In Queensland, family lawyers focus on handling legal matters related to family law, including divorce and children’s disputes. They can provide legal advice, represent you in Court, and help you navigate the complexities of the legal system.

When it comes to divorce, Australia operates under the “no-fault” principle, meaning that you don’t need to prove fault or wrongdoing to obtain a divorce. The main requirement is that the marriage has irretrievably broken down, usually demonstrated by having lived separately and apart for at least 12 months.

Regarding time with children, the focus is on what is in the best interests of the child. Queensland follows the principles outlined in the Family Law Act 1975, which prioritises the child’s well-being, safety, and maintaining meaningful relationships with both parents if it is deemed safe and appropriate.

Finding the right family lawyer to handle divorce and children’s disputes in Queensland is crucial for ensuring the best possible outcome for you and your family. Divorce and child custody cases can be emotionally challenging and legally complex. That’s why it’s essential to engage the services of an family lawyer who has experience in this area of law. A skilled lawyer can provide valuable guidance, protect your relationships, and advocate for you and your child’s best interests throughout the process.

If you’re looking for experienced family lawyers in Queensland to handle your divorce and children’s disputes, look no further than “The Legal House.” Our firm practises in family law and is dedicated to providing comprehensive legal services tailored to your specific needs.

At “The Legal House,” we understand that divorce and children’s disputes can be emotionally challenging. Our team of skilled family lawyers is here to guide you through the process with compassion and experience. We are committed to protecting your relationships and advocating for the best interests of you and your children.

When you choose “The Legal House,” you can expect:

Experienced and Knowledgeable: Our family lawyers have extensive knowledge and experience in all aspects of family law, particularly divorce and children’s disputes matters in QLD. We stay up to date with the latest legal developments to provide you with the most effective representation.

Personalised Approach: We recognise that every case is unique, and we take the time to understand your specific circumstances. Our lawyers will listen to your concerns and goals, providing tailored advice and creating a legal strategy that aligns with your needs.

Strong Advocacy: We are committed to protecting your relationships and fighting for your best interests. Our lawyers are skilled negotiators and litigators who will explore all available options to achieve the best possible outcome for you and your family.

Effective Communication: We believe in clear and open communication with our clients. Our lawyers will explain legal concepts in plain language, keeping you informed and involved throughout the process. We are always accessible to address any questions or concerns you may have.

Cost-Effective Solutions: “The Legal House” understands the financial implications of legal proceedings. We offer transparent fee structures and work diligently to provide cost-effective solutions without compromising on the quality of our services.

Choosing the right family lawyer is crucial for the success of your case. “The Legal House” is dedicated to providing exceptional legal representation in divorce and children’s disputes in QLD. Let us help you navigate the legal complexities while you focus on rebuilding your life.

The best interests of the child are the paramount consideration. Children are entitled to enjoy a meaningful relationship with both parents, but occasionally this is not in their best interests, as it may be necessary to protect them from being subjected to, or exposed to physical or psychological harm. Ideally, your parenting arrangement will incorporate all these concepts, but as described above, there are times when it is not in a child’s best interests to spend time with a parent.

What The Court Considers

The law as it is described in the Family Law Act 1975 is gender-neutral, making no assumptions about who performs what parenting roles.

A presumption of ‘Equal Shared Parental Responsibility’ exists when parents separate, however, equal shared parental responsibility does not mean that the child/ren spends equal time with each parent.

Equal shared parental responsibility means that both parents share the responsibility for making decisions about major long-term issues, such as schooling, major health decisions, and religious observance. It does not mean that a child will automatically be spending “equal time” with each parent. A Court can decide that it is in the best interests of the child to remove parental responsibility from one or both parents because of ongoing conflict, incapacitation, or unsuitability of a parent.

A child’s age is a determining factor in deciding where the child will live – i.e. a breastfeeding baby would not generally be taken from her mother’s primary care. It is also the case that, the older a child gets, the more weight their voice carries. In making decisions about children’s opinions as to who they spend time with, a Court considers:

• The child’s maturity
• Their level of understanding of the situation
• Whether their opinions are well-informed
• Whether there is evidence the child has been unduly influenced

The Role of an Independent Children’s Lawyer

In some situations, the court will appoint an Independent Children’s Lawyer (ICL) to represent the children. The ICL will gather information from sources including teachers, doctors, psychologists, counsellors, police, and child welfare authorities before deciding whether to interview the child or not.

