Asher graduated with a Bachelor of Laws (Honours) from Monash University in 2021 and completed Practical Legal Training with Leo Cussen, earning her a Graduate Diploma in Legal Practice. She was admitted as an Australian lawyer and Officer of the Supreme Court of Victoria and the High Court of Australia in 2022.
Asher completed the Family Law Assistance Program at Monash Law Clinics, and worked as a Law Clerk in a specialist family law firm prior to the completion of her Law degree. She has previously volunteered with the Victorian Family Law Pathways Network. She provides the firm and its clients with extensive knowledge in all areas of Family Law, with a particular interest in complex parenting matters. Asher brings professionalism and innovation to the firm and is passionate about achieving the best outcome for our clients.
Asher is a member of the Law Institute of Victoria, Victorian Women Lawyers and the Law Council of Australia – Family Law Section.
Related Articles & Cases
In Australia, ending a marriage or de facto relationship can be emotionally challenging, but understanding the distinctions between separation vs divorce is crucial to navigating the legal complexities.
While both separation and divorce mark the end of a relationship, they encompass distinct legal concepts and procedures.
In this article, we will explore the differences between separation vs divorce in Australian law, shedding light on the essential aspects of each process.
In Australia, separation is when a couple decides to live separately. Unlike divorce, no legal documentation is required to prove separation, and it does not involve court proceedings.
For married couples, separation can be unilateral, meaning one spouse can decide to separate even if the other disagrees.
However, for de facto couples, the break is only valid if both parties acknowledge the decision to end the relationship.
Key points to note about separation:
- Informal nature: Separation requires no formal application or legal action.
- Division of assets and responsibilities: After separation, couples may agree on property division, child custody, and financial arrangements. However, it is advisable to have these agreements documented legally to avoid future disputes.
Definition of Divorce
Divorce, on the other hand, is a legal process that officially terminates a marriage. To apply for a divorce in Australia, certain conditions must be met:
- One-year separation: The couple must have lived separately and apart for at least one year before applying for a divorce.
- Jurisdiction: Either spouse must be an Australian citizen, regard Australia as their permanent home, or have lived in Australia for at least 12 months before filing the divorce application.
Key points to note about divorce:
- Application process: Couples can apply for divorce jointly, or one spouse can apply alone if the other spouse is unwilling to cooperate.
- Court proceedings: While divorce is generally straightforward and may not require a court appearance, the Family Court of Australia oversees the process.
- Parenting arrangements and property division: A divorce only deals with the legal termination of the marriage, and separate applications may be required to address child custody and property division matters.
Legal Implications: Separation vs Divorce
It’s essential to recognise the legal implications of both separation and divorce in Australia:
- Financial matters: Couples have 12 months to finalise financial arrangements after divorce. Please do so to avoid losing the right to claim property settlements through the Family Court.
- Child custody and support: Divorce does not automatically address parenting arrangements. Couples must decide on child custody and support separately, keeping the child’s best interests in mind.
- Marriage status: After a divorce is granted, both parties are legally single and free to remarry if they wish.
What You Need to Know When Considering Separation or Divorce?
When considering separation or divorce in Australia, it’s crucial to understand that separation is the decision to live separately, not requiring legal action.
Please note that it is possible to live separately under the same roof.
Divorce, however, is a formal legal process that ends a marriage and requires one year of separation.
Divorce addresses the termination of the marriage, while custody and property matters require separate proceedings.
Seek legal advice to navigate the complexities and ensure a fair process for all parties involved.
How We Can Help You Go Through the Process: Separation vs Divorce
As a law firm, we empathise with our clients’ delicate situations, and Eduard’s (name changed for privacy reasons) case was no exception.
He approached us seeking assistance filing a divorce with his wife, Jenna, with whom he had been living separately for 14 challenging months.
We carefully listened to Eduard’s concerns during the consultation.
We advised him on the legal requirements and procedures involved in a divorce, guiding him through the various settlement options available.
We prepared and filed the necessary paperwork once Eduard decided to proceed with the divorce.
We handled the legal documentation, ensuring that all the essential details were accurately represented.
Throughout the process, we kept Eduard informed about the progress of his case, providing him with the support and guidance he needed during this emotionally challenging time.
Ultimately, we successfully facilitated the divorce proceedings, allowing Eduard to start a new chapter in his life with confidence and clarity.
Understand the Differences & Seek Legal Advice
Understanding the differences between separation and divorce is vital when navigating the complexities of ending a marriage or de facto relationship in Australia.
Separation marks the informal decision to live apart, while divorce is a formal legal process that terminates a marriage.
Couples must know the legal requirements for divorce and take appropriate steps to address property division and child custody matters.
