Surviving your divorce: Chapter 13- Maintenance

Having decided where the children are going to live, it is the responsibility of both the parties, according to their abilities, to provide physically, emotionally and financially for the children.

In practical terms, this will usually mean the husband paying maintenance to provide for the children.  That maintenance goes into the household where the children live, usually the wife’s household.

The amount of this maintenance is, initially anyway, determined by the Child Support Agency formula.  The Child Support Agency (CSA) provides a formula which works out the amount of maintenance to be paid based on the income of both of the parties and the needs of however many children are in that family.  This has, since its inception been contentious, and the formula was altered in 2008.  This, in fact, has made it more contentious.

The Courts can still override the formula, if for whatever reason; it is inappropriately low or high.

The CSA has its own enforcement process and can in fact take funds directly from bank accounts of parties to enforce the formula.

Being a Government Department however, and being subject to a relatively new regime, formulation management and enforcement can be a little haphazard with both sides often arguing that they are victims of the process.

The key to maintenance issues is to get an arrangement that works through communication and acting reasonably.

Couples that use maintenance as a threat or a weapon will never reach finalization of their issues, will spend tens of thousands of dollars that could be used for other purposes, arguing about the subject and inevitably both alienate their children to some extent over the issue.

Parties paying maintenance should remember that maintenance (unless it’s spousal maintenance), is for the benefit of the children.

The party receiving maintenance should ensure that maintenance is spent visibly for the benefit of the children in order to take any emotional heat out of this issue.

1.         INTERIM/EMERGENCY MEASURES

Occasionally the imbalance of access to money is so extreme and the amount of emotion is so strong, that one party will be completely without financial support.

Whilst there are Government facilities and funding available, direct action to secure access to jointly held funds is available.  Further, there are Court processes available to secure your access to those funds, and on going interim funds, if you are in this position.

Funds held jointly are just that, joint funds.  You have access to them and can, in certain circumstances, safely move those funds.  Take specific legal advice before doing so.

Your use of the funds will be taken into account in the division of any property but this will at least allow you to support yourself in those early stages.

If this is not possible and if you are being starved of access to money and other assets, an interim Court Order to release a lump sum to you (called a “Hogan Order” after the case first created it), can be made.

These Orders will force your Ex to release a lump sum to cover living expenses and legal fees while the matter is resolved.

2.         SPOUSAL MAINTENANCE

There are occasions when the Courts will recognize when it is appropriate given the history and background of the couple in question, that one party will pay maintenance directly for his or her spouse. 

This is not automatic.

The Courts recognize however that in many relationships, one party will have given up any chance of creating an earning capacity, and will be severely disadvantaged in separation.

The history of causes for the separation are irrelevant to this decision.

Rightly or wrongly, the Courts are no longer interested in who caused the separation or in punishing one party or the other for those actions.

It is absolutely incorrect under the current legislative framework to be thinking that the party who left or who “caused” the breakdown in the marriage should receive nothing.

The Courts will determine the amount of spousal maintenance, and perhaps a lump sum maintenance figure paid from the asset pool, based upon the relative positions of the parties, the asset pool, and the ability for both the parties to earn income in the future.  For example, if a Court determines that a party has no reasonable career prospects as a result of actions and decisions taken during the marriage, but that his or her partner had good earning capacity, it might tilt the asset pool in favour of that first party with no prospects.

The Courts (and therefore the Lawyers working in them) are increasingly considering however, that virtually everybody has some prospect of re-entering the work force (children permitting) at some stage, and in some way, and there is an increasing tendency to ensure that spousal maintenance and lump sum payments attributed to maintenance, are not a signal that one party or the other does not have to work in the future.

Spousal Maintenance is seen, increasingly as a short term scenario designed to assist during a transition period.

The important message is that remaining in a relationship because of financial fear about paying bills during the early months, is not a sensible approach to a problem.