This appointment will often be made in cases where:

• There are allegations of physical, sexual, or psychological child abuse
• There is an ongoing conflict between the parents
• The child is alienated from one or both parents
• There are cultural or religious differences affecting the child
• There is a proposal to separate siblings into different households or take a child overseas

The article is written by the team at The Legal House, who practice in the area of family law and is intended to offer simple explanations to frequently asked questions about whether children’s voices are heard in family law proceedings. It is not legal advice and should not be relied upon as it does not answer questions specific to your situation.

Please make an appointment with one of our family law team, for an obligation-free consultation.

If you need assistance with divorce, child custody, or other family law matters in Queensland, our experienced team of lawyers for divorce and child custody is here to help. Contact us today for a free consultation.

DNA Testing & Paternity

Occasionally, questions arise regarding the paternity of a child, which can be conclusively determined through DNA testing. Before ordering DNA testing, other relevant factors are taken into consideration.

If a child is born to a married woman during the marriage, the law presumes the child to be the biological child of the woman and her husband. Similarly, if a child is born to a woman in a de facto relationship lasting between 6 and 10 months, the law presumes the child to be a product of that relationship. Additionally, if you are named as a parent on the child’s birth certificate or have acknowledged your parenthood in any document, you are presumed to be the child’s parent. If any of these circumstances apply to your situation and you wish to challenge these presumptions, you will need to provide evidence to prove otherwise.

In legal proceedings where the parentage of a child is in question, the Court has the authority to order a parentage testing procedure, commonly known as a DNA test, to be conducted on the child, the mother, and any other relevant individuals to determine the child’s parentage.

For unmarried parents or those not involved in de facto relationships, where parentage is disputed, it becomes necessary to establish parentage through testing. In situations where the mother is uncertain about the child’s father, the Court can order parentage testing procedures to be carried out on multiple suspected fathers until the biological father is determined.

Establishing parentage is typically a requirement before the Child Support Agency can make assessments for child support. However, if you have acknowledged paternity through documents like a birth certificate or hospital records, you may be assessed and ordered to pay child support based on that acknowledgment. Parentage is also generally necessary before a Court can issue orders regarding parenting time, although there are circumstances where third parties, such as grandparents, can be granted time with the child.

If you have doubts about being the biological parent of a child for whom you are paying child support, you can initiate proceedings in the Federal Circuit Court of Australia. Present evidence supporting your suspicions and request the Court to order DNA testing, either through oral swab or hair follicle samples, for you and the mother. If the DNA test proves that you are not the child’s biological father and you have already paid child support, the Court can declare that you should no longer be assessed for support payments, and you can seek to recover the money you have paid.

If you are facing child support issues or wish to gain a better understanding of your child support obligations, we invite you to schedule an appointment with our family law team at The Legal House for a no-obligation consultation. Our Parenting Agreements Lawyers in Qld will provide you with the necessary guidance and support.

SPOUSAL MAINTENANCE

One party to a marriage (also read into this de facto) is liable to maintain the other party to the marriage if the other party is unable to support themself adequately and to the extent the first party is reasonably able to do so.

Before making any spousal maintenance orders a Court must consider what property orders it will make, as the distribution of matrimonial assets may result in both parties being able to sufficiently meet their own reasonable expenses.  The main thrust of such a consideration is the `clean break’ principle, as the Courts prefer to make decisions bringing finality to proceedings.  In other words, an order, imposing an obligation on one of the parties to make periodical and ongoing financial commitments, even if it is only for the short term, to another party is generally avoided as the Courts do not like “supervising” a periodical payment order, preferring instead to issue a final order, making a suitable adjustment in favour of the financially disadvantaged party.

The Court has established what is essentially a four step process when considering an application for spousal maintenance:-

1. To what extent can the applicant support themselves?
2. What are the applicant’s reasonable needs?
3. What capacity does the respondent have to comply with and Order issued by the Court?
4. If steps 1 to 3 favour the applicant, what order is reasonable having regard to the care the parties provide for any children of the relationship, age, health, income, property and financial resources of the parties?

Before a Court will examine the quantity of spousal maintenance required, an applicant must demonstrate that they are unable to support themself adequately from their own financial resources, by reason of having care of a minor child/ren of the relationship, physical, or mental incapacity, or for any other adequate reason.

