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Family Law

Family Court, Facebook & social media – Avoiding trouble

Troll On Laptop Tom had decided that enough was enough. Feeling hard done by in his parenting matter before the courts, he decided to take to social media and attack all and sundry. No one was safe in his tirade as post after post criticised his ex-partner, the Judge and even the lawyers on both sides.
“I’d pretty much had a gut full of the family court and all the game playing and long winded rubbish that comes with it”. For Tom, venting on Facebook was his way of letting off steam to his friends about not being able to see his kids for many months. “Don’t get me wrong, I’m not some internet troll, I just wanted to let my mates and family know that what was happening to me and the kids was shitty”.

Unfortunately, Tom’s approach is an absolute no no when it comes to the court. When dabbling in social media you really have to be careful about what you post, regardless of whether you’ve got a family law matter in the courts or even a simple property dispute. Yesterday’s angry posts can come back to haunt you tomorrow!

Five Ways to Avoid a Family Law Disaster on Social Media

1. DON’T PUBLICISE YOUR FAMILY COURT MATTER
The Family Law Act is the law that guides the courts when it is making decisions about your matter. One thing it prohibits is publication of the details of family law proceedings. And by publication that doesn’t just mean mentions of your matter in newspapers, television and radio. Publicising anything about your matters before the court on Facebook, Twitter, Instagram or any other social media site is strictly forbidden. In fact, even if your an amateur blogger writing to a limited audience it is still considered a violation of the law [Section 121, Family Law Act]. It doesn’t matter how minor the proceeding is, even the simple issuing of a subpoena can not be talked about to third parties.

And while non-court-based family services, such as family counselling and family dispute resolution procedures, are not “proceedings” these services are subject to conﬁdentiality provisions so any communications made under these conditions should also not be disclosed to third parties.

In one case a father posted on his Facebook page photos of the mother and children and information identifying where they lived. The Judge regarded these postings as publishing, describing the father as having “caused to be placed in the public domain on a public Facebook page viewable by anybody who should choose to look upon them”. He concluded that the father’s actions were in breach of s 121 and ordered that he remove the posts and be restrained from posting on the internet or publishing any photographs of the mother or the children or any reference to, or comment about, the mother or the children or the proceedings.
The thing is, Section 121 is aimed at giving privacy protection for people involved in family law proceedings. And the court takes this seriously with penalties that include ﬁnes and even imprisonment for up to 12 months. Yikes!

2. POSTS CAN COME BACK TO BITE YOU
Posting on social media and is now affecting the outcome of family court cases on a daily basis. One Family Court Judge has stated that social media “is a veritable ‘Aladdin’s Cave’ which parties readily and regularly explore for incriminating ‘evidence’ to be used in litigation”.Whether it’s a parenting or property dispute you need to be ultra careful what you put out on social media to a potentially wide audience, which may include the other parties’ lawyer.

Posting when your away with the birdies on drugs or alcohol
A drunk night out with a mobile phone close at hand can lead to some inappropriate posting, but those morning after blues may hit you hard when your offensive ramblings or lewd pic posting is raised in court as evidence you’re an unfit parent.

