DEALING WITH THE RULE BREAKERS
When a court puts parenting orders in place, it’s often the result of a long process involving weighing up the evidence presented by both parents via their applications, affidavits and at the hearings. Normally, by the time these orders are worked out and formalised by the court, there has been an enormous emotional and indeed financial investment by one or both parties. 
And court orders regarding parenting are the lesser road travelled.

Most mums and dads manage either through respect for each other or an awareness of the potential damage delays in organising shared parenting can cause to children, get down to working out either an informal agreement or an agreement by consent.

 The difference is a parenting order is made by a court whereas a less formal parenting plan is a written agreement that sets out parenting arrangements for children. A parenting plan is not legally enforceable whereas parenting orders are.
Some folks work out an agreement but still want the courts involvement. So they take their agreement to court and ask for “consent orders”. Here, both parties work out how the parenting is to be shared and then get down to putting this in writing. This is normally with the help of a lawyer who gives the judge a document called “consent minutes” which detail the exact way the parenting will occur from drop offs and pickups, where the visits or stays will occur, and time shared during holiday times, birthdays. I like to think of this method as I sort of trust you with our agreement but I want the court to look at it, seal it and in a way hold us to account over what we have agreed to.

However, when all negotiations between parties fail and you can’t work out how the parenting will be conducted, you need to go to court so they the judge can look at both sides of view (and the best interests of the children) to devise your parenting orders.

Parenting orders that are worked by the court with overriding perspective of the best interests of the children. If your fight is over petty things this will not be important in the court’s eyes.
 And these orders, apart from stating the usual organisation things like what times and how parenting is to shared, can also set out more serious commitments that may need to be made by a parent. Examples of this might include the need for regular drug testing, the need for parenting to be supervised and even restrictions on where a parent may travel with a child.

Once these orders are in place mums and dads must follow the orders made by the court. If you believe the other parent has not complied with an order, you can:

• Seek legal advice
• Attend family dispute resolution
• Apply to the courts for new orders, or if it is very serious, a contravention order.

  Please note you cannot e-file a contravention applications

Seek legal advice
You should seek legal advice before deciding what to do. A lawyer can help you understand your legal rights and responsibilities, and explain how the law applies to your case. A lawyer can also help you reach an agreement without going to court. You can seek legal advice from a legal aid office, community legal centre or if you have the bucks, a private law firm. Court staff can help you with questions about court forms and the court process, but cannot give you legal advice.
 At The Legal Eagle, we can also help you prepare your applications for a very moderate cost.
 You can make an appointment HERE.
Attend family dispute resolution
Family dispute resolution can help you and the other party work through your disagreement. Resolving issues this way is less formal than going to court and should cost less in cost, time and emotion. As both parties work on the solution, the agreement is likely to last longer.
 Even if you have been down this road previously it is still worth trying as the potential cost savings of solving problems this way is worthwhile.
Make a contravention application
So for what sort of things can you seek a contravention application?
A parent is normally found to have contravened an Order where they have either:
a) Intentionally failed to comply with the Order; or
b) Made no reasonable attempt to comply with the Order.

When drafting a contravention application, it is important to specify whether you say the other party either intentionally failed to comply or made no reasonable attempt to comply.

And if you are making the application in a contravention matter must show the Court that:
a) An Order exists (whether an interim or a final order); and b) The respondent has contravened the Order.
You must state, clearly and concisely, the facts you rely upon to demonstrate the contravention. If you allege that more than one order has been contravened, or that an Order has been contravened, or that an Order has been contravened on more than one occasion, deal with each alleged “breach” separately.
Making one statement to cover all alleged contraventions, as happened in this matter, is not advisable.
 And be careful not to be petty with applications that are based on a parent on a couple of occasions missing a handover by half an hour. Another one I remember was a parent who always thought the other parent had been drinking when they had the child. No real evidence here, just suspicion mixed with the usual dose of contempt.
These sort of things just won’t fly in court.

The Court deals with Contravention Applications in a strict manner, due to the penalties that can be imposed. As a result, it is important to get your Contravention Application “technically” right from the start. In a recent case, the Court dealt with a Contravention Application by the Father which alleged that the Mother had breached three parenting orders by “obstructing the organising of time between the father and the child”.
The Father’s application did not contain any specific allegations relating to any of the Orders that he alleged had been breached. The Court found it was “vague” and in “generalised terms”.
Ultimately, the Court found that the Father had not established a contravention by the Mother, on any of three counts.

