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North Brisbane Divorce Lawyers

Do I still need a lawyer if I’ve reached an agreement with my former partner? | North Brisbane Divorce Lawyers

We as family lawyers love hearing that a separation was amicable, or that someone is still on good terms with their former spouse or partner. However, agreeing to divide your property without obtaining a legally binding property settlement can leave you exposed in a number of ways.

Limitation periods

If the limitation period has not yet lapsed (see our article on time limitations), your former partner may initiate proceedings in Court seeking a legally binding property settlement, even though you have previously agreed something informal between yourselves.

Even where the limitation period has lapsed, if the Court is satisfied that hardship would be caused to your former partner or a child if leave were not granted to bring the action out of time, leave may be granted for your former partner to bring the matter before the Court outside the limitation period.

Generally, the property pool which is available for division between parties is the property pool as it exists at the time that a final property settlement is made.  Any assets acquired by either party post separation from savings or other assets acquired during the relationship may then be included in the property pool available to be divided between the parties (although adjustments may be made in favour of a party regarding their particular contribution post separation). If then, for example, you had received the family home when you negotiated an informal settlement with your former partner and since sold that property and used the funds from the sale to buy a new house, that new house (including any increase in capital value since its purchase) may form part of the property pool available for division with your former partner.

Legally Binding Agreements

There are a number of ways you can make your agreement for the division of property legally binding.

These include:-

  1. Consent Orders- the terms of the Orders are agreed between the parties and an Application signed by each party is filed in the Registry of the Family Court seeking that the Court issue the orders in the terms as agreed;
  2. Court issued Orders – after the parties have progressed through a trial, the Court determines what is a just and equitable division of property; and
  3. A Binding Financial Agreement made in accordance with the requirements of the Family Law Act 1975 (Cth).

When parties are able to agree as to how to divide their property, whether that’s over a cup of coffee or with the assistance of a lawyer, a lawyer can then assist with drafting the Application for Consent Orders as well as the Orders that you are seeking that the Court issue.

North Brisbane Divorce Lawyers

Why you still need a lawyer | North Brisbane Divorce Lawyers

It will be important to first obtain legal advice where you are seeking Consent orders to ensure that the proposed division of property is within the range of what the law would regard as just and equitable for your particular circumstances.

Contact our team of North Brisbane Divorce Lawyers today for an initial consultation regards how best to finalise your property settlement.

Property Settlement Lawyers

Can you obtain exclusive occupation of the former matrimonial home after a separation?

Going through a separation? You might be wondering who gets to continue using the matrimonial home. Could you be entitled to the sole use and occupation of it?

Example Scenario:

Alfie and Joan are married. They have recently separated but have both continued to live at the former matrimonial home with their two children, Colin who is 16 years of age and Danielle who is 12 years of age. Colin is currently undertaking year 12 exams and is struggling with the conflict between his parents. Colin tells Joan that he can’t keep studying with the ongoing conflict and needs to have a quiet space. Joan asks Alfie to leave the family home to help make the home environment more suitable for the children and to allow Colin and Danielle to finish off the school year. Alfie is not happy about this and says that he won’t leave.

Question: Can Joan remain in the family home and require that Alfie live in alternate accommodation?

Separation

Who gets to use the matrimonial home following separation?

This issue of who will remain living at the former matrimonial home frequently arises when a couple separates. Some people will be able to resolve arrangements amicably and may agree to remain separated whilst living under the same roof.

Real difficulties can arise however where parties are not amicable. One party may not be able to  afford to arrange other accommodation but at the same time, the other party may not be willing to leave the former matrimonial home.   The parties may have children living at home and there may be issues involving domestic violence or abuse.

Section 114 of the Family Law Act 1975 (Cth) allows a party to a relationship (married or de facto) to apply to the Court for an injunction restraining the other party from doing a number of things, for example:

  1. from entering or remaining in the family home;
  2. from entering or remaining in the suburb in which the home is located.

Before such an order may be made, the Court hearing the matter must be satisfied that it would be “proper” to make the order.

