Publications

How to Make Separation Easy With Family Dispute Resolution

4th of October 2018 by Janeen Smithson


Watch this video to find out tips on how to make separation easier through the Dispute Resolution Process:

https://youtu.be/FzZlGbXpZNg

New Blog Page

2nd of October 2018 by Janeen Smithson


To keep up to date you can now also visit our blog page at:

https://www.divorcelawyers.smithsonlawyersgoldcoast.com/

Divorce - How To Apply for A Divorce in Australia

28th of September 2018 by Janeen Smithson


Getting divorced is not easy. Watch this video to find out more about getting divorced in Australia:

https://youtu.be/GIvPGM9bwic

I Have To See A Family Consultant for A Family Report - What Now?

20th of July 2016 by Janeen Smithson


Often in Family Law Matters involving children the Court will make an Order for the parties to attend upon a Family Consultant to obtain a Family Report.

Who Is The Family Consultant?

The Family Consultant is often a Psychologist or Social Worker with experience in family and children’s issues.

Do You Get To Choose the Family Consultant?

The parties may discuss and reach an agreement about who should be appointed as the Family Consultant. However, sometimes, the Court will nominate the Family Consultant and the parties will have no choice.

How Do I Find Out Who Is A Family Consultant?

The Family Consultants and Mediation Services has a list of qualified Family Consultants on their website. Follow this link for more information:

http://www.fcms.net.au/mediation-services.html

Do I Have To Pay For the Family Consultant?

In most cases (unless the parties are entitled to Legal Aid) the parties will need to contribute towards the cost of the Family Consultant. The cost of the Family Consultant will depend on the person appointed.

Meeting with the Family Consultant?

The Family Consultant will make an appointment to interview the parties, the children and any other significant persons (such as grandparents). There may be one interview or more, depending on the nature of the dispute.

Normally, the Family Consultant will meet with the parties individually so that the Family Consultant can get each party’s view without the other person present.

The Family Consultant will normally meet with any children of the relationship. Initially, this may be without the parents present but may later involve the Family Consultant viewing the interaction between the children and each parent.

Do I Have To Attend My Appointment with the Family Consultant?

If the Court ordered that you are to attend upon the Family Consultant then you must attend your appointment.

What Is A Family Report?

A Family Report is a report written by a Family Consultant which provides an assessment of the issues in dispute in a case. It can also provide a recommendation as to what should occur in the future.

Often in cases before a Court, the Family Report will be the first piece of independent evidence.

How Does the Family Consultant Make The Report?

In preparing the family report, the family consultant may consider the family’s circumstances, explore the children’s wishes, explore whether there is any family violence or abuse, consider any issues raised by either party, explore arrangements that will best meet the children’s needs, consider the interactions during the interview and anything else said or done during the interview process. When writing the family report, the Family Consultant must focus on the best interests of the children.

It should be noted that the Family Consultant will consider everything you tell them during the interview and can report anything you say in the Family Report. Nothing is kept confidential.

The Family Report will be provided by the Family Consultant to the Court and the Court can use the Family Report to assist it in making a decision.

If the Family Report Is Against What I Want Does That Mean I Will Be Unlikely To Succeed?

The Family Report is only one piece of evidence that the Court considers in making a decision. It must also consider all the other evidence before it.

Do I Get A Copy of the Report?

Yes, a copy of the report is provided to all parties. A copy is also provided to the Court.

Can Family Court Orders Be Changed?

11th of July 2016 by Janeen Smithson


When an Order is made in relation to children it is made based on the facts and circumstances at the time. It is often difficult for the parties or even the Courts to foresee what will happen in the future and often what seemed like a good idea at the time may no longer be workable because the circumstances have since changed. So are the parties stuck with those Orders or can they change them?

An Order can be changed in two ways:

  1. By agreement between the parties; or
  2. By further Court Order.

Reaching an agreement is by far the cheapest and quickest option for parties. Even where parties can not reach an agreement between themselves, often with the help of Solicitors and Family Dispute Resolution practitioners an agreement can be achieved.

It should be noted that it is a requirement that parties initially attempt to reach an agreement through Family Dispute Resolution (often referred to as mediation) before applying to the Court unless some exceptional circumstances apply such as Family Violence.

If the parties do reach an agreement, then a Consent Order or Parenting Plan can reflect that agreement.

Before a Court will change an Order, it must first be satisfied that there has been a significant change in circumstances (known as the Rule in Rice and Asplund). It will be for the person applying for that change to show there has been such a significant change.

In all parenting matters, the best interests of the children are the paramount consideration. Courts are reluctant to allow parents to put children through further litigation unless there is a good reason to do so.