Seeking legal advice is highly recommended to ensure a smooth and fair process for all parties involved.
How to Fight Parental Alienation in Court: A Guide Based on Australian Laws
Parental alienation is a distressing phenomenon when one parent attempts to manipulate and poison the relationship between a child and the other parent.
In Australia, this emotional abuse is recognised as a serious issue, and the family law system aims to protect children from such harmful behaviour.
Understanding your rights and the legal avenues available is essential if you face parental alienation.
This article provides a comprehensive guide on how to fight parental alienation in Court based on Australian laws.
What Is Parental Alienation?
Parental Alienation in Australia refers to the harmful practice where one parent manipulates and poisons the child’s relationship with the other parent, causing emotional distress.
It undermines the child’s connection with the targeted parent through negative comments, restrictions, or false allegations.
Australian family law recognises this issue and aims to protect children from such harm, with courts prioritising the child’s best interests in resolving disputes related to parental alienation.
What is Parental Alienation Syndrome?
Parental Alienation Syndrome is a controversial term used to describe a situation where a child aligns strongly with one parent and rejects the other parent due to the negative influence or manipulation by the aligned parent.
It suggests that the child’s rejection is unjustified and results from the alienating parent’s efforts to alienate the child from the other parent.
However, it is important to note that the concept of Parental Alienation Syndrome is not universally accepted within the mental health and legal communities.
How to Fight Parental Alienation in Court?
1. Recognise the Signs of Parental Alienation:
Recognising the signs of parental alienation is the first step towards addressing the issue in Court. Some common indicators include:
a) Consistent negative comments about one parent in the child’s presence.
b) Undermining the relationship between the child and the other parent.
c) Restricting communication or visitation time between the child and the other parent.
d) Encouraging the child to reject or fear the other parent without valid reasons.
e) Constantly involving the child in parental conflicts.
2. Consult with a Family Lawyer:
When facing parental alienation, seek legal counsel from an experienced child custody lawyer in Australia. They will guide you through the legal process, explain your rights, and advise you on the best action.
Family lawyers can also help you present your case effectively in Court.
3. Mediation and Dispute Resolution:
Before initiating court proceedings, Australian family law encourages parents to attempt mediation and dispute resolution.
These processes aim to reach an agreement outside the Court, ensuring a more amicable solution.
However, court intervention may be necessary if parental alienation persists and mediation fails.
4. Apply for Parenting Orders:
Parenting orders are court orders that outline the arrangements for the care and living arrangements of the child.
You can apply for specific orders to address the issue if you suspect parental alienation.
The Court will consider the child’s best interests when making these decisions.
5. Present Evidence in Court:
When fighting parental alienation in Court, strong evidence is crucial. Gather relevant documents, text messages, emails, and witness testimonies demonstrating alienating behaviour.
Be prepared to present these pieces of evidence before the Court to support your claims.
6. The Child’s Best Interests:
The Court prioritises the child’s best interests in all family law matters concerning children.
Focus on demonstrating how parental alienation harms the child’s emotional and psychological well-being.
Propose alternative parenting arrangements that promote the child’s relationship with both parents while ensuring their safety and happiness.
7. Court-Ordered Interventions:
If the Court finds evidence of parental alienation and deems it detrimental to the child, various interventions may be ordered.
These could include supervised visitation, counselling, or family therapy to address and rectify the situation.
Can a Parent Lose Custody for Parental Alienation?
Yes, a parent can potentially lose custody or face restrictions on visitation rights if they are engaging in parental alienation.
Courts in various jurisdictions, including Australia, consider the child’s best interests as the primary factor in custody decisions.
If a parent’s behaviour is determined to be causing harm to the child’s relationship with the other parent, it could lead to a modification of custody arrangements to protect the child’s well-being.
However, each case is unique, and decisions are made based on the specific circumstances and evidence presented in Court.
We Will Help You Fight: How to Fight Parental Alienation in Court
As a family law firm, we received a distressing call from Gina (name changed for privacy reasons), who was grappling with accusations of parental alienation against her ex-husband, Earl.
Earl and Gina were divorced and co-parenting their two young daughters, but recently, Gina noticed concerning changes in her eldest daughter’s behaviour, which led her to suspect parental alienation.
Upon receiving Gina’s call, we empathised with her situation and assured her that we would take immediate action. We scheduled an in-depth consultation to understand the specifics of the alleged alienation.
In the next step, we filed a motion in family court to address the issue and protect the best interests of the children.
Our team worked diligently to present relevant evidence, including witness testimonies and communication records.
We also recommended psychological evaluations to assess the impact of parental alienation on the children’s well-being.