Factors that a court will consider in determining what order may be proper to be made include:-

  1. The means and needs of the parties;
  2. The needs of the children;
  3. Any hardship to either party or to the children; and
  4. Where relevant, whether conduct of one party may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.

This is not an exhaustive list and there are other factors which the Court in its discretion may consider.

The party seeking the order for exclusive occupation must satisfy the Court on the balance of probabilities that there are sufficient circumstances that justify the Court in making such an order.

Where domestic violence and abuse is occurring, it can be expected that the Court will place significant weight on the negative impact of that abuse upon the children when considering all the relevant factors.

You are welcome to contact us or call us on (07) 3506 3651 if you are needing assistance settling your living arrangements and financial affairs with your former partner following separation.

Reducing conflict following a separation

How to keep conflict at bay following a separation. 

Avoiding conflict following a separation

You may dread receiving emails or texts from your former partner. There may be sense of shock every time you see his or her name come up on your screen for fear of what new accusation there may be against you.  Changeover times for the children may be full of stress and tension for you having to deal with your former partner.

What to do in that situation?

One of the “mantras” of the Family Law Act is best interests of the children.  “Best interests” is the paramount consideration guiding a Court when determining what should be the care arrangements for children.

We would probably all agree that best interests includes keeping children out of any conflict between parents following a separation.   And not only for the sake of children.

Continuing conflict with your former partner can also keep you from being able to move forward with your life. It can erode your confidence over time and leave you feeling isolated from friends and family.

Sadly, you may find an escalation in conflict with your former partner as you seek to resolve your family law issues following separation. That is not an uncommon experience but the good news is that tensions often settle down after you have finalised the division of property or care arrangements for the children.

In the meantime though, it is important that you do what you can to reduce conflict with your former partner and the stress that that can cause for you and your children.

Often, that conflict is seeded in tensions that developed during your relationship and has a long and complex history. It may be that truly resolving that conflict would require real change in both you and your former partner.  Where you are separated, you need to be realistic then about what you can achieve. Since you can’t change your former partner, any reduction in conflict is going to depend upon change in you and your approach to the conflict.

Here are some suggestions which we hope you will find helpful:

  1. Try to bury the past: This may be easier said than done as you may feel very strongly that things have not happened – and maybe still are not happening- as they should in your former partner’s dealings with you. It will help though in your current communications if you do not make comments about what has gone wrong in the past. You can’t control what comments your former partner may make but if you can do this, it should help defuse ongoing tension.
  2. Be careful in your choice of language: As much as possible, be polite to your former partner in the way that you address him or her. You may feel that your former partner has been at real fault in his or her treatment of you. You may well be right. However, if you use language of blame or accusation directed at your former partner, it will be hard to see improvement in the way you communicate. Even if he or she continues to be rude to you, if you can keep communications polite and not “fuel the fire”, it will likely help you in your feeling about communications. It is harder too for the other person to keep on the same negative track if you are not responding in kind.
  3. Making some mutual ground rules: You should give some thought to what situations or issues may be commonly causing conflict between you. For example, it may ease tensions if you both set some ground rules such as not making calls to each other after a certain time of night or agreeing that you will each only use certain language when addressing each other.   If you are in the middle of trying to reach a property settlement or formal arrangements for your children, it may ease tensions if you agree that you will not speak to each other about these issues but that all communications on those areas must be by email between you or conducted only through your solicitors.
  4. Making your own ground rules: If you are finding that your former partner is sending you a barrage of emails or texts and you are feeling harassed, you should carefully consider if it is really necessary for you to reply to a particular communication before you go ahead and do that. Choose to respond only when it is essential for arrangements for the children.
  5. The bottom line: If your former partner persists in conduct that leaves you feeling threatened or at risk, then you may need to take other measures. Contact us for advice in this situation.

 

Merry Christmas from the LGM Family Law Team!

It’s beginning to look a lot like Christmas! From the LGM Family Law team, we wish you a safe and Merry Christmas. With only two more sleeps to go, we thought we’d share some of our favourite ideas on how to spend them.  