Spousal maintenance is far less common now than it was some years ago.  The Courts are increasingly taking the view that the parties should be encouraged to look for work, and that a reliance upon Spousal Maintenance continues and perpetuates the reliance of one party on another and a likelihood of continuing conflict.  Notwithstanding this, there are often circumstances where Spousal Maintenance, at the very least in an interim situation until the property can be resolved, is entirely appropriate.  You should seek advice as to whether this circumstance suits you.

3.         CHILD MAINTENANCE

It is a well established principle that both parents should contribute to maintaining the health, welfare, education and development of their children.  The most visible part of this is the non-residence parent paying maintenance.

The calculation and enforcement of maintenance for the vast majority of Australian separated couples, is now governed by a Federal organization called the Child Support Agency (CSA). 

In 2008 the formula which had been in place for several years which calculated the percentage of income which was to be paid in maintenance was changed. 

It was generally accepted that the change in formula created a re-balancing in favour of non-residence parents.

In effect, the formula sets out the starting point for maintenance payments, and for wage and salary earners actually monitors and transfers funds to see that maintenance is paid. 

This does not mean that the formula is correct in every case, and that the amount to be paid cannot be varied, up or down.

It is always open to either party, if there is evidence that the formula does not apply for some reason, to apply to the Court for a variation.  You will need to show that, for some reason, it is inappropriate to apply the formula.

This may be the because of serious medical needs of the children, or some other abnormal circumstance which increases or decreases the need for receipt of funds, or increases or decreases the availability of funds.

Maintenance is intended to be a balance between the resources of both of the parents and the needs of the children.

The formula is a broad brush attempt to meet this challenge, but as can be seen by the highly contentious response to the changes in 2008, this is not always seen to be the case.

When does Maintenance End?

Until several years ago it was generally accepted that when a child left School and turned 18 the maintenance obligations ended. 

That has recently been challenged, and it is now becoming accepted that where children continue to study after leaving School, both parents have a continuing obligation to contribute to that maintenance.  This is an emerging strain of law, and specific examples, rules and a frame work, are yet to fully emerge.

Suffice to say, at this stage, that the end of the maintenance obligation has become a little more fuzzy.

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Surviving your divorce: Chapter 12- Interim Applications

Provided that you can show sufficient reason, you may seek interim Orders (you do not have to do this in your initial application, it can be done at any time, but it is preferable to do so as early as possible).  An interim application simply means saying to the Court “we need these Orders now, and want them to apply until we can have a proper hearing”.

Interim Orders can be sought for lots of reasons including, the return of a child, a change of residence (custody) of a child, change of contact (access) arrangements, and to compel compliance with the Court process.

Increasingly, and particularly in the Federal Magistrates jurisdiction, non-compliance with a Court process and interim Orders, can often be accompanied by a costs Order.  In other Courts around Australia, if you do not comply with the Court process, your opponent will bring an application for an Order that you do so, and you will have to pay your opponent’s costs of bringing that application.  This has not been a feature in the Family Court and has led to widespread non-compliance with the Court process.  The Federal Magistrates Court is far less tolerant, and will more often order a lazy or non-compliant party to pay the costs of interim proceedings to compel compliance.

They generally relate to such issues as:-

(i)                Sole occupation of the home.

(ii)              Maintenance and interim funding for a party who has no means of financial support.

(iii)             Residence (formerly called Custody) for children.

(iv)             Contact (formerly called Access) relating to children.

These interim hearings are, not necessarily, an indicator of the outcome at a final hearing.

They involve reading the affidavit material of the parties, some argument by the Lawyers, and, sometimes, further evidence by the parties.

The Court has a very short period of time to make a decision, which will stand (unless it is appealed), until there is an opportunity to do a full assessment of the facts, at a hearing.

These interim applications can be very powerful; they can determine the entire outcome of the matter in some cases.

Proper time, effort and resources should be put into making or resisting any interim application, as they can often affect the position for many years, well past a trial date.

Interim applications are also an opportunity for the parties to sort out the issue at hand, and a whole range of other issues. 

