not picking up what I’m putting down, yes, that was an oxymoron, and, yes I’m being facetious. I haven’t had my morning coffee yet. But what lesson can we all take away from this whole fracas? Spare a thought for the engagement ring that was presented to Blake’s beloved betrothed, albeit short lived. That sparkly little number from the most highly named-dropped jeweller in Sydney. Who shall remain unnamed. Unless they agree to pay me a commission. In diamonds. #BUNDAFORROSIE – you are my inspiration.

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7041 Hits

“Are you not entertained?”

“Are you not entertained?”- Why family violence is currently front page material for all the wrong reasons

Anyone who knows me knows that I am a bit of a cliché when it comes to being a redhead with a temper. The issue that has recently attracted my ire is that of the deranged chef in Queensland who brutally murdered and then ATE his partner. To say this crime is horrific is an understatement. However, what is more horrific is the front page of Queensland’s own Courier Mail in response to the crime. The front page showed a picture of the victim wearing a bikini and in a provocative pose, with the headline “Monster Chef and the She Male”.

The fact that Ms Prasetyo was a trans-gender female and an escort is irrelevant. That the media has spun the story to put those two facts front and centre reeks of victim-shaming. Honestly, it’s 2014 and we are still perpetuating the “she had it coming” defense?  She was a real person, with a family and a life, and that life was taken away from her by the man that she was married to. By the way, her Mother has told reporters that she worked as an escort to support her family and put her little sisters through school- you don’t see that in any headlines do you?

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5215 Hits

World Mental Health Day - Recognition of Mental Illness in Family Law

It’s World Mental Health Day

On 10 October, millions of people around the world will take a moment to observe World Mental Health Day. A day which calls us to recognise and analyse the level of support we give to mental health issues, which, according to The Australian Bureau of Statistics, an estimated 45% of Australians experience in their lifetime.

Separation and divorce are among life’s most devastating and troubling experiences. Before someone has even digested the fact that they are separated from their former partner (let alone the consequences), they can be hurled into a Family Law storm of valuing and dividing assets, making long term decisions for their children, or attending Court hearings and building affidavit material that sets out, in intimate detail, their life with their former partner, which is being scrupulously analysed by lawyers and judges alike.

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6585 Hits

International child abduction – how to recover your child if you’re not Liam Neeson and don’t have his “special skills”

International child abduction – how to recover your child if you’re not Liam Neeson and don’t have his “special skills”

Recently all the news stations have been reporting about a lady called Dorothy Lee Barnett. Now Dorothy looks like a nice lady, and I’m sure her southern-drawl is quite charming. But here’s the thing – Dorothy has now been extradited to the US facing a number of charges, including international parental kidnapping and passport related offences. Because, as it turns out, Dorothy told her ex that she was taking their baby daughter to a birthday party one day…and never came back.

I think it’s fair to say that in a very limited number of circumstances, you could understand why a parent may flee to another country with their child. For example, in cases of serious family violence, it’s not unreasonable that someone would think that their only option, and their child’s only option, is to escape overseas. However, in most cases, it’s just not on. In Dorothy’s case, her ex had already been awarded sole custody of their daughter. For her to have deprived her daughter of a relationship with her father for the past 20 years is, in my opinion, pretty deplorable.

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5915 Hits

“[They] got one of your kids, got you for 18 years: Utilising Child Support Agreements so that everybody wins”

“[They] got one of your kids, got you for 18 years:  Utilising Child Support Agreements so that everybody wins”

“His baby-momma’s car and crib is bigger than his”if ever a song generated ample work for family lawyers, it is Kanye West’s 2005 classic “Golddigger”. Sure, there’s an element of misinformation included in the lyrics, and it has lead to many of the population thinking that holler[ing] “we want pre-nup” is a sufficient asset-protection measure, but it was on the right track.

Other than increasing public awareness about Financial Agreements, it also dealt with child support. While the Child Support Agency has mechanisms by which you may object to an administrative assessment, what many people may not realise is that parents can reach their own agreement in relation to child support and, more importantly, document it so that it’s enforceable.   Child Support Agreements now form a valuable part of property settlement negotiations and may reduce acrimony because both parents are involved in the negotiation process. Parents may also want to “lock in” certain payments to third parties, such as health insurance or school fees (and additional educational costs). In these situations, a Child Support Agreement may be the way to go.

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4806 Hits