Merry Christmas from the LGM Family Law Team

Christmas Parade – Take the family into the City to catch a glimpse of the spectacular free Christmas Parade hosted by the Brisbane City Council in Queen Street Mall. Running from 7 – 7:30 pm tonight and Christmas Eve, it’s the perfect way to get into the holiday spirit.

Christmas Light hunting – Discover the best Christmas light displays in your local area with 4KQ’s Christmas light winner’s list. Feel the Christmas magic as you gaze at the incredible lighting displays.

Beach Cinema – Unwind while watching your favourite Christmas movie classics on the big screen. Hosted at South Bank Parklands at Streets Beach, enjoy a free viewing of Elf with your family tonight from 6 to 7:30 pm.

Most of all, make sure you take the time to enjoy your Christmas break with friends and family.

Tips for arranging Christmas post-separation

Christmas is a time for joy, love and sharing. If this is your first Christmas post-separation, here’s a few tips to ensure the holiday remains festive for you and your family.  

Ensuring Christmas remains a merry time for you and your kids, post-separation.

 

 

 

Christmas pre-separation, its synonymous with excitement, happiness, and probably Santa. Christmas post-separation, brings a whole new category of synonyms. They don’t have to be negative, but without the right planning and discussions, it can end up being a time full of turmoil.

There are multiple avenues to consider when discussing arrangements with your former partner for time with the children on Christmas Day. The most common arrangements are:-

  1. A time-sharing arrangement. An example would be the children spend 9:00am on Christmas Eve to 12:00pm on Christmas Day with one parent and 12:00pm on Christmas Day to 5:00pm on Boxing Day with the other parent; or
  2. An alternate year arrangement. An example would be that the children spend the entirety of Christmas Day with one parent in any year ending in an even number and with the other parent in all years ending in an odd number.

Both have their pros and cons. You need to work out what works best for you and for your children.

Consider:-

  1. Do you like to go away over Christmas?
  2. Will either of the above arrangements affect your Christmas traditions?
  3. Do you live close to your former partner? Is travelling for a changeover on Christmas Day practical?
  4. Do your children have daily routines/requirements that can’t be skipped on Christmas Day? Will this affect changeover times?

First and foremost, consider how your children will cope with either of the arrangements.

Consider putting a proposal forward in writing to your former partner setting out exactly how the Christmas period could work and ask for your former partner’s opinion and requested changes on your proposal. Negotiate from there.

If you still can’t reach an agreement or if it is better for you to correspond through a lawyer, contact us and we will be happy to prepare a letter to your former partner setting out your proposal and settle an agreement.

Online harassment following a separation? Here’s what you can do.

You’re experiencing online harassment and being tormented by an unknown author. You have suspicions it’s your ex. What can you do?

Online harassment following a separation

Online harassment and abuse by a former partner can sometimes follow in the aftermath of a separation. Harassment can come in many forms. It may be defamatory materials published or inappropriate sexual comments directed at you or a family member. All types of online abuse can be hurtful, damaging to you or a family member’s reputation and even threatening.

It’s important for you to know who you can turn to for help and stop the abuse before it gets worse. Our family law practice has the experience and understanding to assist you in the face of this kind of abuse. If you have found yourself the subject of online abuse or harassment, we’re here to help.

So, what can you do?

Unfortunately in our digital age, social media platforms like Facebook have made it easier than ever for faceless bullying to occur. You may have suspicions that your former partner is using an alias to harass you online. This is where we can help. Luckily, all activities of online users creates a trail of metadata. Metadata is data that your network provider records every single time you use your mobile device. This may include making a call or accessing the internet. Your network provider is obliged by law to record this metadata and store the information for a minimum of two years.

This data enables you to see who someone’s talking to, for how long and where the caller was when they made the call. It can also track their activities on the internet. You can even use this data to map a user’s usual route to work, pinpoint where they live and where they holiday. Information like whether they travel in a car or by public transport can also be traced. This is can be gathered even if they aren’t accessing their phone all the time.

