During financial proceedings before the Family Court, each party has a duty to disclose documents, evidencing their financial position so that a family law property settlement can be negotiated. It is likely that you will have to exchange and come into possession of your former partner’s bank account and credit card statements, taxation returns, pay slips and superannuation statements.  

 

In addition, when parties have financial proceedings before the Family Court, they are required to file a document called a Form 13 Financial Statement. Sometimes, the information provided by a party on the Form 13 Financial Statement can be different to what that party has told the Child Support Agency about their financial circumstances. 

 

Sometimes, parties think it is okay to provide documents that they have received from the other party to other people or the Child Support Agency. This is incorrect and you may find yourself in trouble if you share documents obtained in Family Court litigation or Family Law negotiations, for other purposes unless the Family Court has given you permission to do so.  

 

The reason why you cannot provide your former partner’s documents outside of the Family Court proceedings is because of the Harman principle, or Harman Undertaking as it is sometimes referred to. 

 

So, what is the Harman Principle?  

 

The Harman Principle (or Undertaking as it is referred to at times), was established in 1983 in the case of Harman v Home Department State Secretary [1983] 1 AC 280. Basically, the Harman Principle is an implied obligation that parties to proceedings will not use documents obtained in litigation for any other purpose.  

 

The reason that the Harman Principle exists is to encourage parties to Family Court proceedings to provide full and frank disclosure, without fear of it being used against them in other proceedings.  

 

Since the Harman Principle, the Family Court has also made special rules about the use of documents, which applies to all parties in Family Law matters. If you would like to review the specific rule for yourself, it is Rule 203 of the Family Court Rules 2021. 

 

Only the Family Court can discharge the Harman Principle in Family Law matters, meaning that even if the other party gives their permission for the documents provided by them to be used for another purpose, the Family Court still needs to provide their authority for the documents to be used outside the Family Court proceedings.  

 

If you were to use the documents obtained during the Court proceedings, for another purpose then it is likely that you would be found in contempt of court. The punishment for contempt of court is imprisonment, a fine, or both.  

 

The above is not intended to be legal advice.  

 

If you need advice in relation to proceedings in the Family Court of Western Australia, please contact us on (08) 9221 2666 or reception@calverleyjohnston.com.au to make an appointment to speak to one of our solicitors.

Tip 1 – Make time for “date night”, or if you have kids, “Family Fun Day” 

 

One of the most common complaints that we hear from separating couples where one of them works FIFO is that time was never made for “me or the kids”. 

 

Even where you have children, it’s important that you make time for your partner – one on one without the kids  – to make sure your relationship stays healthy. Often when kids come along, the focus shifts to the routine of family life rather than your partner and your relationship. 

 

Tip 2 – Have joint bank accounts 

 

If you can’t trust your partner with money, how is there any trust in your relationship? 

 

You trust your partner enough to live you, to have children with you etc. There should be enough trust to be transparent about finances. 

 

And if your partner spends too much money – then you need to communicate! 

 

Tip 3 – Remember the important stuff like your partner’s birthday or anniversary and definitely don’t forget your child’s birthday! 

 

Surprisingly, we get a lot of comments about this. Men like to be respected by their partner, but women want to be cherished. Birthdays and anniversaries are really important and are a good excuse to celebrate. 

 

We all have smartphones these days and these things shouldn’t be too hard to keep track of – set a reminder! 

 

Tip 4 – Never threaten Divorce or separation 

 

If you threaten divorce or separation, this is sending a message to your partner that you already have one foot out the door.  

 

It can be the kiss of death as it’s not something which you can take back. 

 

Often this type of thing is said in the heat of the moment, in an argument, but it can have a lasting impact on your partner and can often resurface in other arguments that might be had down the track. 

 

Tip 5 – Take good care of yourself 

 

Mental health is important and if you’re not feeling good about yourself, you are not going to make the people around you feel very good. 

 

It’s important to take time for yourself when you are at home during rest and recreation periods, including catching up with friends, going to the gym etc. This is not a green light to leave your family at home and go to the pub for 5 out of the 7 days during your time off, but once or twice should be okay.

