Grandparents play an important role in the lives of children all over Australia. They are often an invaluable resource to parents who need a break or guidance or to assist in the day to day activities for the children, such as before and after school care. It is because of this that the Family Law Act recognises grandparents and has provisions within the Act that sets out rights for grandparents in relation to their grandchildren.
The Act provides that the children have the right to maintain regular contact with people who have had or do have a significant role in their daily care, welfare and development. As grandparents have often been overlooked previously, the Act now specifically includes grandparents in this category. Unfortunately, the Act does not go so far as to provide for an automatic right for the children to see and care for their grandparents, however provides that Grandparents are able to apply to the Court for Orders that allow same.
As with all applications concerning children, the Court must consider whether the Orders sought in the Application are in the children’s best interest. This test may be satisfied if a parent is unable to care for a child, unwilling to care for a child or otherwise should not be caring for a child (such as capacity issues). These circumstances mentioned are not exhaustive, which means that even if you do not satisfy one of the above, you may still be able to apply to the Court for an Order.
In cases such as drug or alcohol abuse, significant levels of violence in the home or if the children are being neglected, the Courts are more likely to consider an Application by the grandparents due to the need to protect the children. In making the Order, the Courts can set out who the children are to live with, who is able to make the long terms decisions concerning the children (such as just the parents or jointly with the grandparents or just the grandparents alone) and also put into place any specific requirements for spending time with one of the parties, such as the need to be supervised at all times.
If you are a grandparent who is being denied the opportunity to see your grandchildren or you have concerns for your grandchildren, please contact our office and we will put you in contact with one of our Family Law Experts who will be able to advise you as to your rights and the correct action to be taken. Call us on 1300 066 669.
The Charges:
Attempting to Pervert Justice (Criminal Code 1899 – SECT 140)
Attendance Date:
March 2018
Location:
Brisbane District Court
Overview & Outcome
Our client was charged with Attempting to pervert the course of Justice by agreeing to accept charges on a friend’s behalf via written statutory declaration sent to the Police. Police established that the original offence was not committed by our client and therefore, by writing the declaration to accept the charge, our client was charged with perverting justice. The maximum penalty for this offence is 7 years Imprisonment. It is not uncommon for defendants to spend time in actual custody for these sorts of offences as they are considered particularly serious. Our client pled guilty to the offence before the Brisbane District Court. After detailed submissions made by counsel, the presiding Judge ultimately sentenced him to a wholly suspended sentence with no time to be served in actual custody for this offence. It was a great result and one that our client was extremely happy with.
The recent development about Barnaby Joyce’s extra marital affair has opened a dialogue with regards to discussions on property settlements and paternity. What many people falsely assume is that the girlfriend (as opposed to his wife) will not be entitled to anything apart from child support from Barnaby and that his property settlement issues with his (now) ex-wife will be resolved through the usual process.
This cannot be further from the truth. In this circumstance, it is possible that Barnaby has left himself open to a property settlement claim from both his now ex-wife and the girlfriend. How can this be possible? The Family Law Act provides that parties are entitled to seek a property settlement through the Courts where they are either in a de-facto relationship or a marital relationship. Ordinarily, most people will fall into either one or the other category, however the process is the same when it comes to establishing entitlements.
Where the issue is complicated is in circumstances where a one party to the relationship maintains a relationship with a party outside the relationship. Often these relationships are short-lived and when discovered, often result in the parties separating. In this circumstance, the relationship has not only been over a lengthy period of time, it has also resulted the birth of a child. If we were to put the paternity issues aside, what we are now faced with is one person who has maintained two relationships which, if considered individually, would each satisfy the criteria set out be the Family Law Act to qualify for a property settlement (and potentially spousal maintenance as well).
In this circumstance, both the girlfriend and ex-wife would be entitled to seek a property settlement under the Act. If both the girlfriend and ex-wife apply for a property settlement, this could potentially see Barnaby left with very little by way of assets.
If you need advice about a property settlement, please contact us to speak to one of our Family Law experts who will be able to give you comprehensive advice and ensure that you receive what you are entitled to. Call us on 1300 066 669.
When Family Law solicitors first meet with clients who have separated and need to divide their assets, one of the most common statements we hear is that the wife automatically gets the house, or that the other party has already obtained legal advice and they are entitled to 90% of the property pool.