Metadata records can also be subpoenaed by other parties. This will grant access to a record of all calls made, all internet usage and the times, dates and various locations of users at any given point in time. At our family law firm, we have experience in accessing metadata records for family law and domestic violence law purposes, to help you resolve issues such as online abuse by a spouse.

Contact us today to find out more.

Time to be savvy! Re-entering the workplace after separation

Dealing with a separation can be a challenging time. If you are preparing to re-enter the workplace after a number of years away from work, you will want to make well-informed choices about the career path to pursue.

Returning to work after a separation

With the ever-changing state of jobs and the uncertainty that advancements in technology have brought to many fields, it can be difficult to know what career avenue will be best for you following a separation.

A recent article in the Courier Mail’s “QWEEKEND” (12-13 November 2016) referred to a report conducted by the global consulting firm, PwC, indicating that over the next 20 years, 44 per cent of Australian jobs are at risk of disappearing. These harrowing figures are connected to advancements in technology. But it’s not the first-time workers have been hurt by technological advancements. When machinery took over manufacturing factories for mass production, countless jobs ceased to exist. Australian workers again face this threat of job redundancy by computers and technology that are increasingly able to fulfil roles that people previous held.

So, what does this mean for you as a current job seeker?

Although certain professions may begin to crumble away where technology offers a more efficient approach, there is a silver lining: technology is also a great producer of jobs. The internet has made it easier for individuals to create their own brand and ideas, and sell it to the world. We have seen this in the launch of countless bloggers, social media sites and online magazines.

The idea of launching your own business over the internet may sound daunting. You may be surprised though, if you stop and think into your own life experience, just how many great ideas you have that could flourish in your own business. If you’re looking to re-enter the workforce after a separation, an exciting fresh start might be just what you need.

Having your own business though is not for everyone. But whether in a business of your own or as an employee, according to Jan Owen (chief executive of Foundation for Young Australians) and Peter Coaldrake (QUT vice-chancellor), there are a number of skillsets that you will need to help keep you safe during this technological storm.

You will need to be willing to develop multiple careers over your working life. It may be that you look at one or more part time roles. The key will be to develop and enhance qualities of creativity, agility, resilience and adaptability. Owen’s predicts that traditional entry-level jobs will disappear due to automation but that the rise of digital platforms will see us more and more working remotely in our careers.

In order to find a sustainable career path that will be resilient against the advancements of technology down the track, you will need to adapt and upgrade your skills on an ongoing basis. By continually looking to the future trends of technology and being able to offer a range of transferable skillsets, you will put yourself ahead in the workplace.

Recently separated? How to ensure a smooth and enjoyable Christmas for you and your family.

Christmas is a time for celebration, so make sure your separation doesn’t affect your Christmas cheer this year.

Dealing with separation over Christmas

Everyone enjoys their traditions at Christmas – whether it is Christmas Ham and salad, BBQ on the deck or lovely roast pork & turkey cooked in the oven with the aircon on full blast!

If you are recently separated, this year there will be new traditions. Whilst separation can be hard on the children, for some, there will at least be the thrill of having Santa visit twice!

However your children may spend time over the Christmas period with you and your former partner, it is important that, as much as possible, arrangements are made in advance to help make it a great time for them and reduce any prospect of stress for you. You deserve to be happy too!

So, what can you do to help ensure a smooth Christmas that your children can enjoy?

The key is planning, preparation and communication. Here is some helpful tips to get you through the holiday season:

– Communicate with your former partner what the agreement is for Christmas (the time for changeover, who is dropping or who is collecting your children etc.).

– Communicate with your children, ask them what they enjoy the most about Christmas and try to make it happen (remembering of course, that you are the parent! If it’s just not possible for a request to happen – communicate that with them).

– Communicate the arrangement with your family and visitors so they aren’t surprised when the kids pack up to leave for time with the other parent.

– Plan your day so that you have something to do after the children have left to spend time with your former partner. Surround yourself with friends or family or give yourself a special treat.