If a person chooses not to utilise an income generating skill, then they will not be able to demonstrate to the Court that they cannot support themselves and the Court will dismiss their application.  An applicant cannot be successful where they have not made a genuine effort to gain employment, but of course, there may be circumstances which prevent the applicant from engaging in gainful employment.  For example, one party may need a car to travel to employment at various sites but may not have the funds to buy a car.  The court will examine the totality of the circumstances in determining whether an applicant has established that they are unable to support themselves adequately.

Employment qualifications do not necessarily equate to the capacity to adequately support yourself, what must also be taken into consideration is the length of time that a person has been absent from the workforce and whether those absences are as a result of the party’s commitment to the children and the home.

What is adequate depends on the circumstances of the case, adequate is more than bare necessity, or a standard of living that is reasonable in the circumstances.  Adequate is not being forced to continue living with your parents rent free forsaking your independence, when you have already been living independently for many years, but having said that, there is no requirement that the applicant’s standard of living pre-separation be maintained.

An applicant does not have to demonstrate that they have spent all their money to make a successful claim for maintenance and by extension claims are not limited to “current” expenses, as an applicant may not have the financial means to meet the ongoing commitments necessary to support themselves.  Payments associated with rent and vehicle ownership (as outlined above), are ordinarily considered reasonable expenses, but may not form part of your current expenses because you simply cannot afford it.

In determining whether a spouse can adequately support themself the court will consider the age, health, income, property and financial resources of the parties, who has care or control of the children of the marriage, and other factors.

The extent to which one party is reasonably able to support the other also depends on the circumstances of the case and is relative to the overall wealth of the parties.  The main argument surrounding capacity is whether it should be judged on your existing income or earning potential.  Generally, the courts adopt the mentality that your capacity to pay spousal maintenance is judged on your existing income, except where deliberate attempts have been made to minimise your income to avoid spousal maintenance.  Earning potential is more relevant when considering property orders, not spousal maintenance.

In one case a husband was earning in excess of $200,000 per year as a management consultant during the marriage.  After separation he took a job as a university lecturer with a yearly income of $80,000.  At trial the Judge ruled that this was a deliberate attempt to minimise his income and he ordered spousal maintenance in the amount of $500 per week.  The original decision was overturned on appeal, as the husband produced unchallenged evidence that he only earned $250,000 because he worked in excess of 80hrs per week.  Since the separation one of the children decided that he wanted to live his father, therefore the husband couldn’t work 80hrs per week as a single parent, so he had to take a job which allowed him to appropriately parent his children.

In another case a spouse produced evidence of his weekly expenses exceeding his weekly income by almost $2,000, but over the course of the trial, the Court was able to determine that the spouse had not made full and frank disclosure of his financial position, and was somehow always able to meet substantial expenses which were important to him, despite his apparently compromised financial position, so he was ordered to pay spousal maintenance.

If you cannot resolve a dispute that relates to spousal maintenance, then you should book an appointment with one of our family law team for legal advice.

PUBLICATION OF COURT PROCEEDINGS

Any matters discussed during family law proceedings, or documents created for the purposes of proceedings in either the Family Court of Australia or Federal Circuit Court of Australia are not made available for consumption in the public domain and should not be used for any other purpose, which is not related to the family law proceedings.

To achieve that objective, parties in family law proceedings provide an implied undertaking that any information they discover during the family law proceedings will only be utilised in those family law proceedings and not for any other purpose.

Additionally, the Family Act 1975 imposes a restriction on all persons publishing in a newspaper, radio, or television broadcast, or otherwise “…disseminating to the public, or a section of the public” by any means, any part of any proceedings, which may identify a party to the proceedings, a person related to or associated with the proceedings, or a witness in the proceedings. Trusted family lawyers in Qld can help you navigate these restrictions and protect your privacy during family law proceedings. Any persons who breaches this restriction commits an indictable offence, which is punishable by up to one (1) year imprisonment.

The restriction on newspaper, radio, or television is self-explanatory, so will not be explored any further here.  But what about, otherwise disseminating to the public or a section of the public any part of the proceedings which may identify parties to the proceedings, or relatives and associates of parties to the proceedings?

Is a conversation with a Psychologist, Doctor, Counsellor, or trusted friend disseminating to the public, or a section of the public?  The short answer is no, but if that conversation takes place over one of the publicly available social media platforms, the answer will be yes.

The Courts have examined this issue at length and the phrase “disseminating to the public, or a section of the public” should be read as widespread communication, with the intention of reaching a wide audience.  Widespread communication will no doubt include, statements on Twitter, Instagram, and Facebook, which we will get to later.

