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Derek Legal Blog

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Derek Legal Blog

Number of blogs returned: 11 to 15 records of 36

How the Family Court decides Parenting Orders at an interim hearing

After the amendments to the Family Law Act in 2006, the Full Court of the Family Court in Goode v Goode stated the legislative pathway to be followed.

After pointing out that at an interim hearing the Court will often be faced with conflicting facts, little helpful evidence and disputes between the parents as per what constitutes the best interests of the child. The Court said the pathway at an interim hearing is:

82. In an interim case that would involve the following:

(a) identifying the competing proposals of the parties;

(b) identifying the issues in dispute in the interim hearing;

(c) identifying any agreed or uncontested relevant facts;

(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 01 August 18

Construction next door

On the Gold Coast there is lots of construction going on. This can cause problems for neighbouring properties. These problems can include noise, dust, vibrations and interfere with parking. What can a land owner do about this? Private nuisance is an action that is available when a neighbouring land holder interferes with the beneficial use of another’s land. The beneficial use includes concepts of the actual use of the land but also the pleasure, comfort and enjoyment which a person normally drives for the occupancy of land.

Activities on the land must be reasonable and if they interfere with the enjoyment of an adjoining land or damage adjoining land then the cause of action in nuisance arises.

In the case of dust, noise or vibrations an injunction can be obtained requiring the offending land owner to cease the operations that are causing the nuisance. If the vibrations cause damage the land holder is entitled to the cost of repairing the damage.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 25 July 18

How does a court determine what is in a child’s best interests?

In a Parenting Order the best interests of the child are the paramount consideration.

Section 60CC of the Family Law Act provides the legislative framework for doing so. That framework is divided into what are called primary considerations and additional considerations.

There are two primary considerations and 13 additional considerations.

The first primary consideration is the benefit of a child having a meaningful relationship with both of the child’ s parents. The subsection focuses on the benefit of the child rather than the parent. It doesn’t for instance mean that any increase in time that a child spends with the parent is necessarily for the child’s benefit.

The second primary consideration is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

The legislation mandates that a Court is to give greater weight to the secondary primary consideration when considering the primary considerations. In other words, a child that is exposed to abuse, neglect or family violence by one of the parents is unlikely to benefit from a relationship with that parent.

The Family Court has pointed out that the legislation does not focus on the relationship between the child and the parent, but the benefit that the relationship might have for the child is the paramount consideration.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 18 July 18

How does the Family Court deal with access to a child when there is an allegation of sexual abuse?

The Full Court of the Family Court considered the question in Johnson v Page [2007] Fam CA 1235.

The Court decided as follows:

1.       The decisive issue is and always remains the best interests of that child. All other issues are subservient.

2.       The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.

3.       Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.

4.       The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.

5.       The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.

6.       The onus of proof in reaching that conclusion is the ordinary civil standard.

7.       But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.

The Briginshaw civil standard of proof is on the balance of probabilities, but that standard must take into account the seriousness of the allegations.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 11 July 18

Time limits in family law

As might be expected there are no time limits in relation to bringing Parenting Applications to the Family Court or the Federal Circuit Court. The child has to be under the age of 18 when the Order is made. However, once a child reaches its teens, the older the child gets the more a Court is going to be influence of by the child’s wishes.

There is no time limit in relation to bringing an application for divorce. Some couples never divorce. This can cause serious consequences if the parties have not made a will, because on an intestacy, the wife or the husband is the first person entitled to Letters of Administration. The party’s new family might find the deceased estate being administered by someone the deceased had not dealt with for 30 years.

It is not necessary to divorce your spouse before you can bring an application for property settlement. This firm has conducted a property settlement trial for a husband who had been separated for 25 years but had not divorced.

However, divorce does trigger time in relation to bringing a property settlement application. The property settlement application must be commenced within 12 months of divorce, although there is power in the Court to extend that time.

In relation to de facto property settlement, the application must be commenced within two years after the end of the relationship. It is always important to act promptly in de facto property matters because often there will be a live issue as to when the relationship ended thereby causing time to start to run.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 04 July 18

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