– Prepare as much as you can the day before so precious moments with your children aren’t wasted running around the house cleaning and cooking to be ready for Christmas celebrations.

Just remember – Christmas should be a happy time for you and your children. Try not to let your children pick up on any stress you may feel. A stressed parent means an anxious child and the only thing your kids should be anxious about, is whether or not Santa will be coming!

Free Consultations with our Family Lawyers at Chermside

Monthly Free Consultations with our family lawyers! Next session 5:00pm-8:00pm on 4 August 2016. We offer complimentary consultations each month at Chermside. One of our family lawyers will be available to give you personal advice on your matter. You or a family member may have separated or may be thinking about your future direction. Whatever your situation, knowing where you stand can help you make the best decisions for you and your family. CONTACT US to make your booking. PRE-REGISTRATION is ESSENTIAL and places are limited.

Family Law Consultations

 

Or if you can’t make it to one of our free consultations held at Chermside, why not give us a call today? We know it can be tricky knowing where to start when you’re looking for advice following a separation, child custody battle or any family law matter. That’s why we provide free 15 minute consultations over the phone. You can speak with one of our senior solicitors to gain useful and immediate advice to help you start your journey forward. Call us now.

Legal Costs

How can I keep control of my legal costs?

How can you keep control of your legal costs and ensure you’re getting the best results for your money?

Legal Costs

Keeping control of Legal Costs.

 

 

Retaining an experienced family lawyer will greatly help you through the legal process and reduce the stress that comes with separation and finalising agreements with your former partners. Family law proceedings can be costly but you should make sure that you are containing those costs where you can and avoiding unnecessary costs. Here are some things to consider to help you retain control over your legal costs:

1. Obtain legal advice from an experienced family lawyer early on about your entitlement

You do have the option of representing yourself but a family lawyer can advise you what is reasonable for you to expect, whether for arrangements for your children or for property settlement. This will go a long way towards helping you to reach an agreement with your former partner sooner rather than later. Time spent claiming more than your entitlement is likely to increase both the time taken to reach a settlement as well as your legal bill.

2. Instruct a lawyer to act for you

Make sure that you obtain advice from a competent family lawyer and have that lawyer draft and finalise your legal documents. One area of activity for family lawyers is applications to Court for people who prepared their own documents only to find that they were unworkable and that further orders of the Court were needed to correct errors that could have been avoided in the first place had a competent family lawyer been involved.

3. Be Specific

Remember that lawyers generally charge on a time incurred basis. You should certainly ask your lawyer whatever questions you may have. Be careful though not to provide them with information outside of what they request from you from time to time. You will be billed for your lawyer’s time spent reviewing material so it is important for you that time is not spent reviewing material that was not requested and which is not relevant. Remember that a lawyer is entitled to bill you for their time, including where you tell them about how you may feel about your former partner’s attitude towards you or about his or her behaviours. If your lawyer requires those kinds of details, for example for a domestic violence matter or where parenting is in issue, he or she will let you know. Otherwise, it is likely better for you to speak to a trusted friend about your feelings. You may also want to consider obtaining some counselling to help you through separation which is understandably a harrowing time for many people.

4. Prepare initial important information for your lawyer

This will save your lawyer time and time saved is money saved for you. We have set out below some information that you can prepare to give your lawyer at your initial meeting. There will be other information that your lawyer will request but being ready to provide this information will help in saving time.

  • Property Matters
        : If you have

    a property matter

      , take with you to the first meeting with your lawyer a list of all current assets and liabilities whether held in your name, in the name of your former partner or held jointly or by any corporation or trust which you own or control. It will also assist to provide at least an estimate of the current market value of those items. Don’t be concerned if you do not have all of this information at the outset. You can obtain the details of your former partner’s financial position by requiring his or her financial disclosure and your lawyer can assist you with that. You should also be ready to provide your lawyer with information about the financial and non-financial contributions which each of you and your former partner made to the relationship both at the date of commencement of cohabitation as well as during the relationship. This will include what assets and liabilities you each held at or during those times as well as financial windfall gains such as inheritances as well as information regards the role that you each took in care of the children; home duties; DIY work; home renovations and administration of your lives together.
  • Children Arrangements
      : If you are concerned with arrangements for your children, be prepared at the first meeting with your lawyer to provide details of your children’s full names and dates of birth; schools they attend & some information as to their progress as well as details of any special needs; the level and kind of care that each of you and your former partner provided for the children both during the relationship and since separation; time that the children have spent with each of you since separation; the current living conditions for the children whilst in your care and whilst in the care of your former partner; any child abuse or domestic violence (including details of reports to Police and any Protection Orders applied for or obtained) & information regards any alcohol or drug abuse by either you or your former partner.