This cannot be further from the truth and is one of the reasons why it is important that you obtain proper legal advice from a Family Law solicitor before finalising any agreements about how to divide your property.
There are many different factors that the Family Court or Federal Circuit Court will look at in determining how to divide the assets and liabilities of a relationship. This is done by way of a four (4) step process which is:
- Identify the assets and liabilities available for division, regardless of whose name they are in;
- assess the contributions of the parties, both financially and non-financially (which includes any gifts, inheritances, windfalls and contributions towards the raising of children);
- look at the future needs of the parties, including income earning capacity, age and care of children amongst many other factors; and
- determine how to distribute the assets so it is just and equitable.
When looking at all of the factors, the law provides for the Courts to have discretion as to how much weight or significance placed upon any given factor. Due to this, when speaking with a Family Law solicitor, you will often hear them comment that your entitlement falls within a particular range of percentages. There are no “rules” as to how the assets are to be divided and as such, in addition to negotiating how much each party is to receive, negotiations in a property settlement also focus on how the assets are to be divided. For example, one person may want their entitlement to be paid out in cash, while the other party may want to pay them by way of cash and a superannuation split.
The other big issue arises when one party has an unrealistic expectation as to their entitlements. Often this is a result of internet forums and gossip, however unfortunately can also be the result of speaking with a solicitor who does not understand the complexities of family law. If a party thinks they are entitled to significantly more than they are in reality, this often hinders any negotiations and means that the matter needs to be litigated before the Courts which is not a cheap exercise.
If you and your spouse/de facto partner are separating, speak to one of our Family Law experts. They can give you advice as to your entitlements as well as assisting you in negotiating a settlement and then documenting any agreement reached in the appropriate format to make it binding.
Do you require expert legal advice for a family law matter or family dispute resolution? We can help. Contact Brooke Winter Solicitors immediately on 1300 066 669.
Get Set, Gold Coast! The Games are coming and our team at Brooke Winter Solicitors is excited to welcome all the wonderful visitors to our city to join the celebrations. There will be people visiting the Gold Coast from all around the world and although that leads to a lot of excitement, it can also lead to a lot of potential for crime to occur in the community.
We advise that people be on alert, ensuring to lock your homes and vehicles properly and also watch your personal belongings whilst out.
If you find yourself in trouble over the Commonwealth Games period, contact our expert team. We are available 24 hours a day, 7 days a week and will have someone available to chat with you during the Games.
If you are arrested by Police during the period of the Games, be advised that you have the following rights:
- You have the RIGHT to telephone a lawyer, relative or friend; and
- You have the RIGHT to remain silent
Do not participate in any interviews or make any statements to Police, even if you believe it will help that situation. More often than not, it makes defending your case even harder. Keep in mind that anything you say can and will be used against you.
Learn more about criminal and police investigations here.
If you have traveled to the Gold Coast from another country and are charged by Police, please contact us immediately on 1300 066 669 and we will be happy to assist.
Image courtesy of Tim Sackton.
More and more frequently, Family Law solicitors are faced with the situation where we have a client in our office who is panicking as their former spouse has taken the children overseas without their permission.
On many occasions, the situation resolves itself without issue, however there are an increasing number of cases where the former spouse leaves the country with no intention of returning. In these circumstances, often the spouse who is left in Australia can be left feeling helpless as Australian law cannot control their former spouse in another country.
The answer to this is called The Hague Convention. The Hague Convention is, in it’s most simplistic form an international treaty against child abduction. There are currently in excess of 98 Countries which have signed the Convention, with more being added every year.
In short, countries which have signed up to The Hague Convention have agreed that they will assist in the enforcement of parenting orders made in other countries. For example, if a parenting order was made in Australia and your former spouse removed the children to England, then upon receipt of a request from Australia, the English Courts would assist in enforcing the Australian Order and return the Children to Australia.
But what if you don’t already have a parenting Order in place. In these circumstances, The Hague Convention still applies, however before returning the children to Australia, the English Courts would need to determine several factors, such as the habitual residence of the children. If this is ultimately found to be Australia, then the children would be returned and then proceedings would follow in Australia to put in place a parenting order.