Costs in contravention proceedings
Costs can be awarded in contravention proceedings that affect children but it can run both ways.
If the Court decides that a ‘more serious’ breach of an order has occurred, it must order costs against the person breaching the order, unless it would not be in the child’s best interests. If the Court dismisses a contravention application or finds that no action is required, and such a finding has been made previously, it must consider ordering costs against the person who filed the contravention application.
Before filing a Contravention Application, consider the result that you want to achieve. The remedies available from the Court range from the enforcement of an order to the punishment of a person for failure to obey an order. For example, the court may make an order that:

• ensures the resumption of the arrangements set out in an earlier order;
• compensates a person for lost contact time;
• varies an existing order;
• puts a person on notice that if the person does not comply with an order, the person will be punished

And remember if you don’t actually want the other party punished (eg. fined or imprisoned) for the breach but rather want a speedy remedy to ensure the resumption of the arrangements set out in an earlier order, you may be able to file an Application in a Case rather than a Contravention Application.

To find out what happens at a Contravention hearing click the link below:
https://www.legalaid.nsw.gov.au/publications/factsheets-and-resources/my-ex-partner-isnt-following-the-court-orders-about-our-children-what-can-i-do/the-contravention-hearing

To get help from The Legal Eagle with your document drafting, make an appointment HERE.
Please note we do not provide legal advice.

Everyone wants to be good neighbours and when they aren’t, life can be hell. It’s not until something goes wrong with a tree, fence, noisy dog, noisy neighbour or retaining wall that relationships can turn sour.

Fences are the No.1 cause of disputes among neighbours. The Dispute Settlement Centre of Victoria (DSCV) found that 38 per cent of the neighbourhood disputes were over fences.

A timber fence that was erected 40 years ago when the land was subdivided may now be showing signs of rot. According to the law, neighbours have to come to a solution on a “sufficient dividing fence” and pay half each.

Disagreements arise when neighbours are deciding if it should be fixed, replaced, what the colour or height should be and the cost. One neighbour may think it would be fine to fix a few palings, while the other may want the whole side replaced.

Problems also arise with agreeing to what is “sufficient”. The fence may need to be higher for one neighbour due to privacy, or to contain a pet. If one neighbour wants a fence that is more expensive, then they have to pay more than the other neighbour, which again can lead to arguments.
Find out about your rights under the law and remedies with fencing – HERE

Amanda Hickey is a mediator and helps neighbours come to a resolution. She finds many fencing disputes are about where to erect them and getting a surveyor to determine the exact boundary line, which costs money that no one wants to pay.

“You find older people stay in their house for a long time. They seem to be attached to their fences and they have a whole story about why it should be in spot X but it’s in spot Y,” she says.

Noise complaints come in second place as a cause for frustration for neighbours.
In NSW, 18 per cent of all neighbourhood disputes handled by the Community Justice Centre (CJC) were noise-related and of those, 57 per cent were barking dogs.

If the noise is late at night or very loud and excessive, the police can be called. But what if the dog barks every morning when the owners leave for work?

What if the neighbour’s child starts to learn the drums and plays every afternoon when the nearby baby is trying to sleep?

Power tools in the early morning and air conditioners running all night are other causes of friction.
And of course there is the endless barking and carry on from some unneighbourly dogs.
Find out about what you can do about neighbour noise – HERE
And crazy out of control dogs – HERE

The third largest cause of friction among neighbours is trees. In Victoria, complaints concerning trees account for 17 per cent of all disputes. A jacaranda planted 15 years ago may look lovely until the branches start growing over the neighbour’s fence, blocking views.

In 2017, of all NSW tree disputes, 68 per cent were applications concerning a tree causing damage to a property or injury to a person, while 32 per cent were applications concerning a hedge severely obstructing sunlight or views.
Even a beautiful jacaranda tree can cause neighbourly disputes.
Also, root systems don’t adhere to property boundaries. Roots can grow under fences and disrupt the pipes of neighbouring households.

There are no simple rules about who is responsible for pruning or cutting down a tree that affects neighbours, which can cause more disagreements.
Check out your legal rights and remedies concerning trees and fences – HERE

Adrian Mueller is a strata lawyer and finds the fourth, and the most difficult, dispute among neighbours is retaining walls.

The lack of legislation and the expense to fix a retaining wall means neighbours can spend a long time in court trying to come to an amicable resolution.

“They take a long time as there is a lot at stake. If it is about to collapse, one day there is a big storm and it comes crashing down,” he says. “The clock is ticking, it is not covered by insurance and no one wants to pay for it.”