fb post - dad and drinking Threats – whether meant or not
This should go without saying … But don’t threaten your ex on social media. Don’t even jokingly threaten them. It’s illegal and it can be used against you in Family Court (if not criminal court).
In a 2015 case, a father’s Facebook posts were found to be a deliberate attempt to intimidate the mother where he posted a person holding a gun with an indirect reference to his ex-partner.
In another matter, the mother relied on the father’s Facebook post of an image of a man assassinating a woman by shooting her and making her fall off a cliff. The Judge noted that this demonstrated that the father has no contrition or insight as to how such image could affect the mother.
So even indirect intimidation can highlight to the court problems with your character.
Posting about anything to do with an ongoing family court matter
In another reported case a status update from a mother was admitted as evidence in proceedings. The mother had posted on her Facebook profile:
“I was worried for a while there he wouldn’t turn up, but he was running late. I don’t care. I’ve still got my babies. Felt like being a smart arse and telling him to be afraid that I won’t take them back for another six months which would equal another $20,000”.
Here mum was found to have deliberately prolonged the proceedings with the above status update used as evidence. The Judge concluding that the mother had abused the Court process and had exploited the father by making him incur further legal costs and had wasted the Court’s time and resources. A $15,000 costs order was made against the mother. Ouch!
Publicising your poor lifestyle choices
In another case, a dad’s Facebook posts about his larrikin drunk flatmates left the Judge with no doubt that the father could not be trusted with overnight stays with his child. Despite the fact that dad had arrangements for overnight and weekend stays the Judge overruled the original orders due to the evidence presented about his posts. The Judge made future overnight contact conditional upon the father having his own residence. The Judge noted that: “Put simply I do not trust his choice of friends. This is apparent from the Facebook exchange. He says that none of the people he currently lives with participated in that exchange. But that is not the point. He is plainly happy to have extremely undesirable people as friends and acquaintances.

3. FACEBOOK FIGHTS AIN’T IN THE BEST INTERESTS OF THE KIDS
“He is a hopeless father”, “She is such a loser”, “OMG I hate him so much”
One of the Courts obligations is to consider the relationship of the parents and their ability to facilitate and encourage a relationship between the other party and the child. These sorts of comments hardly give that impression.
If the matter is already in court, one of the most common orders that a court will make is a “non-denigration order”, that is that neither party shall denigrate the other in the presence or hearing of the children. If your child is your friend on Facebook (not recommended) then this would constitute a breach of that order.

4. TWEETS AND POSTS CAN SPREAD LIKE WILDFIRE
Facebook Information can be shared very quickly. Even if you think your settings are totally private, another person can re-post photographs of you and make commentary about where and why the pic was taken. Other people are able to tag or identify you in photographs, even if you do not want to be tagged or identified. Reckless and irresponsible posts on social media can be used in court against you.
Your ex’s lawyer may be inclined to try to subpoena that information as part of the overall case, including any email sent to you as part of that Facebook account. They may also ask you in the discovery process (the pre-court stage where each party can demand information from the other) to disclose your Facebook account password and log in information, so they can see what is contained in those emails and the private parts of your Facebook account. So nothing really is sacred when it comes to fighting a family dispute in the courts.

5. KIDS ARE CURIOUS CRITTERS
Another pertinent reason why you should watch what you post on social media is the impact it can have on your kids.
It is not unusual for children to view the texts, emails and photographs on your mobile or computer. And remember that in doing this they could also discover things that might upset them, like stuff showing that your involved in an extra marital relationship or that you think their dad is an ass. These social media postings may be embarrassing and confronting for them. Their school friends may also have access to your social media postings which could lead them to possible bullying and ridicule. Don’t forget that in family law the primary concern of the court is whether something is in the best interests of the child.

Tips For Keeping Out of Social Media Trouble

If you have Facebook on your smart phone, delete the App before you leave home. This will remove the temptation to write anything about your former partner on Facebook and allow you some time to reconsider the photos that you post or comments you make.
Make sure you lock your social media accounts so your kids can’t see anything that might upset them. Plus if any of your content is potentially going to do this – remove it.
Tell your friends not to post any photos of you without your approval.
Change your password — Ensure that only you have the password to access your account. Check your privacy settings — Check who can see your profile and how much of your profile they can see.
Ask your friends that you have to first approve any “tagging” of yourself in photos.
Review your “friends” list and remove people if necessary — People whom you considered “friends” during your relationship may not be post-separation. Such “friends” may be waiting to take a screen shot of your slip ups.
Think before you post — Remember that everything you post has the potential to find its way into evidence in your proceedings.
Do not post about your proceedings or your former partner. Be child focussed. If you would not want a Judge to read it, do not post it!
Consider going offline — It may be best for you to avoid using Facebook (and other social media) until your Family Law proceedings have concluded.
And finally, don’t over share – parents need to be careful regarding the overuse of social media to share content based on their children, especially where the other parent doesn’t agree.