There may be instances where releasing information or documents created specifically for the purposes of family law proceedings serves the interests of justice.  For example, if you are defending a criminal, or libellous allegation and a party, or witness in family law proceedings has made prior inconsistent statements in the Family Court, which bear direct relevance to the proceedings of another Court, then it is highly likely that, on application, the Family and Federal Circuit Courts will authorise the release of that information and relieve a party of their “implied undertaking of silence,” for the purposes of mounting the best available prosecution, or defence available to them.  The “credit” of a witness in Court proceedings is an issue of the utmost importance in most litigation and where witnesses have made prior inconsistent statements, they should expect to be cross-examined about such statements.

There are other instances where statements on websites, Twitter, Instagram, and Facebook are referred to the Court for further action and in one of these examples, the names of witnesses, children, and parties in family law proceedings found their way on to a website. Trusted family lawyers in Qld can provide guidance on dealing with such situations and taking legal action to protect your privacy.  The mother filed an application with the Court seeking an injunction against the website and suspected that the father was involved in the creation of the website, but there was insufficient proof to support these allegations.  The Judge issued an injunction against those behind the website restraining them from continuing to have the material identifying parties and witnesses, accessible on their website.

Judges in the family law jurisdiction do not have any authority to punish persons who breach those provisions – they are limited to referring alleged breaches to the Australian Federal Police for further investigation.

If the AFP concludes there is enough evidence to prosecute a person, they need to seek the Director of Public Prosecution’s written consent before they commence proceedings.

If you have any questions about whether you have publicised or identified someone involved in family law proceedings, please contact one of our trusted family lawyers in Qld to discuss your situation.

Family Consultants are often appointed by the Court in children’s disputes to interview and observe relevant parties; prepare reports about their interviews and observations; and make recommendations about the most suitable future co-parenting regime. They provide an independent voice, helping Judges make decisions about arrangements for the child/ren. In the process, they may also help the parties reach an agreement.

In preparing the report, the family consultant considers the family’s circumstances, explores issues relevant to the case, and recommends arrangements that will best meet the child/ren’s future care, welfare, and developmental needs. The child’s best interests are always of paramount importance.

The report is confidential and cannot be shown to anyone other than parties to the court proceedings and their legal representatives. It is an offense, to publish or disseminate to the public, or a section of the public, any part of proceedings under the Act that identifies a party, a witness, or certain other persons.

What is a family consultant?

Family consultants are qualified social workers or psychologists, with skill and experience in working with children and families. They are appointed by the Court to help parents and Judges achieve the best outcomes for the children. Family consultants are recognized as experts in relation to children’s matters.

How much does a Family Report cost?

A Family Report can occasionally be ordered and paid for by the Court, where the parties are under financial hardship, so there is no cost to either party. Alternatively, the Court may order that the parties equally pay for the costs of the report, which can cost between $4,000-$5,000.

What happens after a Family Report is ordered?

If we represent you, we at The Legal House will contact you advising you of your appointment times and help prepare you for the interviews. Interviews may be conducted in the Child Dispute Services Section of the Court, or at the Family Consultant’s office.

What information will the family consultant need to prepare the Family Report?

The family consultant may contact teachers, doctors, or other relevant professionals for more information about your child/ren. The Court may also direct that the family consultant has access to material which has been subpoenaed.

Generally, the family consultant will gather information about:

• The issues in dispute
• Past and present parenting arrangements
• The parenting capacity of each party
• Your child/ren’s relationships with significant people
• Your child/ren’s wishes and views, and
• Any risks to the child/ren.

Is the information provided to the family consultant confidential?

The information provided to the family consultant is confidential to the court proceedings, but all information gathered by the family consultant is admissible in Court. The family consultant is required to include relevant information in the report and may also be required to give evidence in Court. So, others not involved in the Court proceedings will not know about the contents of the report, but all those involved in the proceedings will.

What if the recommendations of Family Report are unfavourable to me?

The Family Report is only one source of evidence that the Court considers in making its decision, but their views are very persuasive. The Court is not bound by any recommendations made in the report, and you can challenge the contents of the Family Report by cross-examining the report writer at a trial, although very few cases proceed to trial.

If you require professional legal assistance in family law matters, contact The Legal House for personalised support and guidance. Our experienced team of family lawyers in Qld is ready to help you navigate the complexities of your case.