With thanks to Melissa Gerke

While de facto couples may be able to assert some of the same rights as married couples, they often have to expend significant time, money and unnecessary heartache to do so. Marriage allows people to access a complete package of rights simply by showing their marriage certificate or ticking a box, and is based on their mutual promises to one another rather than proving their relationship meets particular interdependency criteria. Unlike de facto relationships, marriage is recognised nationally and internationally

Differences under the law
The laws regarding de facto couples differ between states and the commonwealth, and from one right to another.

For Centrelink purposes, you are a de facto couple from the moment you start living together; for migration law it is after 12 months of cohabiting (unless you have a child together or de facto relationships are illegal in your country of origin).

Under family law it is different again: a minimum of two years (unless you have a child together, have registered your relationship, or have made significant contributions to the relationship)
Where married couples use IVF, both spouses are automatically legal parents. But for de facto couples using reproductive technologies, their child’s parentage depends on whether a de facto relationship is proven to exist.

The laws regarding de facto couples differ between states and the commonwealth, and from one right to another.

For Centrelink purposes, you are a de facto couple from the moment you start living together; for migration law it is after 12 months of cohabiting (unless you have a child together or de facto relationships are illegal in your country of origin).

Under family law it is different again: a minimum of two years (unless you have a child together, have registered your relationship, or have made significant contributions to the relationship).

Where married couples use IVF, both spouses are automatically legal parents. But for de facto couples using reproductive technologies, their child’s parentage depends on whether a de facto relationship is proven to exist.

Couples who are or were married must file for property and/or spousal maintenance proceedings in the family court within one year of finalising a divorce, but have the option to agree to an extension of time in which to file. No such provision exists for de facto couples; they must file proceedings within two years.

In many states, a new marriage nullifies an existing will, unless that will was quite specifically worded. This is not the case when you enter a new de facto relationship. In the latter situation, if you die before making a new will, a court might need to decide how your assets are allocated (with costs borne by your estate).

In all contexts, de facto relationships require significant proof, which means partners may have to provide evidence about their living and childcare arrangements, sexual relationship, finances, ownership of property, commitment to a shared life and how they present as a couple in public. These criteria can be absent from a heterosexual marriage, but it is still deemed a marriage.

Despite the wording in the marriage ceremony that marriage “is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”, it is up to married partners whether or not they share their finances, their housework, their childcare responsibilities, their homes or their beds, and how long they want to stay married.

De facto relationships require significant proof, which means partners may have to provide evidence about their living and sexual relationship, criteria absent from a heterosexual marriage.

‘Registered relationships’ – separate but equal?
Many states and territories have legislation permitting couples to register their domestic relationships – the exceptions are the Northern Territory and Western Australia.

To register, you first need to prove that you meet the criteria – for example, providing “personal or financial commitment and support of a domestic nature for the material benefit of the other”. Where marriage delivers rights based on a couple’s promises to one another, registered relationships still require proof that a relationship meeting the criteria already exists.

Such registered relationships are not reliably recognised overseas.

When does it matter?
While married and de facto relationships largely have equal standing before the law, only marriage is immediate and incontrovertible.

Difficulties for de facto couples arise from the complex inter-relationship between the “burden of proof”, institutionalised homophobia, and the sticky situations that can often arise in interpersonal or family conflict.

For example, a person in a de facto relationship might need to prove their relationship:

♥  if their partner is very ill, in order to make decisions about their care and treatment (this can be prevented by having another piece       of paper – an enduring power of attorney);
♥  if their partner who has died, in order to be listed as their spouse on a death certificate or to be involved in funeral planning (being       listed on a death certificate is critically important when it comes to claiming superannuation payouts and myriad other issues); or
♥  if their partner has died without leaving a will.

Sadly, the times when marital status matters most are likely to be times of grief or high stress. To compound this, there are many examples of a couple’s de facto status being challenged by one partner’s family of origin. Marriage, on the other hand, is undeniable.

Unmarried de facto couples often experience difficulties attaining residency and/or working rights overseas. Married couples rarely experience these problems.
Prior to marriage equality laws being passed in Australia, same-sex couples  had all the same obligations as married couples – to pay taxes, child support and so on. But they didn’t have the ability to marry – to enjoy the symbolic and emotional effects of entering into a legal union with their partners before friends and family, or enjoy the legal security of having one document to confirm the legal status of their relationship. 

So de facto status is slightly different to being married, but at the end of the day it is up to the couple to decide which alternative best works for them.

With thanks to Hannah Robert, Fiona Kelly and The Conversation.

For more information on marriage, de facto relationships, separation and divorce…
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