CLICK to > Find out what the deal is with CHILD SUPPORT

Family Law

All about child support

kid smoking with chicken What does the law say about child support?

The Child Support Scheme (CSS) began in 1988 and it’s job is to enforce the right of children to be supported by both their parents. The CSS is based upon the Child Support Act which requires 2 important things:

♦ That children receive the proper financial support from their parents (that they are liable to provide). So what that means is if one parent isn’t earning much while the other is doing much better, there will be a greater liability for the bigger earning parent.

♦ That periodic amounts of child support payable by any parent towards the upkeep of the children are paid on a regular and timely basis.

(The WA Parliament, because WA likes to have its own family law regime, has also created laws that adopt what the Commonwealth child support laws say.)

What if my ex doesn’t want to pay child support?

As mentioned, the law states that parents have a duty to financially support their kids (both birth and adopted). Even if one partner believes the child was an “accident” and doesn’t want to be involved, they are still required by law to financially support that child.

A parent is liable to pay child support if they are a legal parent of the child AND either a Resident of Australia, or a resident in another country that cooperates with our child support rules.

So who runs child support?

The Child Support Agency (CSA), and they are part of the Department of Human Services.

Their role includes assessing amounts of child support payable, with a slightly complicated formula but don’t worry because the assessment in essence takes into account the income of both parents; the care arrangements that you both have in place; and the number of dependent children you have (including any dependent kids from other relationships).

The CSA can also collect and transfer child support payments, when it’s requested by parents (or carers). Some parents don’t do this because they prefer a more direct and private way of paying child support that doesn’t involve the CSA having to handle the payments.

Making an Application – Parents

A parent can apply for a child support assessment for a child if they are not living with the other parent of the child as their partner on a genuine domestic basis. Parents can apply for an administrative assessment of child support for a child regardless of the amount of care they provide for their child.

When a parent makes an application for child support to CSA, it means that both they and the other parent will be assessed in respect of the costs of the children and the amount of child support payable will depend on the incomes of both parents and the percentage care you each provide for your children.

The percentage of care you undertake is important in the assessing child support and is usually determined according to the actual care that each of you have of the child. It also pays a big part in the formula used to decide how much child care you may be entitled to.

This actual care can be reflected in a care arrangement between the two of you or with non-parent carers. This agreement might take the form of a written agreement, parenting plan or court order in relation to a child’s care.

Parents are required to notify CSA about the care arrangements and agreements for the children.

Your income is another important consideration in working out the amount of child care to be paid to the primary carer. If either of your incomes and/or care percentage changes, it’s important to let CSA know. It may mean a new application for child support is needed.

If either parent is not a resident of Australia on the day of the application then there are additional considerations.
And it’s comforting to know that Australia has reciprocal arrangements with many countries around the world that will enforce your rights to child support.

So how do we make an agreement about child support?

Parents may make a child support agreement and can choose to organise collection themselves or collection by CSA. Parents can make agreements regarding the way in which child support is paid, for example through periodic cash payments, non-cash payments or a lump sum payment (including by way of property settlement).

Here’s some information on making a child support agreement

There are two types of agreements: binding child support agreements and limited child support agreements.

The main difference between them is that parents are not required to obtain legal advice before entering into a limited child support agreement. These limited agreements can also be terminated if you both agree, and if not, by a court order. Also, the amount of child support payable in a limited child support agreement can’t be less than the amount calculated in your child support assessment.

Find out more about limited child support agreements HERE

Find out more about binding child support agreements HERE

Both these agreements must be in writing and signed by both of you and any other person taking a major role in the child support who is part of the agreement.

HERE is the official form the government provide for a child support agreement – read up about what you need to know before you both fill it in and agree to it.