Scenario: 

 

You’ve had a bad day in the Family Court and you want to vent your frustrations and let everyone know. Can you go to your private Facebook page and make a post about your ex-partner or their Family Lawyer to your Facebook friends?  

 

Answer: 

 

The short answer is you can do that, but it depends on the type of information you include in your Facebook post. As Family Lawyers, we recommend that you resist the urge to do it all, as it may reflect poorly on you in the future.  

 

If there are no proceedings before the Family Court, then you do not have any obligations restricting you from discussing your Family Law matter on Facebook, so long as you do not defame your ex-partner, anyone they may be dating or your ex-partner’s Family Lawyer.  

 

You should be careful however, if you choose to discuss Family Law matters on any social media platform, as there have been instances in the past where a person’s social media posts have been used against them. 

 

If you are involved in Family Court litigation, we suggest that you do not make any reference, however small, regarding your ex-partner or the circumstances or status of the Family Law matter at all.  

 

If proceedings have already been commenced then Section 121(1) of the Family Law Act 1975 (“the Act”) prohibits a person from publishing, or disseminating to the public, or a section of the public, an account of the proceedings, or any part of any proceedings which identifies: 

 

1. A party to the proceedings meaning you or your former partner;
2. A person who is related to, or associated with, a party to the proceedings, or is alleged to be concerned with the matter meaning your children, your former partner’s family or new partner, your lawyer or your former partner’s lawyer; or
3. A witness to the proceedings meaning anybody who is giving evidence in your proceedings. This could be a friend, or a psychologist who has been appointed as a Single Expert Witness. 

 

Section 121(3)(1) of the Act contains a detailed list of what the Court will consider when determining if a person has been identified on a social media platform or elsewhere.  

 

If you are found guilty of publishing or disseminating to the public an account of the proceedings, or any part of the proceedings which identifies someone related to the proceedings, then you commit an offence punishable by imprisonment for up to one year.  

 

There are some exceptions as to when you can publish an account of the proceedings, the list is contained in section 121(9) of the Act. Some instances when you can provide an account of the proceedings is when the Court has permitted you to do so or you are making an application for a Grant of Legal Aid. 

 

The above is not intended to be legal advice.  

 

If you need advice in relation to proceedings in the Family Court, please contact us on 08 9221 2666 or reception@calverleyjohnston.com.au to make an appointment to speak to one of our Family Law solicitors.

If you have recently separated from your former partner and they have moved out, you will often continue to receive their personal mail, which may include documents such as bank account statement, superannuation information or credit offers. 

 

Many people are tempted to open mail which is addressed to their former partner, but you should avoid doing this because it is a federal offence to open mail that is not addressed to you.

 

Under the Criminal Code Act 1995, it is an offence to intentionally open another person’s mail. If you intentionally open someone else’s mail, then you may be jailed for up to 5 years.  

 

So what should you do if you keep receiving your former partner’s mail? We suggest the following: 

 

• If you have an amicable relationship, you can pass the mail onto them directly and ask them to change their address with whoever is sending them the mail. 

 

• If you have to keep asking your former partner to change their address, or your relationship is hostile then you can simply write “Return to Sender” on the mail and place it in a post box for it to be returned to sender. 

 

If you have accidentally opened mail that does not belong to you, then you should pass it on to your former partner immediately and apologise for opening it in error. This can occur at times when you both bank at the same financial institution. 

 

It is not an offence under the Criminal Code Act 1995 if you have accidentally opened your former partner’s mail however, is it an offence to hold onto any mail that you have accidentally opened. If you are found to be keeping mail that does not belong to you, then you may face up to 5 years imprisonment.  

 

It is also important to note that it would only be classified as “accidental” if you open your former partner’s mail on possibly one or two occasions, however, if this was a reoccurring event, the Court may not consider the actions to be “accidental”. 

 

The above is not intended to be legal advice.  

 

If you need advice in relation to a Family Law matter, please contact us on 08 9221 2666 or reception@calverleyjohnston.com.au to make an appointment to speak to one of our solicitors.

It is illegal to record any person – either by audio or with a camera. 