Unfortunately, an application under The Hague Convention can be a slow and drawn out process due to the difficulties in exchanging documents and different time zones, as well as trying to navigate through a foreign legal system. Therefore, it is important that an application is brought as soon as possible to ensure that there are no unnecessary delays in returning your children.
If your former spouse has taken your children overseas without your consent, contact our office and we will put you in touch with one of our Family Law experts who can guide you through the process of returning your children to Australia.
If this sounds like your situation, call us immediately on 1300 066 669 or contact us online.
Attendance Date: March 2018
Overview of Case:
We appeared in the Rockhampton District Court with a client who was charged with Dangerous Operation of a Motor Vehicle Occasioning Death which involved a heavy vehicle.
Outcome:
Our client pleaded guilty to the charge and we appeared before the court with him at the sentence. This was a tragic incident for everyone concerned. In preparation for court we organised a number of documents including references, reports and the certificate from the Queensland Traffic Offenders Program (QTOP). The Prosecutor was calling for a jail sentence of up to 4 years and a lengthy disqualification period. After lengthy and detailed submissions the Judge sentenced our client to serve 4 months imprisonment and a disqualification of his drivers licence for 18 months.
This was an excellent result in all the circumstances.
If you have any questions in relation to your matter please don’t hesitate to contact us on 1300 066 669. We are regional specialists and travel to any location to represent you in court.
One of the most common issues that family lawyers face is that of separated parenting disputing over their children. Often, one parent does not want to let the other parent spend time with the children or does not want the other parent to spend as much time with the children as they do. There are many reasons why this may be the case, whether it is a child support issue, an issue of family and domestic violence, drugs or just out of spite, the overall outcome is the same – until the parents are able to reach agreement, the children are often caught in the middle of feuding parents. So how do we approach this problem to avoid this?
The first step is to try to put aside any animosity that you may hold for the other parent. This is important if an agreement is to be reached without court proceedings. The second step is to focus on the children and what is in their best interest. There are many factors to consider in determining what is in a child’s best interest, including the views of the children themselves. Finally, document the agreement so it is clear what has been agreed and can be referred to in the event of a dispute.
There are two ways to record any parenting agreements reached; either by way of a parenting plan or consent order. A parenting plan is a written agreement which is signed by both parents. They are effective where there are low levels of animosity or where an agreement is likely to need to be changed regularly. Unfortunately, they are unenforceable in the event of a dispute which cannot be resolved which means that they carry a large element of risk should the co-parenting relationship deteriorate.
The other way to record a parenting agreement is by way of Consent Orders. This is similar to a parenting plan, however the consent orders are lodged with the Family Court of Australia and become an Order of the Court. This means that in the event one party breaches the Order, then the other party is able to enforce the agreement. The problem is that in order to have the agreement changed, the parties will need to either see a solicitor or make an application to the Court to vary the Order, which can be an expensive application to make.
Which is best for you? This will depend on your individual circumstances. As no two families are the same, different methods suit different people. If you have recently separated from your spouse and want some advice as to negotiating a parenting agreement, contact our office and we will put you in touch with one of our Family Law experts who will be able to assist you in negotiating an agreement and then documenting it in the most appropriate way.
Do you require expert legal advice for a family law matter or family dispute resolution? We can help. Contact Brooke Winter Solicitors immediately on 1300 066 669.
If you have been charged with any traffic related matter including drink driving, dangerous driving or unlicensed driving, we recommend that you seriously consider doing the Queensland Traffic Offenders Program (QTOP).
The court will take into consideration any preparations that you do in relation to your traffic matter and may assist you with reducing your sentence.
The QTOP course runs for 3 consecutive sessions, it costs $185 and you will receive a certificate of completion at the end of the course. The program is an educational court diversion program involving lectures from a range of driver safter experts, emergency service experts, counsellors, victims and lawyers.
If you’ve been charged with the offence of drink driving or drug driving, you will need to appear in court for that matter.
At Brooke Winter Solicitors, we can provide you with detailed legal advice and help you to complete the necessary preparations to mitigate your disqualification period. Our goal is to seek the minimum disqualification period available for your offence and to get you back on the road sooner.
If you need assistance with drink driving or drug driving charges, please contact us on 1300 066 669.
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