Throughout the process, we offered Gina support and guidance to navigate the legal complexities.
We focused on presenting a strong case in court to ensure a fair resolution.
In the end, our efforts paid off, as the court recognised the signs of parental alienation and took appropriate measures to address the situation.
Earl was ordered to attend counselling sessions to rebuild his relationship with the children, promoting a healthier co-parenting dynamic for the future.
Fighting parental alienation in Court can be a challenging process, but it is essential to safeguard the well-being of the child involved.
In Australia, the family law system emphasises the child’s best interests and strives to protect them from emotional harm.
If you suspect parental alienation, consult with a knowledgeable family lawyer, gather strong evidence, and be prepared to present your case in Court.
By taking appropriate legal action, you can work towards resolving parental alienation and fostering a healthy parent-child relationship.
In the unfortunate event of a mother’s passing, questions often arise about who will care for the child.
It’s important to note that the father does not automatically gain child custody if the mother dies. The court will consider all relevant factors, and child custody lawyers can help advocate for the best interests of the child, working to ensure a fair and informed decision.
Existing Parenting Orders and the Mother’s Passing
A parenting order can be a significant factor in the Family Court’s decision about child custody if the mother dies. In Australia, specific laws govern child custody in these circumstances.
If a parenting order is already in place at the time of the custodial parent’s death, the family court will consider it when making its decision. This situation can be particularly challenging if the parents are separated or divorced, and the mother has primary custody of the children.
The court will consider whether the existing parenting order is still appropriate and in the best interests of the child, given the change in circumstances caused by the custodial parent’s death.
The court may need to make changes to the order to reflect the new circumstances, particularly if the surviving parent is seeking to become the primary caregiver.
If there is no existing parenting order, the court will make a decision based on the best interests of the child.
However, if there is a dispute between the surviving parent and other parties (such as grandparents, stepparents, or other relatives), the court may need to decide on the parenting arrangements.
The court prioritizes the child’s best interests, avoiding a “winner takes all” approach, and seeks to maintain a meaningful relationship with the surviving parent or caregivers, considering all relevant factors.
It’s important to note that the father doesn’t automatically gain custody if the mother dies. Instead, custody is determined based on the child’s welfare. This might involve granting custody to another family member if the father isn’t the best caregiver.
The court might order shared parenting or primary custody depending on the situation.
Also read: Joint Custody vs Shared Parenting
What Can the Surviving Parent Do?
If the surviving parent wishes to obtain child custody if mother dies, he can apply to the court for an order granting him custody.
However, it’s important to note that simply being the surviving parent does not automatically entitle him to custody.
To increase his chances of being granted custody, the surviving parent may need to demonstrate to the court that he can provide the child a stable and safe home environment.
This could involve providing evidence of his ability to meet the child’s physical, emotional, and developmental needs as well as any plans he has for the child’s education, health care, and general well-being.
The surviving parent may also need to address any concerns the court may have about his ability to care for the child.
For example, if there have been previous incidents of family violence or if he has a history of substance abuse or mental health issues, the court may be hesitant to grant him custody.
In these cases, the surviving parent may need to provide evidence of his efforts to address these issues and demonstrate that he has taken steps to ensure that the child will be safe in his care.
If the family court determines that it is not in the child’s best interests to live with the surviving parent, custody may be granted to another family member or even a non-relative, such as a foster carer or adoptive parent.
Understanding Father’s Custody When a Mother’s Child Does
In conclusion, child custody arrangements can be complex, especially in the event of a mother’s death.
If you are in this situation, it’s important to seek legal advice to understand your rights and responsibilities.
Remember, the court’s primary consideration is the best interests of the child, and all decisions will be made with this in mind.
Obtaining custody of your child is a significant concern for parents facing separation or divorce.
If you find yourself wondering, “Who do I talk to about getting custody of my child?” this article will guide you through the key aspects of Australian child custody laws and direct you to the relevant professionals who can assist you in this process.
Understanding Child Custody Laws in Australia
1. Best interests of the child: Australian family law focuses on the best interests of the child above all else. When deciding custody arrangements, the courts consider factors such as the child’s relationship with each parent, their physical and emotional well-being, and their need for stability and continuity.
2. Parental Responsibility: In Australia, both parents have shared parental responsibility for their children, regardless of the parents’ marital status. This means that major decisions about the child’s upbringing, such as education, healthcare, and religion, should be made jointly by both parents.
3. Types of custody: Australian law recognises two types of child custody: legal custody and physical custody. Legal custody involves making important decisions about the child’s life, while physical custody refers to where the child primarily resides.