Interim Orders

At an interim hearing interim Orders may be made (but sometimes are not).  Those interim Orders will remain in place until further interim Orders change them, or until there is a hearing.  Courts are reluctant to make interim Orders that vary the existing arrangements, particularly as there is often little opportunity for a proper hearing of all the facts.  Interim Orders are made however and you should discuss with your adviser whether interim Orders will help your case, and are likely to be achieved.  A filed application for interim Orders may lead to you paying your opponent’s costs, so these applications should not be made lightly.

Interim applications bring the parties and their Lawyers into contact; there is forced association on the interim application day (the return date).  On the return date, the parties have to interact, and this may well be an opportunity to settle all of the matters between the parties.  It is quite common for an interim application to bring the parties together and for that day to turn into final orders disposing of all of the issues between them.  This opportunity, if it is presented, and it fits with your strategy, should be seized.  The amount of time, effort and cost and anxiety to be saved is well worth considering.

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Surviving your Divorce: Chapter 11- Court Proceedings

Understanding the building blocks of your Court action and the Rules that apply, will bring your anxiety levels down, keep the number of questions to your Lawyer down and thereby reducing your costs.

1. Filing Fees:

Your adviser will have to draw and settle (finalise) the Court documents. If they are particularly complex, they may in fact be settled by Counsel (checked and finalised by a Barrister). You will then have to pay a filing fee to the Federal Government to be able to lodge and commence your Court action. Occasionally these filing fees are waved on financial funds. Those documents are then served upon your Ex partner, and the Court process takes over according to the Court Rules.

2. Understanding the building blocks:

Application
This document sets out what you want from the Court. It is a fairly complex document, and, whilst it can be amended, it is essential that it contains all of the orders that you want from the Court. It may seek interim Orders, that is, things that you want the Court to decide on straight away without the need for a full hearing, such as a change in residence (previously called custody) for children, or an interim release of funds to assist you to meet expenses or legal fees (commonly called a Hogan application).

It is important to discuss the terms of the application which are available.

Affidavit
This is your version of the facts. This will often be a long and complex document, but there are times when tactically there is a benefit to holding some information to be filed at a later date, if you believe that a short affidavit is conducive to getting an offer, the order that you want, or some other beneficial outcome. You should discuss with your adviser the content of this affidavit, but make sure that the adviser KNOWS EVERYTHING.

Written instructions can save time, effort and cost. You can also keep your costs down if you have the ability to have the draft documents emailed to you and make highlighted edited comments to finalise the affidavit.

Statement of Financial Circumstances:
All parties need to file this very detailed document. It gives the Court a great deal of information regarding the financial position of both the parties. It is designed to make sure that the Court knows exactly what the relative positions of the parties are.

It is vital to make sure that you understand the content of this document (and the document filed by your Ex), and to ensure that both of them are accurate.

Being caught providing inaccurate or incomplete documentation can have dire consequences for your action and the outcomes you want.

If you have any doubts about the content of this document, make sure that your Lawyer is aware of your questions and make sure that the answers satisfy you. You will be the one, at Trial, answering questions about what was intended by the documents that you file and serve. There are your documents not those of your adviser and though you should listen to the opinions of your adviser, ultimately the contents of these documents need to suit you.

Counselling Orders
On top of the compulsory pre-litigation steps which must be complied with before your Court proceedings can be commenced, the Court will still often order counselling, and you should participate in any kind of counselling process which is designed to either:-

a) improve your outlook so that you can take a more balanced and constructive view of the dispute; or
b) likely to end in a resolution.

Private counselling is also available and encouraged by most Lawyers as it keeps costs down, keeps clients focused on the most important issues, and shortens the life of disputes. Contrary to most opinions, a short, well constructed and quickly finished dispute is far more profitable for a Lawyer than a long drawn out saga with combative parties who are not interested in settling.




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The Role of the Operations Manual in Franchising

There is a general understanding among the business community at large that the operations manual or procedures manual for a franchise is just that; the manual for how to run the franchise on a day to day basis.