 

Many people think that recording their interactions with their former spouse, or their children, makes for great evidence in Court, but this is simply untrue. 

 

In Western Australia, section 5 of the Surveillance Devices Act 1998 (WA) prohibits a person from installing, using, maintaining, or causing to be installed, used or maintained a listening device to: 

 

• Record, monitor or listen to a private conversation to which that person is not a party; or

 

• To record a conversation to which that person is not a party. 

 

A mobile telephone is considered to be a “listening device”. 

 

Section 6 of the Surveillance Devices Act 1998 (WA) prohibits a person from installing, using, maintaining, or causing to be installed, used or maintained an optical surveillance device to: 

 

• Record visually or observe a private activity to which that person is not a party; or

 

• To record visually a private activity to which that person is a party. 

 

A mobile telephone is also considered to be an “optical surveillance device”. 

 

In accordance with subsections 5(3)(c) and 6(3)(a) of the Surveillance Devices Act 1998 (WA), it is not an offence to use a listening device or optical surveillance device to record conversations with a person, if both parties provide their consent (expressly or impliedly) to the recording taking place.  

 

Penalties for recording a person without their consent include a fine of up to $5,000 fine or 12 months imprisonment, or both.  

 

There are certain circumstances where recordings, whilst they may not have been obtained legally, can be used as evidence in Court proceedings. Please see our separate article, “Illegal Recordings and When They Can Be Used As Evidence.” 

 

The above is not intended to be legal advice and is based on the law of Western Australia only. If you are not based in Western Australia, please contact a local family law solicitor to obtain the relevant advice.   

 

If you need advice in relation to your family law matter, please contact us.

Often the primary concern for a parent is, “How will our break-up affect the kids?”.  

 

The way in which you and your former partner choose to conduct yourselves following your separation, can shape the way your children feel about parenthood and relationships in the future. 

 

Early legal advice from a Family Lawyer can be invaluable to ensure that you are aware of your options, but also know you are doing the right thing by your children, so that they can have a relationship with both parents.

 

TIP 1: 

 

It is almost a certainty that your children will spend half their school holidays, regular weekend time and special occasions with the other parent. The exception to this is if there are risk issues such as alcohol or drug abuse, or a risk of harm or neglect.  

 

The Family Law Act 1975 promotes a meaningful relationship between parents and their children and it is common that the other parent will be involved in the children’s schooling during week days etc.  

 

In other words, the Court considers that children should be able to have a significant relationship with both parents, even if your view is that your partner was never that “hands on” during your relationship.

 

TIP 2: 

 

Consider the practicalities of caring for your children and how that actual arrangement may look for your children.  

 

For example, consider agreeing to purchase extra school uniforms so that children do not have to drag suitcases of clothes from one house to the other. 

 

Arrangements should otherwise involve as little disruption to the children’s normal activities (for example, after school sport and social activities) as possible. If your child receives an invitation to a birthday party which falls on the other parent’s weekend, let the other parent know about it so the child can still attend. 

 

TIP 3: 

 

Remain child focussed and resist the temptation to use the children as leverage with your former  

partner or to use the children as messengers.  

 

In the event communication between you and the other parent has broken down, we suggest keeping matters in writing, via email or text message. The content of your communication should also be focused on matters relating to your children and not include other issues such as property settlement or child support. Those types of topics should be covered in separate communication and not lumped in with an update about your child receiving an award at school. 

 

Also keep your communication regarding your children professional and non-emotive. It is not uncommon for your communications to be attached to affidavit material in Court proceedings, so consider the possibilities of what may happen if you choose to “vent” your dissatisfaction at your former partner. 

 

TIP 4: 

 

Consider doing a course on parenting or communication. 

 

There are a number of programs available in our community which are designed to assist parents with managing their separation, in a child focussed manner. For example, the Mums and Dads Forever program, conducted by Anglicare. This is a program designed to assist parents in handling post-separation parenting and communication skills in a constructive manner. If you have young children, under the age of 5 and you need a bit of reassurance that you’re on the right track with your parenting style, then 1-2-3 Magic Parenting Program or Circle of Security Program might be good for you. 