5. Provide full and frank disclosure

Each of you and your former partner have an obligation to provide full and frank disclosure of your financial position. If you finally settle your matter without having done this, you risk having any Orders you have obtained or any binding financial agreement set aside and costs awarded against you on a future application to the family court by your former partner. Your lawyer can advise you regards the documents that you are required to disclose to your former partner.

6. Be considered about how you provide your instructions

After your initial meeting with your lawyer, where practical, give what information you can by email to your lawyer. Your lawyer can then let you know if he or she wishes to speak with you about the content of the email or requires further information. If you are calling to relate limited, concise information or to confirm a meeting, it can be more cost effective to leave a message for your lawyer with his or her assistant rather than speak directly with the lawyer.

7. Set aside your personal feelings as much as possible when negotiating with your former partner

This can be difficult to do but trying to use the negotiation or court process to punish your former partner or taking a “winner takes it all” approach to reaching final agreement with your former partner will very likely result in it taking far longer to finally settle your matter. The longer it takes, the more costly it is not only for your former partner but also for you. Doing what you can to ensure that both you and your former partner are not spending money needlessly on legal costs is going to benefit both you and your former partner and therefore your children also.

8. Be willing to compromise and settle your matter as early as possible

If your wish is to press your matter to its limits, your lawyer will follow your instructions. Sometimes though, it is better to compromise and concede on some points or to take something less in a property settlement in order to finalise an agreement with your former partner. This will be particularly so where the cost of continuing with your matter exceeds the benefit or amount of what you may be conceding. Again, this is where it is important to keep a level head. There are many examples of people who refused to settle their matter and continued on only to settle at the same level or less in their favour at a later point in time but after having spent considerably more in legal fees. There is too that once you settle your matter, you can get on with living and planning for your future. For many people, this is a reason in itself to compromise and settle early.

For more information on our legal costs and services, contact us today. Or, have a look at our range of services here.

Is it okay to use Social Media and Email during my family law matter?

 

We see people letting off steam all the time through social media platforms like Facebook, twitter and Instagram. Email and text messages too are an easy way to vent our feelings. In a matter of seconds, your comments may also be shared on Facebook; your tweets re-tweeted or your emails or texts received and forwarded. Beware that using social media, email or text to vent during a family law matter is definitely a perilous thing to do.

Can social media be used in a family law matter?

Guiding Principle

The guiding principle is fairly simple. You should not use social media, email or any form of messaging to discuss or comment upon your family law matter or anything or anyone involved in your family law matter. You should especially avoid comments relating to your former partner’s behaviour or requirements concerning your family law matter; your children in relation to your separation; anything or anyone related to a family law action or comments on any other subject relating to negotiations or agreements to be entered into with your former partner.

If you do this, you risk prejudicing or at least complicating your own case. Even where you are not in Court, these entries, emails or texts may prejudice any claims that you are making for property settlement or damage your claim for arrangements that you seek for your children by revealing information that may undermine your case. Those entries may also lead your former partner or his or her solicitors to make enquiry about matters that would not otherwise have come to their attention but for the communications that you may have made.
If you are in Court, you may well find that your social media entries or emails or texts are reproduced in your former partner’s affidavits to your detriment.
You may also be committing an indictable offence under section 121 of the Family Law Act 1975 (Cth).