4. Parenting arrangements: Courts encourage parents to reach mutually agreed-upon parenting arrangements through negotiation, mediation, or alternative dispute resolution methods. These options prioritise cooperation between parents and can lead to more satisfying outcomes for all parties involved.
5. Court intervention: If parents are unable to reach an agreement, they may need to seek court intervention. The Family Court of Australia or the Federal Circuit Court can assist in resolving disputes related to child custody, including granting parenting orders and determining custody arrangements.
Who Can Help You: Who Do I Talk to About Getting Custody of My Child
Seeking custody of your child can be a complex and emotional journey. If you find yourself asking, “Who do I talk to about getting custody of my child?” here are some professionals who can assist you in navigating the legal process and securing the best outcome for your family:
1. Family Lawyers: Consultation with a family lawyer specialising in child custody matters is highly recommended. They possess expert knowledge of Australian family law and can guide you through the legal processes involved in securing custody. They can provide advice on your rights, obligations, and potential outcomes based on your specific circumstances.
2. Family Relationship Centres: These centres offer information, advice, and mediation services to help separated or divorced parents resolve their disputes amicably. They can assist you in reaching agreements on parenting arrangements, including custody, and provide referrals to other relevant support services.
3. Legal Aid: If you have limited financial resources, you may be eligible for legal aid services, which provide free or subsidised legal assistance. Contact your local Legal Aid Commission to determine if you qualify for their support.
4. Family Dispute Resolution Practitioners: These professionals specialise in helping parents resolve disputes outside the court system. They facilitate open discussions, encourage effective communication, and assist in finding mutually acceptable solutions.
As a dedicated family law firm, we recently assisted a determined mother in her quest for child custody. Our team listened attentively to her concerns, explaining Australian custody laws and guiding her through the legal process.
We developed a strong strategy, considering her child’s best interests and her desired outcome. Through open communication, we addressed her questions and provided reassurance during this emotionally challenging time.
We skillfully represented her in negotiations and court, passionately advocating for her parental rights. In the end, she was granted custody, ensuring a stable and loving environment for her child’s future.
Witnessing her joy and relief reaffirmed our commitment to helping parents achieve the custody arrangements they deserve.
When seeking custody of your child in Australia, it’s essential to understand the legal framework and seek the right guidance. While the best interests of the child remain paramount, there are various professionals available to support you throughout the process.
Consulting with a child custody lawyer, utilising family relationship centres, seeking legal aid, and engaging family dispute resolution practitioners can help you navigate the complexities of Australian child custody laws and increase the chances of securing a favourable custody arrangement for your child.
Remember, seeking professional advice and attempting amicable resolutions should be prioritised for the well-being and happiness of your child.
How Are Any Assets Held Overseas Treated in a Divorce?
In our interconnected world, owning overseas property and assets has become common. This raises questions about how these assets are treated during a divorce in Australia.
Inclusion of Overseas Assets in Australian Divorce Settlements
Australian law carefully addresses the treatment of overseas assets in divorce settlements. Under the Family Law Act 1975, Australian courts can exercise jurisdiction over foreign assets.
This legal framework provides a holistic and fair approach to property division, ensuring that all assets are considered, regardless of location.
This inclusiveness is vital in a world where international investments and property ownership are commonplace, ensuring that both parties in a divorce receive a just share of the global asset pool.
This approach reflects the modern reality of globalised finances and personal affairs, making the division process more relevant and equitable in today’s interconnected world.
🔑 Key Takeaway: Overseas assets are included in the property settlement process under Australian family law.
Disclosure Obligations and Consequences
Full disclosure of all assets, including those overseas, is required in Australian family law proceedings. Failure to disclose foreign assets can lead to legal consequences, such as case reopening or penalties. This ensures transparency in the property division.
🔑 Key Takeaway: Transparent disclosure of all assets, including overseas ones, is mandatory to avoid legal issues.
Determining the appropriate jurisdiction for property settlements involving overseas assets is a nuanced and complex issue.
Australian courts can issue orders concerning foreign assets, yet the enforceability of these orders can significantly vary depending on the legal framework of the country where the assets are located.
This variability underscores the importance of seeking legal advice in both Australia and the relevant foreign country.
Expert legal counsel can navigate the intricate legal landscapes and guide the most strategic and effective approach to managing and settling these international assets.
🔑 Key Takeaway: Jurisdictional choices impact the settlement of overseas assets. Expert legal advice is essential.
Valuation and Division of Overseas Property
Valuing and dividing overseas property in a divorce settlement depends on the jurisdiction and respective laws governing those assets.
Different countries have varied approaches to property division, significantly influencing the settlement outcome.