 

TIP 5: 

 

Do not leave any legal documents in a location which could be read by the children regarding your separation. This only exposes your children to parental conflict which is damaging to them, both emotionally and psychologically.  

 

TIP 6: 

 

In the event you agree to an arrangement for your children, ensure that you stick to the agreement by being punctual for handover. Also ensure that your children have all items that they need for their stay at the other parent’s house.  

 

In the event that any items have been left behind at your house, make sure that you promptly return those items to the other parent. 

 

TIP 7: 

 

Remember that you are the parent. 

 

Whilst children can express wishes concerning the time they might like to spend with a parent, their view may be based on their age, maturity (or lack thereof) and emotional development (which may include their perception of what would be fair, which is not necessarily in their best interest). 

 

Children of a young age will express that they want their parents to reconcile and children who are aged between 8 and 12, may have a particular focus on what they consider to be fair, in terms of the time they stay with their mum and the time they stay with their dad. 

 

If you are dealing with teenagers, both parents should show a united front. This may require you and your former partner to discuss having similar parenting styles in terms of discipline, boundaries and expectations.  

 

Children in their teenage years often use the opportunity of separation to play one parent off against the other to achieve what they want. For example, engaging in anti-social behaviour or taking part in something they know that you, as a parent, would disapprove of. 

 

TIP 8: 

 

If you have a new partner and you are considering having your new partner move into your residence to live with you during periods that you have your children, you may want to inform your former partner. 

 

This type of information is better coming from you than from the children, and it also allows the other parent to prepare for the fact that the children are going to talk about your new partner, because they have been around whilst the children have been spending time with you. 

 

It goes without saying that you should not have your new partner move in with you whilst you have the children if you have only recently met, or there are issues which your former partner may be able to raise such as a criminal record etc. 

 

TIP 9: 

 

Fight the urge to say anything bad about the other parent, the other parent’s family or any new partners, in the presence or ear shot of your children.  

 

You should also discourage any other person such as a family member, friend, new partner or acquaintance from speaking badly of the other parent, in front of the children or within ear shot of them.

TIP 10: 

 

Whilst you might not always feel it, your children look up to you and you are their role model. 

 

If you are struggling to maintain any form of a civilised relationship with your former partner, consider the impact it is having on your children. If you fast forward 20 years into the future, what will your children say about this period of their life? Will they say it was “okay” or “it ruined my life”? 

 

Consider: 

 

• How saying something less than tasteful about the other parent within ear shot of your children will make them feel. Will your words impact their view about you or the other parent?

 

• Whether your conduct at handover is as good as it could be? Do you say hello to the other parent? 

 

• Whether you are managing your emotions in front of the children. You do not want to create a situation when you are using your children as a sounding board or they begin to parent you, as you are not able to function properly.

If you have agreed or been ordered by the Court, to attend Alternative Dispute Resolution, which is a form of Mediation, you may be wondering what happens.  

 

A Mediation can be held to resolve care arrangements for your children, a property dispute or both.  

 

Mediation can last anywhere between 3 hours and a full day. As such, you should arrange to take a day of annual leave from your employment and arrange for a family member or friend to collect the children from school.  

 

To attend Mediation, you will need to agree to appoint an independent mediator. In Western Australia, this will either be a retired judicial officer, who now specializes in mediation or a Barrister or Family Law Solicitor who is also trained as a mediator. There are also cheaper services available through the Dispute Resolution Unit at Legal Aid Western Australia, if you or your former spouse is able to qualify for these services. 

 

Once a Mediator has been agreed, all parties will then need to complete some pre-mediation paperwork. This helps the mediator understand your case and often include a schedule of assets, liabilities and superannuation (if it is a financial mediation) and the issues which need to be discussed which you do not agree about (if it is a child-related mediation). 

 

If the matter is already before the Court, you will also need to provide any documents filed for the proceedings to the mediator. 

 

Once the mediator has been appointed, and all of the documents provided, the parties, and their solicitors if they are represented, will then attend a pre-mediation meeting with the mediator.  