Originally this was so, but in some franchises it has become quite a bit more over the last decade or so.

This is a dilemma for intending purchasers, particularly buyers of brand new sites where this is no seller to speak to.

Franchise Agreement -v- Manual

These two documents are related but different.  The franchise agreement sets out the rights of the franchisee against the franchisor and obligations to the franchisor.

With a franchise agreement, there will be an obligation of the franchisee to comply with the manual, as it is amended from time to time.

In traditionally drafted franchise agreements, the parameters of the manual are actually described.  The manual is expressed to be for the purpose of setting out the day to day operational requirements for the running of the business.

The Manual is supposed to envisage things such as recipes, machinery operation, forms and precedents and the sorts of mechanical processes which make up the franchise system.

Both parties expect the manual to change and evolve over time as processes and equipment become obsolete and are replaced by more modern approaches.

The manual is jealously guarded by franchisors.  Usually, only one copy is provided and it cannot be reproduced by you.  It must be returned on completion of the franchise and cannot be released not shown to anyone else.

The franchise agreement by contrast is signed at the beginning of your franchise relationship and does not change until it is renewed at the end of the term specified in the agreement.  You cannot be forced at any time during that term to accept changes to that document.

Recent Developments

Some franchisors have, in recent times, seen the flexibility of the manual as an opportunity to attempt “backdoor” alterations to the franchise agreement.

The traditional section of the franchise agreement which describes and sets out the parameters of the manual has been removed in some cases.  All that remains of the franchise agreement of these particular franchisors is an obligation to comply with the manual as it is amended from time to time.

The manual, a document which you do not receive until you actually start operations in the business, then becomes the place for a whole range of obligations dreamed up and implemented from time to time by the franchisor.

In recent years, this has been used by franchisors to enforce serious structural changes such as centralized software, changes to telephony and ordering systems, and new marketing strategies, all of which have significant cost and operational burdens for franchisees.

There is no regulation or legislation preventing this process.

One additional benefit of this structure, is that the existence of these processes and the costs attached to them, do not form part of the franchise agreement, and therefore are not required to be disclosed according to the regime in the franchising code.  This means that the franchisor does not need to disclose much detail regarding them to you in the early days of your due diligence.  Release of the copy of the manual is not required according to the code.

What can you do about it?

Firstly, ask about the history of changes of the manual, seek copies of recent changes and ask other franchisees.

If you are buying an existing franchised business, ask to see the manual and recent changes to it, during your due diligence.

Look at the franchise agreement itself and see whether there is a clause which sets out the types of things which can be put into the manual.

Ask the franchisor what operational changes and changes to the manual are planned.  The franchisor will probably be quite happy to outline future changes, as the franchisor will see these as bonuses for you, providing a better, more “21^st century” system for you.  These may however have additional costs and structural change built into them that you will need to consider.

Get advice on the documents, and what freedoms the franchisor has allowed itself in the franchise agreement.

Surviving your divorce- Chapter 10: Domestic Violence

Domestic Violence has, in recent years, taken centre stage in the family law dynamic, and appears to be being magnified by an attempt to change the national psyche.

Any allegation of Domestic Violence will inevitably change the way a family law dispute is viewed and managed.

Allegations of Domestic Violence are taken extremely seriously, and alter the entire character of the way the Court process works, so far as that particular matter is concerned.

Two important rules emerge from this:-

(i)                Make an allegation of Domestic Violence only if it is warranted.

(ii)              Never, never, never admit to or concede an allegation of Domestic Violence if it is inappropriate to do so.

1.         MAKING AN ALLEGATION

It is common perception that there must be physical violence, where one party must strike another, in order for an allegation of Domestic Violence to be supported.  This is not so.  Any course of conduct or single act which has the effect of making a reasonable person fearful will be sufficient.  A complaint of Domestic Violence can be made through the Courts, and conducted by the parties or a law firm, or can be made by and conducted through the Police Service.  The Police have wide-ranging powers as a result of complaints or attendance at domestic disputes, to remove the party who seems a threat, to hold them in custody temporarily, and to conduct Domestic Violence applications, regardless of that party’s intentions.