It will be for the Court to determine whether the circumstances have changed substantially. If the Court is so satisfied it may re-open the matter and make new Orders. If the Court is not satisfied the circumstances have changed then it can refuse to change the current Orders.

Buying a Property - Stamp Duty Is How Much?

14th of March 2016 by Janeen Smithson


It is far too often that I hear the sound of shock in a client’s voice when I tell them how much the Government Stamp Duty charges are. These stamp duty charges are a tax that unfortunately many of us have been subjected to but it’s better to learn early what the cost of these taxes will be so that it can be budgeted for.

So what is Stamp Duty?

Stamp Duty is a tax on written documents or Contracts. It is sometimes referred to as Transfer Duty and is imposed by the State Government.

What Transactions Are Subject to Stamp Duty?

In Queensland the main types of Contracts that are subject to stamp duty are:

• Contracts for the Transfer of Property • Contracts for the Transfer of Businesses • Contracts for the Transfer of Motor Vehicles

In this article we will look more closely at stamp duty payable in relation to the transfer of property.

Who Pays the Stamp Duty?

When buying a property, it is the Purchaser who will be responsible to pay the stamp duty.

How Much Stamp Duty Will I Pay?

The amount of stamp duty payable depends on the following:

• The purchase price; • Whether any concessions apply, such as being a First Home Owner.

What if The Purchase Price Includes GST?

If the purchase price includes GST, then you will pay stamp duty on the GST inclusive price. For example, if the purchase price is $400,000 + GST. Stamp duty would be payable on $440,000.

What Types of Concessions Are There?

You may be entitled to a concession (or discount) on the amount of stamp duty that you are required to pay if one of the following applies:

• First Home Owner Concession; • Home Concession

First Home Owner Concession

You will be entitled to the First Home Owner Concession if:

• You have never owned residential land anywhere in the world; • You have not previously claimed the concession; • The purchase price of the property is less than $550,000; • You move into the property within 1 year of the transfer date; • You live in the property as your principal place of residence for at least 12 months; • You are at least 18 years of age.

Home Concession

You will be entitled to the Home Concession if:

• You move into the property within 12 months of the transfer date; • You live in the property as your principal place of residence for at least 12 months.

Where Can I Get More Information?

Please visit our Conveyancing – Transfer Duty tab which contains a table of estimated stamp duty amounts payable.

http://www.smithsonlawyers.com.au/law-conveyancing.php

Or contact our office for more information.

You can also visit the Office of State Revenue website at:

https://www.treasury.qld.gov.au

Marriage Over - How Will My Property Get Divided?

17th of February 2016 by Janeen Smithson


You and your spouse have most likely worked hard throughout your relationship to build up your assets. Whether those assets include a home, car, investments or superannuation - you want to make sure that when you move on from your marriage that you know what will happen to those assets. How will your marital assets be divided between you and your spouse?

The Courts generally adopt a four step process when making a decision in relation to the division of marital assets.

Step 1 is Identifying and Valuing the Assets and Liabilities.

To identify and value the assets it is first necessary to work out what property will be included.

Property is defined broadly and includes: • Cash

• Real property such as houses, units or land;

• Cars

• Boats, Caravans, Trailers

• Antiques

• Furniture

• Shares

• Superannuation

• Business Assets

Property liabilities may include:

• Mortgages

• Car Loans

• Personal Loans

• Credit Cards

• Income Tax Liabilities

• Other loans

Once it is determined what the marital assets are (often referred to as the 'property pool') then it is necessary to determine the value of those assets.

Parties may agree on what the value of the assets are but when they don't it is necessary to assess the value.

Working out the value of an asset will often depend on the type of asset but it is the “fair market value” that is generally applied when determining an asset's value.

Determining the fair market value of houses and land can be achieved through the use of a licenced valuer. They will often write a report detailing the value of the asset based on supporting evidence (such as recent sales etc).

For cars, caravans and the like, valuations can be obtained from professional dealers who work in that industry. For example, a second-hand car dealership.

For other items such as cash or superannuation, statements from the financial institution or fund may be provided.

It should be noted that for items such as furniture it is not the insurance replacement value (or contents insurance value) that is used to calculate the value. Rather, it is the “fair market value” of the furniture in its current second-hand condition. A valuation may be obtained from a second hand furniture dealer to determine the value of each furniture item, particularly larger items if the parties are unable to agree.

As a general rule, a party seeking to include an item as an asset should produce evidence of its value. Formal valuations are preferred, where possible. Although obtaining valuations can be costly and time consuming, it ensures that incorrect values are not applied which may result in a party being short-changed.

Step 2 of the process is: Assessing the Contributions Made by the Parties.

This step requires an assessment of each party’s contribution to the acquisition, conservation and improvement of the property detailed above.

