When you separate, there are so many things to consider.  Obviously if children are involved the primary focus is making sure that they feel loved by both parents. Initially, your immediate considerations revolve around their living arrangements.  Will they live with mum, dad or a combination of both?  Will they continue to live in the house that they know, or will circumstances necessitate a move somewhere new.  Lastly, the question of when and how they will they see each parent emerges.

You are doing well if you manage to work out these arrangements without hitting too many speed bumps along the way.  However, even the best negotiated arrangements can hit a wall when it comes to special occasions. What happens when both mum and dad want to spend time with the children at the same time?   Special events, such as birthdays, Christmas, and Easter may become tricky without some forward thinking.

The usual and best approach to avoid any feelings of disappointment on these special occasions is to suspend the usual care arrangements for that day.   Rather than leaving the planning to the last minute this is one situation where planning needs to occur a few weeks (or even a couple of months) before the event.  While it may help to speak to other separated families for ideas on how they deal with these events; what your plan will look like will depend on the unique dynamics in your family.  Unfortunately in the world of split families there is no such thing as a ‘one size fits all’ arrangement.

Of course, in families where there exists good communication, negotiation can be easier, with parents managing this independently.  However, when this is not present, or if negotiations turn ugly, or fail to move forward, it can be worthwhile to seek to professional support from a skilled family lawyer, to mediate an equitable solution that best serves the needs of the children, parents and their extended families.

For compassionate, family first, legal advice speak to Joanna Diamantopoulos at Welden & Coluccio Lawyers. 

 Because We care and because Your family matters.

It is a sad fact that, with the Christmas season over, many couples move into the New Year with a plan to go their separate ways.  Certainly, once the children head back to school it is not unusual for lawyers to be inundated with queries from people who need legal support during this time.   Admittedly, supporting families through this experience is one of the saddest and confronting aspects of my job.  While all legal matters have the potential to be emotionally draining, this is exacerbated in family law matters, particularly where there  are children involved.

While there are many things to consider during a separation, there are a few key financial considerations which have the potential to slip through the cracks, but which need to be addressed, if individuals wish to move forward positively in their new life as a single.

Some of the key documents, often ignored or neglected by individuals in this situation include:
Wills & Other Estate Planning Documents: People do not realise that when you separate from your partner, this does not revoke any nomination as executor or beneficiary in your Will. Divorce does not protect you from your former husband being eligible from receiving some of your assets on your death.

It is critical that upon separation, you make a new Will with a solicitor.

Superannuation Funds: Divorce or separation will not revoke a binding death nomination made in your superannuation. It is important to be aware that if a new binding nomination is not made this could mean your ex-partner may receive your superannuation balance should you die prematurely.
Simply nominating your young children as beneficiaries in your superannuation will not necessarily eliminate the possibility of your ex-partner receiving this money should you die prematurely. As the legal guardian of your children your ex-partner will have complete control over the balance which your children will receive.

Insurance Policies: It is important to know that separation or divorce does not change the beneficiaries who you have listed as beneficiaries on your insurance policies.
You need to ensure that the people/person who you nominate as the beneficiaries will be taking direct benefit of your nomination.

At Welden & Coluccio Lawyers we will assist you through this emotional time, helping you to understand all your financial and estate planning options.

The decision to go your separate ways can be a heart wrenching one, not least of all for any children involved in the split.  In the midst of moving and legal dramas it is important for separating couples to consider carefully the process, the impact of this on your shared children and to develop a strategy to protect their wellbeing during what is inevitably a vulnerable time.

When speaking of children I make no distinction between a child of 5 or a teenager of 15.  Indeed, a marriage breakdown can be traumatic for any child irrespective of age.  Even adult children can react adversely to the news of their parent’s separation.  Consequently, when going through a separation, it is important that you consider the ages and developmental stages of the children involved and act accordingly.

Pre-schoolers & Primary Aged Children

Very young children frequently lack the ability to articulate clearly their feelings about the separation of their parents.  As such their behaviours will often reflect the insecurities they are experiencing and possibility their frustration at not being able to meaningfully make sense of and express their thoughts about the changes in their lives.  Parents may notice regressive behaviours.  For instance, a previously weaned child may seek comfort with a bottle, breast or pacifier.  Similarly, a toilet-trained child may have accidents.  During these times it is also not unusual for new behaviours, such as bed-wetting, tantrums, stealing, angry outbursts to emerge, or for existing behaviours to worsen).  It is advisable to seek support with skilled professionals in these instances (psychologists, counsellors) and it is certainly worthwhile to remain in conversation with the family GP who can help to gain an overall understanding of the child’s physical and emotional well-being.

It is important that parents use simple language to communicate to their child in an age appropriate way, the reasons for the separation, identify what this means practically for the child along with a strong emphasis upon what will not change (the love both parents feel for the child).  While the specific circumstances of a separation may make it difficult for you to speak of your ex-partner in a positive light, it is critical that parents avoid the temptation to use their child as the vehicle for venting their feelings.

It is recommended that parents inform other carers of their children about the separation (eg Director at the Child Care Centre) so that they may provide additional support for your child as needed and so they are aware of any changes to the logistics of collecting children and contacting parents. For children in a primary setting it is important to inform the school of the situation and also speak individually with the child’s class teacher.  Many schools have access to onsite counsellors and, this, along with the support of teachers and staff can be invaluable in negotiating the challenges should they arise.