 

This pre-mediation meeting gives the mediator a chance to meet the parties, and to discuss the structure and conduct of the Mediation with the parties. The mediator will also discuss any issues that they have identified from the parties’ documents.  

 

Once the day of the Mediation arrives, it may be carried out in a few different ways such as: 

 

1. A shuttle conference – in this instance the parties do not meet, and the mediator will go between the parties to convey offers of settlement that one party may wish to make to the other; 
2. The conference may formally convene, and the parties meet in one room to discuss any issues 
3. A combination of the two above options – the parties may formally convene to discuss any issues which need to be discussed, and then a shuttle conference occurs where offers of settlement may be made. 

There is no style that is better than the others, and the mediator will usually suggest a style that they believe will suit the parties the best, and provides the best chance of assisting the parties with resolving their dispute.  

 

If you need advice in relation to proceedings in the Family Court of WA, please contact us on 08 9221 2666 or reception@calverleyjohnston.com.au to make an appointment to speak to one of our solicitors.

It can be quite nerve-racking and overwhelming attending your first appointment with a Family Lawyer.  

 

So, what should you bring with you to your first appointment?

 

If you have time to gather some information and documents prior to your meeting, that can greatly assist a Family Lawyer to provide you with tailored legal advice. This will avoid wasting your time, and your money, as most Family Lawyers charge by the hour.

 

Some helpful documents which you can bring with you to your first appointment include: 

• A list of any questions that you may have about your situation;

• A copy of any letters or documents you have received from your former spouse, or their solicitor about your current situation;

• A copy of your Marriage Certificate and/or Divorce Certificate (if applicable);

• A list of all the current assets, liabilities and superannuation entitlements which you or your former spouse have, whether held jointly or in your or your former spouse’s sole name, together with the estimated value of those items;

• A list of all the assets, liabilities and superannuation entitlements which you or your former spouse had when you first started living together, with the estimated value of those items;

• If you or your former partner owns a business, the financial statements and tax returns for the last financial year that has been prepared. 

It is not a requirement of attending an appointment that you bring the above mentioned documents, however, it will assist a family lawyer in providing you with more accurate and specific advice, in a cost-effective and timely manner. 

 

If you need advice in relation to divorce, property settlement or care arrangements for your children, please contact us to make an appointment to discuss your situation in more detail.

Quite often, parents will reach an agreement for the care arrangements for their children, without the need to go to Court. 

 

If you and your former spouse reach an agreement regarding the arrangements for your children and you would like that put in writing so the arrangements are clear for both parents, you might consider: 

• A Parenting Plan; or 

• A Form 11 Application for Consent Orders (“Form 11”) and a Minute, which will become Court Orders.  

 

A Parenting Plan is more informal than Court Orders and sets out how parents will care for the children of their relationship. A Parenting Plan is usually entered into after parties have been to mediation or have come to an amicable agreement about how they will parent their children. 

 

Parenting Plans provide parents with more flexibility than Court Orders as they can set out arrangements in relation to children, over which the Court has no power. For example, as parents, you may agree upon how your children are introduced to a new partner in the future and when that might occur. 

 

A Parenting Plan should be signed by both parents as a sign of their intention and shared commitment to follow the agreement they have reached. If one parent decides not to follow the Parenting Plan, there are no consequences as a Parenting Plan is not a binding document. A Parenting Plan does, however, evidence the intentions of the parties, should it become necessary for a parent to engage a family lawyer or initiate Court proceedings in the future. 

 

Court Orders on the other hand, are binding on parents and must be adhered to strictly. If one parent does not follow Court Orders, then the other parent is able to commence Court proceedings to enforce the Orders. 

 

Whilst Court Orders provide certainty to parents about the care arrangements for their children, they are not “final”. If there is a significant change of circumstances or a sufficient passage of time has passed since the Court Orders were made, one parent may choose to ask the Court to change the Orders. 

  

An example of what the Court considers to be a significant change in circumstances is one parent needing to relocate for work purposes (of themselves or a new partner). 

 

If you need advice in relation to formalising care arrangements for your children, please contact us to make an appointment to explore the options available to you.