For instance, some countries may favor an equal division of assets, while others consider factors like the duration of the marriage or the individual contributions of each party.
This variability necessitates a thorough understanding of the legal frameworks of the relevant countries.
Additionally, the process can be further complicated by differences in property valuation standards and economic conditions across countries, making expert legal and financial advice essential for equitable settlement.
🔑 Key Takeaway: The division of overseas property depends on the jurisdiction, necessitating accurate valuation and legal insight.
Enforceability of Australian Court Orders Overseas
Australian court orders for overseas property may face enforceability challenges in foreign jurisdictions. Understanding and navigating these complexities is vital for a fair settlement.
🔑 Key Takeaway: The enforceability of Australian court orders on overseas assets varies and requires careful legal examination.
Seeking Expert Advice
Handling overseas assets in Australian divorce settlements involves navigating complex legal territories such as jurisdiction, disclosure, valuation, and the enforceability of court orders.
Understanding these aspects is crucial for ensuring all assets are reasonably accounted for and equitably divided.
This process often requires expert legal guidance due to the intricate nature of international laws and agreements. Legal professionals with experience in international family law can provide:
- Invaluable advice on how different jurisdictions might treat assets.
- The implications of non-disclosure.
- Strategies for effective valuation.
Their expertise ensures that settlements are legally compliant and fair to all parties involved, reflecting the actual value of the global asset pool.
What is a Power of Attorney?
A Power of Attorney (POA)is a legal document that grants one or more individuals the authority to make decisions on your behalf. This becomes particularly important if you lose the capacity to make these decisions yourself. The scope of these decisions can range from financial matters to healthcare choices.
Joint vs. Severally Appointed Power of Attorney:
- In a joint appointment, attorneys must make decisions together. This approach ensures checks and balances, as no single attorney can decide without the agreement of the others.
- However, this can be cumbersome in situations where quick or individual decisions are necessary. If one attorney is unable to act (due to illness, death, or other reasons), the power for all cases, potentially leading to complications.
- When attorneys are appointed severally, each can act independently of the others. This setup offers greater flexibility, allowing decisions to be made more swiftly.
- The downside is the reduced oversight, as each attorney can make significant decisions without consulting the others.
Joint and Several Appointments:
- This is a hybrid approach where attorneys can either make decisions together or independently. It combines the oversight of joint appointments with the flexibility of several appointments.
- The power does not cease if one attorney is unable to act, making it a more resilient arrangement.
Considerations for Choosing the Right Type of Appointment:
- Trust and Cooperation: The level of trust and cooperation among the appointed attorneys is crucial. Joint appointments require a high degree of harmony and agreement.
- Flexibility vs. Oversight: Consider whether the need for swift, independent decision-making outweighs the need for unanimous decisions.
- Potential for Changes: Life circumstances can change. Joint appointments may become impractical if one attorney becomes unable to act.
Understanding the Different Purposes of Power of Attorney:
A Power of Attorney (POA) is not a one-size-fits-all document. Its purposes vary, depending on the needs and circumstances of the individual. Understanding these variations is key to making an informed decision about which type of POA is right for you.
· General Power of Attorney:
- This type of POA grants broad powers to the attorney to manage a wide range of affairs. It’s often used when someone needs assistance with their affairs for a short period, such as during overseas travel or a hospital stay.
- The authority under a general POA usually ceases if the person becomes mentally incapacitated.
· Enduring (or Durable) Power of Attorney:
- An Enduring Power of Attorney remains effective even if the person loses mental capacity. This is crucial for long-term planning and is often used in the context of aging and health-related incapacity.
- It allows the appointed attorney to make decisions about property, financial affairs, and, in some jurisdictions, health and lifestyle decisions.
· Medical or Health Care Power of Attorney:
- This POA is specifically designed to grant decision-making power regarding medical treatment and health care. It becomes active when a person is unable to make their own medical decisions.
- The appointed attorney makes decisions based on the person’s medical needs and may consult with healthcare providers.
· Limited or Special Power of Attorney:
- A Limited Power of Attorney is for specific purposes and often for a limited time. It’s used when someone needs an attorney to handle specific matters, like selling a property or managing a particular financial transaction.
- The authority is limited to the specific task or period outlined in the document.
Deciding Between a Joint or Severally Appointed Power of Attorney:
Deciding between a joint or several Power of Attorney appointments depends on your unique circumstances, the nature of decisions to be made, and the dynamics among the people you choose to empower. It’s a decision that requires careful consideration and, often, legal advice to ensure that your interests are safeguarded in the way you intend.
Remember, the choice you make today will have a lasting impact on how decisions are made on your behalf in the future. Choose wisely.