Secondary School Aged Children

Older children may react to the news of a separation in a range of ways.  While some teens may respond with anger, others may express feelings of grief, relief, a general apathy to the situation or they may become socially and emotionally withdrawn.   As with younger children, it is again important to discuss the situation with the child, adapting the language to suit the age.  However, unlike with younger children, teens will often expect to have a voice in how the separation will impact on their life.  Ideally it is best to negotiate arrangements in conjunction with teens and to recognise the importance of preserving their social connections and activities.

Of course a real concern here is when parents use their teenage children in the role of counsellor.  Remember any child going through their parent’s separation will be dealing with their own feelings.  It is unfair to place the burden of your emotions on their young shoulders.

As with younger children it is important to notify your child’s school of the situation.  Secondary schools are usually well equipped to deal with any issues that may emerge however this works best when there is strong communication between home and school.

 Adult Children

While adult children, living at home or not, can normally be expected to take responsibility for their own well-being, it is important to recognise that the news that their parents are separating may be accompanied by a sense of grief and loss.  Where adult children are still residing in the family home it is highly likely that the separation will directly impact their life and plans.  It is advisable to take the time to sit with your adult children and discuss your decision.  While adult children may not be directly impacted by the separation in terms of living arrangements other issues, including the future dynamics of family gatherings and events may need to be addressed.

In Summary

While the decision to separate from your spouse is a highly emotional one for you personally, it is important to consider the other lives immediately affected by this decision.  Children, irrespective of age will, encounter similar feelings of grief and loss and require time and space to digest and adapt to their change in circumstances.   As a parent, the manner with which you negotiate this critical time will have a lasting impact on the well-being of your child.  It makes sense then, to invest care and consideration into the way this is done while adapting to the developmental needs of the child concerned.

I went to school with a girl who changed her surname at least twice during the course of her time at primary school.  What started out as a single name, Smith*, became Smith-Jones* when her mother remarried.  Later, as I vaguely recall, the Smith bit disappeared and she added her mother’s maiden name Christianson*.  Many years later as an adult I bumped into her at a bar and learned that she was using another surname entirely.  As so happened, she had recently discovered that her paternal father was neither Smith nor Jones, but some guy by the name of Williams and so she had elected to adopt that name.  Confused?  Me too.

You see names are integral to our identity and sense of self.  Together with our first name they form part of our personal story, connecting us with other family members and allowing us to trace our personal lineage. Of course, as the scenario above illustrates, there are times when parents (or individuals themselves) seek to change the name which is registered on the birth certificate.  By far the most common situation when this occurs is when a relationship fails, following which the birth father is absent and the mother re-marries.   With an absent birth father, and the step-father assuming the parenting role, possibly along with the birth of additional children to this new union; the mother of the child approaches a solicitor with the desire to unify her family beneath the same surname.  Of course we see variations of this scenario, and it is not always the mother seeking the name change, but you get the idea.

So is such a change possible legally, and if so, how does one go about this?  Before I get to this, there are many instances where a child’s surname has been changed informally and without the consent (or knowledge) of the other parent.  Welden & Coluccio Lawyers recommends any individual considering this as a course of action proceed with extreme caution. The informal changing of a child’s surname to one different to that cited on the birth certificate could result in litigation between both parties.  Since litigation is best avoided at all costs it is recommended that the parent seeking the change make contact with an experienced family lawyer who can assist with the process.  Initially this process involves registering the change of name with the Births, Deaths and Marriages office.  In order for this to be approved both parents must agree to the change.  In the event that this is not given the remaining option is for the parent desiring the change to commence Court proceedings in which case the dispute can be resolve by a Judge.  It is interesting to note that in the recent case of Reynolds & Sherman (2015) FAM CAFC 128; the changing of a child’s surname was rightly recognised as a substantial issue and a matter of “real importance”.  It follows then that any move to change a child’s surname is undertaken with caution and time for consideration of all the issues must be allocated for by the Court before any decision regarding such a change can be made.

*Names have been changed.

As solicitors we brace ourselves for this news. Too frequently there is concern, that the filing fees will become so excessive that our clients will not be able to afford them. Yes, having a concession card helps, yet even then some struggle to pay those fees. Of course not every client holds a concession card. The reality is that while many family law clients are asset rich they are cash poor and suffer a very real battle to spare any additional funds from the weekly budget. It does become a struggle to find that extra money.

Last year, when the proposed fees for 1 July 2015 were announced and indeed implemented (blink and you missed it), the fees were significantly increased to the point of ridiculous. Furthermore, new fees were established. For example, the filing of an amended application, a common practice that is used in all jurisdictions, would incur a fee.

I know I was shocked at some of the fees, especially the fee increase for filing an Application for Divorce which was set to rise from $845 to a staggering $1,195. That is an increase of $350! This fee does not factor the further cost incurred to personally serve the Application if a private process server is necessary.

Fortunately for both solicitors and clients, the senate voted in favour of disallowing the fees. Solicitor’s rejoiced and the new filing fees were tossed and the old filing fees were reinstated. We are now nearly 7 months into the financial year and there still hasn’t been any update as to the status of the Court filing fees. No doubt there will be new increases on the horizon. . . . we will just have to wait and see!