Contributions can include:

• Financial Contributions;

• Homemaker Contributions; and

• Non-Financial Contributions.

Financially contributions can include wages, inheritances received, monies had prior to the marriage etc. A party’s bank statements can often assist in showing this.

Homemaker contributions includes caring for the home or children, cleaning and all the day-to-day requirements of running a household.

Non-Financial contributions includes, for example, attending to repairs or renovations to the property such as to add value to the property.

Normally, a percentage will be allocated to each party based on their contributions.

As a general guide, if one partner is working full time and the other partner is caring for the children full time then their contributions will often be considered equal. Therefore, they will each have contributed 50%.

Step 3 of the process is: Evaluating Each Party’s Future Needs.

At this stage factors such as a party's:

• Age

• State of health

• Income or resources

• Physical or mental capacity

• Homemaker – are they caring for children under 18 years;

• Responsibilities to support another person

• Care for themselves or others etc.

• Standard of living etc.

will be considered.

For example, if the Wife of young children cannot work because she has to stay home and care for those children then her future needs may be greater than the Husband’s needs if he is healthy and able to work full time.

At this stage, another percentage may be allocated to the parties. Using the above example, the Wife may be allocated a percentage in her favour because of her future needs. Each case is different and there is no set rule for applying this percentage. It will be determined on a case by case basis in accordance with the individual needs of the specific parties.

Step 4 of the process requires the Court to consider whether a division is just and equitable.

It should be noted that even where parties agree to divide their property that the Court may not accept that agreement if it does not consider that it is just and equitable. Often clients say that they have reached an agreement that the assets be divided 50/50 even where one party’s needs are less than the other. Such as where one party is not working because they are staying home to care for young children. Even though the parties may have agreed to this, the Courts will not accept such an agreement if it is not just and equitable and accordance with the Four Step process.

Reported Cases Involved In

27th of October 2015 by Janeen Smithson


Smithson Lawyers Principal Lawyer, Janeen Smithson has been involved in a number of reported matters, including:

Don Collinzo & Don Collinzo [2012] FamCA 352 (17 May 2012)

FAMILY LAW – PROPERTY SETTLEMENT – where four step process of determining matter applied – where husband alleged that over $1.8 million of family money was unaccounted for by the wife – where husband alleged that sum should be added back to the pool of property for division – where there was an independent jointly appointed accountant to analyse and report on the husband’s allegations – where that expert’s evidence did not support the husband’s allegations – where husband’s allegations were rejected - where husband’s disclosure was incomplete – where substantial sums spent on legal costs by both parties were added back - where parties’ contributions assessed as weighing equally – where there is no adjustment for s 79(4)(e) matters

Summerby & Cadogen [2011] FamCAFC 205 (20 October 2011)

FAMILY LAW – APPEAL – CHILDREN – With whom a child lives, spends time and communicates – where the orders of the Federal Magistrate terminated all contact between the child and the father – where it was asserted that the Federal Magistrate erred in stating his conclusion before evaluating the evidence and considering the relevant statutory provisions – where it was asserted that the Federal Magistrate failed to consider Family Law Act 1975 (Cth) s 60CC factors – where it was asserted that the Federal Magistrate did not have sufficient regard to the benefit to the child of having a meaningful relationship with both parents; erred in finding the relationship between the child and the father was superficial; and failed to consider the long term effects of such orders or of the other options for the child to maintain a relationship with the father – where it was asserted that the Federal Magistrate failed to provide adequate reasons for his decision – where it was apparent from the Federal Magistrate’s reasons for judgment that he was aware of his obligations to consider all these matters and did so in detail – no merit found in any of these grounds of appeal.

FAMILY LAW – APPEAL – CHILDREN – Family Consultants – where it was asserted that the Federal Magistrate failed to give appropriate weight to the recommendations of the Family Consultant – the Full Court found the Federal Magistrate was not obliged to accept the Family Consultant’s recommendations and gave clear reasons for not doing so – no appealable error found.

FAMILY LAW – APPEAL – PROCEDURE – Contravention of Court order – where it was asserted that the Federal Magistrate erred in failing to hear contravention applications prior to the conclusion of the parenting proceedings – where it was conceded by Counsel for the father that at no stage during the proceedings did those representing the father ask the Federal Magistrate to hear the contravention applications prior to the determination of the substantive proceedings – no appealable error found.

FAMILY LAW – APPEAL – CONTRAVENTION – where it was asserted that the Federal Magistrate failed to impose appropriate sanctions against the mother – where no specific submissions were made by those representing the father as to what would have been an appropriate penalty – where the Federal Magistrate considered the penalty options available and gave reasons as to why none of them were appropriate – no appealable error found.