Safety of the parties is paramount and the Police will act to remove any person who seems a threat.

You can also commence Domestic Violence proceedings, and it is reasonably easy to obtain an interim Order, given that Magistrates are far more likely to act with caution until all of the facts are known, and will make Orders (often mutual orders, that is, orders binding both parties), until there is an opportunity to have a hearing on the facts.

There is often pressure on parties to make mutual “tit for tat” cross applications alleging Domestic Violence.  This should only be done if the facts support such allegations.

Domestic Violence Hearings and Orders are a major distraction from obtaining final outcomes, and often stand in the way of getting matters resolved.  They can also be an enormous drain on funds, and if allegations are not later proven to be true, will seriously damage your prospects in related Court actions.

Simple things like the hand over of children to spend time with the other parent, become fraught with logistical problems and opportunities for parties to make allegations which ultimately simply waste money and time. 

Parties are often tempted to use Domestic Violence applications and interim Orders as a tool.  This can seriously backfire.  Interim Orders interfere with contact handover and unnecessarily complicate matters, if they are not necessary to regulate the contact of the parties.  They should be resisted as a tactic to “get at” your Ex. It simply doesn’t work.  It’s a distraction, time and costs waster and can blow up in your face if the facts do not support you.

The parties are often under pressure to make what are called Consent Orders without admission.

This is, in effect, where the respondent (or both parties if there are cross applications) denies the allegation of Domestic Violence, but agrees to be bound by an Order to keep away from and have no contact with the Applicant.

You should resist the temptation to “nod” to such an Order if the allegations against you are untrue.  These Consent Orders, even without admission, will cause major problems with the conduct of the main Family Court proceedings, and may prejudice or at the very least alter the course of contact with the parties and their children, and affect final resolution of the matter.

Conversely, allegations that are later proven to be unfounded can be seriously damaging to your credibility. 

The message is clear:-

(i)                only ever make an allegation if it is supported by fact;

(ii)              do not consent to Orders, even without admission, unless it is appropriate to do so.

2.         THE COURT PROCESS

Domestic Violence hearings have 3 stages:-

(i)                Initial Order;

(ii)              Interim Orders and Interim hearings;

(iii)             Final Orders.*

3.         INITIAL PERIOD

Domestic violence orders can be initiated by one of other of the parties.  The process involves filing an application in the appropriate court and your adviser can draft the material for you. Often though the process starts with an event of violence or a domestic incident.

Police Officers have the power to obtain initial orders binding the parties until a Court can hear the matter.

This is usually overnight, or for very short periods of time.  Police attending a home will initially try to make a value judgment about removing someone from the site to prevent further possible violence.  If that decision is made then that person will be removed and police will seek to obtain an interim order preventing contact between the parties until a Magistrate can look at the facts.

The parties will then turn up to a “first return date”. This is the first time that anyone actually looks at the facts.  Prior to this the only focus is on taking precautions to try to ensure that any violence stops.  Police will make that decision out of an abundance of caution and will be concerned about the consequences of not acting.  As a result it is very common for someone to be removed from the scene.

This does not mean that violence is proven. 

It simply provides a circuit breaker for the situation.

4.         INTERIM ORDERS AND INTERIM HEARINGS

Regardless of whether the matter is police initiated or by application filed by a party, the matter will then go before a Magistrate who will consider making an interim Order.

As I have previously mentioned, these Orders are made on very conservative grounds, and it is more likely than not, that an interim Order will be made.

Everyone appears at the local

Magistrates Court

on the morning of the first return date.  There are several possibilities for what happens on that date and it depends upon the attitude of the parties and to some extent the police (and certainly the Magistrate), as to what orders if any are ultimately made.