Applications from non-parent carers

A non-parent carer can apply for an administrative assessment of child support for a child but they must be an eligible carer of the child and are not living with either parent as a partner on a genuine domestic basis and don’t have care jointly with a parent of the child. If this situation applies to you, talk to the staff at the CSA.

old calculator Estimate what your child support may be with this CALCULATOR

(You should not rely on an estimate as a guarantee for future income or payment.)

When does child support end?

There are a few scenarios when child support ends:

♦ Normally child support will end after your child has turned 18. It is possible for child support to be extended after 18 years of age if you apply for child support to continue until the end of the school year during which your child turns 18. Additionally, if your child has a physical or intellectual disability, extensions may also be possible.

♦ if your child is adopted by someone else.

♦ If your child marries or starts a de facto relationship.

♦ If neither of you is caring for the Child

♦ If you both restart your relationship.
It’s also important to note that just because a child starts working before 18 that doesn’t mean you automatically stop paying child support. However, if you are in a situation where your child is over 18 and still requires support, you definitely have grounds to appeal any assessed amount if that child is earning money.

What if my child needs help but is over 18?

Generally, older children who live independently and separately from their parents or carers provide for many of their own needs. However, where a person provides substantial financial support to an older child living away from home, the Registrar will generally consider that financial support as an indicator that the person is continuing to provide care for the child.

Other resources

The Department of Human Services (Child Support) also provides some handy information for all parents (whether married, de facto or same sex) on how the child support assessment works.

Don’t forget to check out all the great family law solutions we have for you > HERE

NEED HELP?

If you are having difficulties getting a fair deal with child support from your ex and you need to apply to the court we offer a low cost service in preparing any applications you might need.
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UPDATED APRIL 2019

Family Law

De facto Property Settlements

couple separate on couch If you have a financial agreement

If you both have a financial arrangement in place when your relationship ends, you must stick with what you have agreed to with regards to how your property and financial resources are to be distributed.

As these types of agreements are binding, it is difficult, although not impossible, to change or overturn them. There are some exceptions to this which include where the financial agreement wasn’t made with your full cooperation or where the court finds (after you have made an application to it) that the financial agreement isn’t fair and equitable.

The full list of exceptions are mentioned HERE.

Check out HERE what else Aussie law says about these agreements

You can make a financial agreement at any time during your relationship, even when it is coming to an end.
Having a financial agreement that you both agree on is helpful as it can speed up the finalising of your property and financial settlement, and also keep the matter from going to court.

Here’s a great video from our friends at Legal Aid:

When you don’t have a financial agreement

If you haven’t made a financial agreement or you don’t think you’ll be able to work out one, you can make an application to the court for a property settlement. (You would both normally do this with the help of your lawyers.)

When seeking a decision from the court, the date of your separation is important. You must lodge your application for a property settlement with the court no more than two years from the date of your separation. After this time you need the court’s permission to apply.

It is also an important date because the court can assess the assets, liabilities and financial resources as at that date.

On this point about the end date…

♦ If you have a registered relationship and you have made application to end it, once the 90 day cooling off period is over, the Registrar will officially revoke your relationship.

♦ If you haven’t got a registered relationship don’t worry, but it is advisable that you keep a clear record of the date of separation even if it is by way of email, SMS or even a social media post. And when you make a statement this way keep it very matter of fact as nasty comments can later be submitted to a court particularly when parenting issues are being worked out. Alternately, you could simply advise a lawyer.

What happens if we go to court?

empty courtroom You can generally make a claim for the court to divide property within two years of the relationship breaking down, and sometimes you can even bring a claim if more than two years have passed.

Before the court can determine your financial dispute, you must satisfy the court of all of the following:

◊ You were in a genuine de facto relationship (either registered or not) with your former partner, which has broken down

AND…

◊ You meet ONE of the following four criteria:

• That the period for the de facto relationship is at least 2 years

• That there is a child in the de facto relationship

• That the relationship is or was registered under a prescribed law of a State or Territory

• You’ve made substantial financial or personal contributions which you won’t be adequately compensated for unless the court makes an order.

AND…

◊ You have a geographical connection to the court handling the matter. This means that it’s important (but not essential) that the court be in the State you currently live in, or where your relationship was based.