Prejudice to your case/Live Examples

Imagine for example that you are claiming that you are available to care for your children and are therefore seeking that they spend time with you for five nights every fortnight. An entry that you made on facebook some time previous however refers to your plans to work interstate on a fly in fly out basis. It may be that those plans have been aborted or it may be that your fly in fly out arrangements do not interfere with the care arrangements that you are seeking for your children. Either way, production of that facebook entry by your former partner or his or her lawyers may well complicate your claim.

Another example would be facebook posts or tweets that refer to your recent overseas travel at a time when you are claiming spousal maintenance from your former partner. You are entitled to enjoy a holiday. It may even be that the particular holiday was done on a close budget. However, whilst you must disclose details of your financial circumstances, facebook entries of this kind in the hands of your former partner or his or her solicitors may again complicate your claim, possibly raising the spectre that you may not have the required financial need for spousal maintenance or causing your former partner or his or her solicitors to make enquiry requiring further disclosure of any other funds that may be available to you.

Risk of breach of Family Law Act and possible prejudice to claims you are making

Comments that you may make through social media, email or messaging, for example, sharing a post on facebook or instagram or tweeting, may involve a breach of section 121 of the Family Law Act punishable on conviction by imprisonment for a period of up to one year. There may be a breach of that section where those comments identify any parties; related persons (such as children; an Independent Children’s Lawyer of Family Report Writers) or witnesses to proceedings before the Family Court of Australia or the Federal Circuit Court of Australia. You should be aware that your former partner and his or her lawyers may be looking at your facebook entries. This will be a risk even where you have strong privacy settings or you have set up restricted groups to share information.

The safest policy

…is to avoid using social media during your family law matter and not to make any comment about it; your former partner or any other person connected to your family law matter in any emails or messages that you may send.

If you need advice or want to learn more, contact us today and receive a free 15 minute consultation.

Divorce

What should you document to help you in getting a divorce in Qld?

Filing for divorce? It’s important to know what documents you should prepare in order to help you in your divorce hearing.

Getting a divorce in Qld

Getting a divorce in Qld?

If what you are wanting to obtain is a divorce, you will need to complete an Application for Divorce and file the Application and other required documents at the Registry of the Federal Circuit Court of Australia. The relevant divorce papers Qld and for Australia, can be downloaded from the Family Law Courts website
www.familylawcourts.com.au

In order to apply for a divorce in Australia, you must have lived separately and apart for a period of not less than twelve months before the date that your application for divorce is filed and there must be no reasonable likelihood of a reconciliation. Either you or your former partner must also satisfy certain requirements regards Australian residency, domicile or citizenship.

You will need to provide the Court with a copy of your marriage certificate when filing for divorce as well as an English translation and Affidavit from the translator if your certificate is not in English. You may also need to provide the Court with a copy of documents establishing Australian citizenship. Dependent upon your circumstances, there may be some further documents that the Court may require.

If you qualify for getting a divorce in Qld or another state, then provided that you supply the necessary information to satisfy the Court, provide the copy marriage certificate with the Application and meet any requirement for service of the Application on your former partner, in the usual case, you can generally expect that your application for a divorce will be granted. The information that is required for getting a divorce in Qld and other states is set out in the Application. You should obtain legal advice regarding whether in your circumstances, any further documents in addition to those identified in this article, may be required to be filed at Court.

You can make a sole Application or a joint Application which your former partner and you will both sign. If you make a sole Application, you must then arrange for the Application to be served on your former partner. There are specific requirements for service.

You will need to show in the Application that appropriate arrangements have been made for the welfare of dependent children but the granting of a divorce does not decide issues about arrangements for your children, property or maintenance.

If you have separated from your former partner, you will also need to make a property settlement which needs to be confirmed by a final and binding agreement. This can be done by obtaining Consent Orders which are issued by the Court but you do not need to go to Court to obtain them. You may also wish to have Consent Orders for arrangements for your children or a parenting plan That plan is not a legally enforceable document but can help with help with confirming arrangements for children that you and your former partner have agreed in principle.

For more information on getting a divorce in Qld or Australia, click here. Or contact our family lawyers today for a free 15 minute consultation.