There are three possibilities:

a)    there are no orders made and the matter is dismissed (quite rare);

b)    there are interim orders made and a final hearing date is set;

c)    there are final orders made by consent.

It is possible though exceedingly rare that no orders are made at this first return date and the parties return to a situation as though police never attended or intervened.  Even if you or your partner withdraw the complaint, the police have the discretion to continue.  They will do so if they believe the complainant is being intimidated or overborne into making a decision to withdraw.

If the matter is not dismissed at this first date, then some orders will be made.

Whatever happens unfortunately there will not be a full examination of the relationship and the facts behind any incident on this first return date.

What will happen is that the parties representatives (or the police prosecutor if the parties are unrepresented), will have a look at the facts as alleged.

There will then be a discussion about whether some orders can be made by consent.

They can take many forms and have lots of variations.  They may in fact contain mutual obligations for the parties to remain away from each other.

If some kind of common ground on order can be found, then consent orders can be made.  These can be interim (until a full hearing can be held), or final.

Interim consent orders are the most common but if there is complete agreement on the way forward then final orders can be made by consent.  DO NOT CONSENT TO FINAL ORDERS WITHOUT UNDERSTANDING THE FULL CONSEQUENCES OF DOING SO.  Final orders have far reaching consequences.  They create obligations and problems which will stand for years.  They are difficult to undo or alter without the consent of your Ex (which may not be given).  Even if the orders are made “Without Admission”, that is, without conceding that you’ve done anything wrong, they will affect not just the way contact with any children is conducted, it may affect how the rest of the finalization of the relationship is managed.

As I previously stated, there has been a trend in years gone by to encourage the parties to make “mutual orders without admission”.  This means, so it’s claimed, that the parties effectively agree to stay away from each other without admitting any of the allegations made by the other.  This was a relatively easy way to dispose of the allegations on the first return date, either in an interim sense or in final orders, without going through the whole costly antagonistic process.  This was often sold to the parties as saving costs and “getting on with the important stuff”.  This is the wrong way to look at what is a very serious matter.

Domestic violence orders can have a major affect on the shape duration and consequences of he entire process of unraveling a relationship.

Think carefully about the instructions you give your adviser.  Do not feel rushed and if you cannot make a decision you’re happy with, keep talking to your adviser and those close to you until you can.  Remember, your adviser is not there to demand that you do various things.  Your adviser is there to explain the law and circum stances to you, and make recommendations to you about what you CAN do.  You adviser is definitely not there to tell you what to do or put problems in your way.

Your adviser is required, after explaining the situation to you, to take and implement your instructions unless they are illegal or unethical.  If your adviser is unprepared to do that then he/she should withdraw and allow you to get another adviser.

Unfortunately some, even senior lawyers, do not know or forget this.

If there is not enough common ground for consent orders then, there may need to be, or the parties may require, an interim hearing.  This is, necessarily, less than a full-on examination of all the facts.  There will be argument from both parties some submissions regarding what Orders, if any, would be appropriate.

It is acknowledged that the parties will not have had any time to gather evidence, collect witnesses and prepare for a hearing.  For this reason final orders are not made on that day.   You may feel a certain amount of frustration in not being able to “have your say”.  Ultimately it is best for both parties if the facts to emerge once all the information is to hand and a proper examination of everything can be made.  This takes a little time.

At an interim hearing, the decision to be made is, “what step will best put the matter into a holding pattern until a full review can be done”.  For this reason interim orders against one or both parties are very common.

It is an unfortunate side effect of this approach that many people have interim orders made against them in circumstances that are very superficial.  People are subject to the stigma of an interim domestic violence order based on only a cursory examination of the facts.  This is traumatizing and is even worse when children are involved.  Trying to explain this process to a small child is extremely difficult.  Contact (now called “Spending Time”) with children almost universally means contact with the other parent, which, of course, can’t be done under interim or final orders.  Your adviser will have strategies and processes to go in the order to make this work.