AND FINALLY…

◊ Your relationship broke down after 1 March 2009 (or after 1 July 2010 if you have a geographical connection to South Australia only); although in some cases you might be able to apply to the courts if your relationship broke down prior to these dates.

Double check with a lawyer as to whether you fit these criteria before applying to the court.

When a court divides property it takes into account both people’s financial and non-financial contributions to the relationship.

And by non-financial I mean it will look at how you divided up household chores, property maintenance and even the contributions you’ve made as parents.

For de facto couples in particular, it will also take into account the amount of money both you and your former partner earned and will consider any differences in your future earning capacity AND your obligations to care for the children.

Take a look at the fact sheet from Relationships Australia, When De facto Relationships Breakdown, which provides more information about whether you are eligible to make an application for financial matters in the Family Court or Federal Circuit Court.

And what can the court do?

The Family Law Court or Federal Circuit Court can order a division of any property that you both own, either separately or together with each other. This includes superannuation (see the section underneath about super splitting) and spouse maintenance.

………

What about my superannuation?

It never fails to surprise me how many people believe that their super is theirs alone and can never be touched even when divorce or the end of a relationship is near. However, when it comes to property settlements, it’s about getting an equitable division of ALL the assets. In a nutshell, everything is on the table.

man_counting_stacks_of_money_black_and_white When it comes to super you do have the option of sorting out how the division or ‘split’ of your super should occur. Couples who have separated are able to make an agreement – known as a superannuation agreement – about how any superannuation that either party will receive is to be split.

(WA is exception here, with de facto couples in Western Australia not being subject to the superannuation splitting laws.)

By the way, if you don’t get legal advice the super agreement won’t be binding on the trustee of the superannuation fund.

You can both make a superannuation agreement either before or during your de facto relationship, which states how any superannuation will be split on the relationship breakdown. Because superannuation is different to other property, there are special rules about what a superannuation agreement must say. Provided that a superannuation agreement complies with the legal requirements detailed in the superannuation splitting laws, the agreement is binding.

And when it is binding, the trustee of a superannuation fund must by law implement your agreement. And binding also means the court is not able to make any orders about superannuation.

Here’s a helpful superannuation info kit provided by the Family Court.

What does my payment splitting agreement have to say?

The payment splitting agreement has to say how the superannuation interest is to be split in order for it to operate effectively. Generally, a payment splitting agreement must specify:

• An amount- known as the ‘base amount’.

• A method for calculating the base amount, or a percentage that is to apply to all splittable payments made in respect of the superannuation interest.

(And your entitlement under any payment splitting agreement depends on what the agreement says.)

What if we can’t agree on super splitting?

If despite all opportunities to negotiate both between yourselves and your lawyers you are both unable to agree, then the court is able to make an order about super as part of any property settlement order. This will state how any superannuation is to be split and that order is binding on the trustee of a superannuation fund who must comply with it.

Take a look at what the court considers when it has to make an order because you can’t agree on super (and other property matters).

Pets

Pets can often enter the negotiation when property arrangements are being worked through. It is possible to organise formal custody agreements and/or visitation rights so time spent with Fido or Miss Whiskers is fairly divided. It is best to draft an agreement between yourselves as these matters are seldom heard in what are already congested family courts.

We occasionally get asked to do these agreements and if you both are in agreement about what sharing you would like to do, contact us and we can have a chat about putting together a binding agreement relating to those precious kitties, pouches …or whatever lovely one is a part of your family.

If you are having difficulty coming to an agreement then we can propose some solutions to help work out something that is mutually acceptable.
Drop us a message via Facebook Messenger
or if you’re ready to go, make an appointment HERE.

Oh and don’t forget, you should also advise all relevant government agencies (eg Centrelink, Medicare) of any separation as this could be relevant to any benefits you might be entitled to and child support.

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Family Court, Facebook & social media – Avoiding trouble

All about child support

De facto Property Settlements

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