Happy New Year! – Date claimer

Welcome to a New Year and a brand NEW public seminar series. Keep an eye out for the details for the new series starting on 26 February 2014. This public seminar series on the topic“Separation and Property” is not to be missed! For full details, see the next edition of the flyer or call us on 3221 4300 for more information.

“Close-up” Edition

With the start of the new school year, parents are often faced with many decisions. For separated parents, there is even more to consider – completion of enrolment forms, getting information from schools, attending school events, etc. To assist you with the start of the new school year – read “Getting Ready for School”.

Tips on surviving separation

Working through the emotional and legal stages of a separation are complex, but here are 3 basic steps that will definitely assist.

1. Stay calm: try not to make decisions in the heat of the moment. Make rough plans that meet your needs and keep any plans flexible.
2. Get help: it is importable to talk to someone about how you are going, we strongly recommend that you speak with a counsellor. It is also important that you get family law advice before embarking on arrangements for children and property division.

• Get a plan: having obtained advice it is important that you formulate a plan and stick to it. You will save significant time and cost by following your own pragmatic plan with your family lawyer and not being led by the agenda of your former spouse.If you have not obtained family law advice please contact us for a – no obligation – fixed cost ($330 incl. GST) initial appointment, phone (07) 3221 4300.

Airfares and contact

A recent case has considered child changeover arrangements and the cost of airfares where the parents live in difference cities.

• The parties met and married in Sydney. After separation the child of the relationship was born (now 9 years) and the mother and child moved to Canberra to live with her family.
• The mother returned to live in Sydney for a period of 3 years and during that time the father spent considerable time with the child.
• The mother again moved back to Canberra for 3 years before the matter was in court, during that time the child spent every third weekend with the father and part of the school holidays. The mother suspended the time for a period of 10 months following a disagreement. The Judge was critical of the mother’s actions and found that the suspension of the father’s time was unjustified.

• By the trial, the parents had agreed to reinstate the fathers time and the only issue was the practicalities of the changeover. The mother wanted the changeover at her house, while the father proposed a McDonalds which was approximately half way between their residences, or alternatively the child would fly to and from Sydney with the parties to share the airfare cost equally.
• At the trial the father was questioned about his previous evidence where he had proposed that he would pick the child up from Canberra and arrange for a flight for the child to return to the mother in Canberra. The father said that after making that proposal he had obtained legal advice to the effect that that proposal was not a fair arrangement for him, particularly as he believed the mother had a higher income than him.
• The court decided it would not be unduly oppressive for the father to drive to Canberra on one occasion every 3 weeks and pay the airfare for the child to return to Canberra at the conclusion of his time. Although the father claimed the mother had a higher income, the court found she did have the responsibility of being the child’s primary carer. The court ordered that the mother pay the costs of the return flight during the school holidays equating to 4 flights per year.

Spouse maintenance and the need to work

For a court to make an order for spouse maintenance it must be satisfied that the low-income spouse has a ‘financial need’ and that the other spouse has the ‘capacity to pay’. While a spouse may be able to show a ‘need’ for spouse maintenance, there is a requirement on that spouse to pursue employment if they can. A recent case has considered a wife’s efforts to gain employment.

The Facts:

• The couple separated after a 6 year relationship, they had no children.
• The wife was employed in two jobs, working a total of two days a week. Her weekly income was $200, and she alleged her weekly expenditure was $850.
• The husband had an income of $4,549 per week and a weekly expenditure of $3,077. The husband had a ‘capacity to pay’ the wife’s shortfall.
• The issue for the court was whether the wife was able to support herself. The husband claimed that the wife had the capacity to work more than her current 2 days per week. The wife said that she was not able to work on a full-time basis because she was suffering from stress and was not psychologically fit to engage in full-time employment, this was supported by a report from her psychologist.

Court Found:

• The court found that the wife was capable of working more than 2 days per week, and at least 4 days per week would increase her income to $400 per week. The court found however that this would still not be enough to support the wife adequately.

Court Ordered:

• The husband pay the wife $250 per week by way of periodic spouse maintenance until finalisation of property settlement proceedings.