Chase & Green [2007] FamCA 1669 (6 September 2007)

FAMILY LAW – CHILDREN – With whom a child lives with – With whom a child spends time with – PACE alert. Also Hague Convention.

The Effects of Separation on Children

27th of October 2015 by Janeen Smithson


Separating – What About the Children?

Separating is hard enough but when children are involved it can be tough. No doubt most parents think about the effects of their separation on their children before they head down that road but what can parents do to make sure that their children are OK after separation?

Unfortunately, there is no way of knowing for sure how children will cope following their parents’ separation and there is no set of rules that can be followed to make sure children remain happy but there are things parents can do to help alleviate stress on children during this phase.

Firstly, children need to be told and shown that they are loved and supported. This may be as simple as listening to your child’s feelings, showing support for their feelings and trying to be understanding (even if you don’t agree).

Secondly, making sure children have a sense of stability. It may be inevitable that children will move home but if they can continue doing things they normally enjoy this can encourage the sense of stability. For example, continuing their team sport etc.

Thirdly, not making your children take sides or be a party to the separation. This sounds easier than it is. Separating parents can at times struggle with this as they want to convince their children to stay with them or agree with them about issues that the parents are disagreeing about. Instead of involving children in these issues, parents should seek the advice of professionals. Whether that is legal advice and/or the advice of a professional counsellor.

Relationships Australia offers counselling services for parents and children. Call Relationships Australia on 1300 364 277. Disagreements About Children

Separation can be even more difficult on children where parents are disagreeing about what will happen with the children after separation. Disagreements arise about a number of matters, including who the children will live with; how much time the children will spend with the other parent; relocating to other cities or countries; schooling or religious ideas etc.

Thankfully, many matters involving disagreements about children are able to be resolved through Family Dispute Resolution (FDR).
Family Dispute Resolution involves the parties making a genuine effort to try to sort out their dispute with the assistance of a Family Dispute Resolution Practitioner (which is a type of mediator) and, if they choose, also their lawyers.

The law now requires separating families who have a dispute about children to attempt FDR before filing an application before the Court. This has proven to be good for families as close to 75% of all cases filed in the Family Court are at least partly resolved through this process.

There are some exceptions to the FDR requirement, including where family violence is involved.

FDR gives parents an opportunity to discuss openly their concerns and be given some guidance and options from the FDR Practitioner and their lawyers (if they choose). Smithson Lawyers can assist you in the FDR process and help you to negotiate with your former partner the best solution for your children.

Domestic Violence - Enough Already!

14th of October 2015 by Janeen Smithson


When we look at the statistics for domestic violence we no doubt get the urge to yell “Enough Already!” One in three women dies every week from domestic violence and thankfully the laws are changing to recognise this.

Whilst those affected by domestic violence have been able to seek Protection Orders in the past, on 28 February 2015, the Queensland Parliament introduced a set of rules known as the Domestic and Family Violence Protection Rules which is making the process of obtaining those orders much easier to understand and hopefully more effective.

The key features of this legislation are the reduction of burdensome procedural requirements; the use of language that is easy to understand (less lawyer-talk); the rules now encourage consistency as well as requiring matters to be dealt with in a timely matter, which means less delays.

But although we see these changes in legislation those affected by domestic violence are not always willing or able to use it. This can be for a number of reasons, including fear, stigma, unsure if what’s happening is truly domestic violence or not having the financial or emotional ability to do so.

Thankfully, research into domestic violence is helping remove old stigmas about domestic violence. It is now clearly understood that domestic violence can occur in any family, regardless of their ethnic or cultural background, religious beliefs, sexual preference, age, gender or socioeconomic status. And although statistically, males are more often the offender we now understand that men can also be the victims of domestic violence.

But what is domestic violence?

Domestic violence includes:

  • Physical or sexual abuse

  • Emotional or psychological abuse

  • Economic abuse (ie. Using money to control)

  • Threatening behaviour

  • Coercive behaviour; or

  • Behaviour that in any way controls or dominates or causes a person to fear for their personal safety or well-being.

The Domestic Violence must be done by one person towards another person with whom the person is in a domestic relationship. This includes, husband/wife, defacto partners, boyfriend/girlfriend, relatives or a dependent.

If you or someone you know is being affected by domestic violence you can take action and stop it now. For support you can contact the Queensland Domestic Violence hotline on 1800 811 811 or visit their website at http://www.dvconnect.org/

If you believe you are in immediate danger, call 000 immediately.

Smithson Lawyers Gold Coast can help you to obtain a Protection Order. Contact us today to discuss your options. We understand that these matters are difficult and we will support you and give you all the help you need.

At Smithson Lawyers Gold Coast we want to give victims of domestic violence a voice. Speak out now!

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