The thought of “engineering” an interim order might be tempting as a way of scoring points against an Ex but it immeasurably complicates the process and will make the prospects of getting a resolution plummet.  It is extremely dangerous to play with this process and there are severe penalties for being caught doing so.  You should only make a domestic violence complaint if there are grounds to do so.

One of the worst features of interim orders is the impression it gives some parties.  All sorts of feelings of revenge, alienation, superiority, and other impressions which act to move the parties further apart, spring from the (often wrong) impression of the rights granted at these interim hearings, to say nothing of the additional costs incurred.

Interim orders will, of necessity mean one party leaving the home, usually at no notice.  This can be a good thing in relationships of genuine fear and danger.  It can be the first real step in a realization that a relationship isn’t working.  It can also harden attitudes.

None of this should enter into your thinking of you are in danger or fear.

If you need to make a call to end violence an intimidation, do it.

If those Orders are not final and by consent, then those Orders will stand but the matter will be set down for a full hearing, and directions will be made by the Court as to dates for preparation and service of material to support or refute the allegations.

5.         FINAL ORDERS

At that final hearing, both parties will by then have filed affidavits and setting out their versions of the facts, but both parties will be required to be cross-examined on that material, and answer questions from their opponent’s legal adviser designed to disprove the allegations.

The Magistrate will then decide which version of the facts he or she accepts, and make orders accordingly.  The proof of the allegations is of the civil standard, that is, on the balance of probabilities.  This means that the Magistrate will only have to decide whether it was more likely than not that the allegations are true.  There is no requirement to prove the allegations beyond a reasonable doubt. 

It is a particular problem for the parties and the Court that most often, these allegations are of conduct between the parties in private, with no other witnesses, and are often alleged to have stretched over a period of time, making dates, times and places difficult to pin-point (and refute).

There is no requirement for corroborating evidence, (that is, some kind of independent evidence, for example, medical evidence, evidence of complaint at the time, or physical evidence), in order for the allegations to be accepted.  This introduces an element of jeopardy and almost chance into the Domestic Violence arena, which is unwelcome by the parties or the Court.  Nonetheless, it is present and has to be dealt with and considered by the parties.

6.            APPEAL

There are only 4 grounds of appeal:-

(i)                That the Court has allowed evidence that should have been excluded.

(ii)              The Court has excluded evidence that should have been allowed.

(iii)             That the Court misunderstood the law.

(iv)             That the Magistrate so misunderstood the facts as stated, that no reasonable person could have come to the conclusion that he or she did.

As you can see these appeal grounds are quite narrow.

Orders made will be expressed to exist for a particular period of time, and may be very, very specific, covering minimum distances of approach, specific areas or places which are not to be entered, and particular conduct which is not permitted.

On expiry of the orders, they can be extended depending upon the conduct of the parties in the interim.

7.         SIDE EFFECTS

Allegations of Domestic Violence can alter the way your family law dispute is conducted.  Matters affecting the children will be delayed, complicated and made far more expensive for all parties, by unfounded allegations.

Likewise, consenting to Orders relating to Domestic Violence, will slow down, complicate and make more expensive, all of the other dealings related to the dispute.  Orders relating to contact with, maintenance of, and the residence of children will all have to be looked at and made more complicated by allegations made.

If this is required for the safety of the parties or the children then, so be it, and this is quite appropriate.

Using Domestic Violence as a weapon though, is often counter-productive and will harden the attitudes of all of the players to a resolution.  This will increase the chances of the matter becoming one of the 7% or so of disputes that goes to the delay and expense of a full Trial of all the property and children issues.

If you need to make an allegation for Domestic Violence in order to be safe and to make suitable arrangements for children, then do so, and stick to those allegations without watering down or embellishing them.  If not, resist the temptation to make unfounded allegations.

It is essential that, if your relationship has been marked by domestic violence, you take advice on structuring your termination of it and that you have a domestic violence safety plan before you make the break.  You should seek advice on how to do this.