Court Hearing

Tips for Appearing in Family Courts

Preparing for a family court hearing? It can be a stressful and emotionally-fulled time in the lead up to a court hearing. However, it’s important to know what to expect and how to prepare for your court hearing in order to achieve the best outcome.

Court Hearing

Preparing for a court hearing in family law.

This article is intended to help you whether you are representing yourself in a court hearing or are going to have legal representation. We have set out below some of the things that you should do preparing for Court as well as things to do and things to avoid in the courtroom.

Be Prepared

You will need to be sure that you have prepared and filed with the Court within the required time all of the documents that are required for your next hearing. If you are self representing, it will help you to find what you need when you are before the Court if your files are organised and clearly marked. Make sure too that you have a pen and note pad with you. If you have not been in a court before, it can help put you at your ease if you sit in a courtroom before your hearing so that you can see the court layout and understand something of the court process. Most court hearings are heard in open court so that you are permitted to enter the court.

What to wear in Court

The court is a formal place so you should dress accordingly. If you are a man, this does not mean having to wear a suit but long trousers, a shirt and appropriate shoes are a good idea. For women, a neat dress or long pants and shirt would be appropriate to wear.

Make other arrangements for your children

You should make arrangements for your children’s care for the day when you come to court. Court is not generally an appropriate place for children.

However, if as a result of a Court Order, your child needs to attend court to speak to a family consultant or judicial officer, you should check with court staff or through your solicitors in advance whether any child-care arrangements need to be made for the day.

Family and friends

You may wish to bring an adult family member or adult friend with you on the day in Court for support. There may be quite a bit of time that day spent waiting for your case to be called before the Judge or Registrar so it can be helpful to have some company. However, you should know that it is only your solicitors or if you are self represented, you, who may speak on your behalf in Court unless Court approval is obtained.

Arrive Early

We suggest that you arrive at Court at least 30 minutes before the time set down for the hearing and once there, locate the Court where your case will be heard.

There is generally a duty lawyer available (if you are eligible for assistance) to assist you on the day of your court hearing but you should be aware that their time is limited.

Inside the courtroom

The court officer or associate will generally appear outside the courtroom some time before the time that your case is set down for hearing. If you are self representing, before you enter the courtroom, you should present yourself to the court officer or associate and give them your name and let them know that you are self representing. If you have solicitors acting for you, they will inform the court officer or associate of your presence.

Once inside the courtroom, you will have to wait for your case to be called as there may be a number of cases listed on the same day. During this time, you should avoid talking whilst the Court is in session. You will need to stand each time that the Court commences or adjourns. The court officer or associate will signal the appropriate time to stand by saying ‘All rise’ or ‘Please stand’.

When your case is called and addressing the Court

When you hear the court officer or associate call your case, you should stand and sit in the place where your solicitors indicate behind them at the bar table.

If you are self representing, you should walk to the bar table as the court officer or associate directs. You will need to take your files and paperwork with you but be careful not to put any bags or cases on the bar table.

If you are self representing, you should stand whilst you and the other parties announce themselves. You announce yourself by stating your name and whether you are the applicant or respondent.
In the Family Court, either a judge or registrar will hear your case. In the Federal Circuit Court, a judge or for divorce hearings, a registrar, will hear your case. You should address a judge as ‘Your Honour’ and a registrar as ‘Registrar’.

Where you are self representing, you should stand each time that you are speaking or being spoken to in Court unless the Court directs you otherwise. You should be careful to speak clearly and politely and not to address any person other than the judge or registrar. You should not raise your voice and your face should be impartial no matter that the other party or his or her Counsel may make comments with which you do not agree.

When Orders are made and leaving the courtroom

The judicial officer will state the orders that are made and reasons given. Those orders will not be issued in hard copy until some time after the hearing so it is important if you are self representing that you write them down when they are being announced as well as reasons given. If you miss hearing part of the orders or are uncertain as to what was said, whilst you are still at the bar table, you should ask for the orders to be repeated once the judicial officer has finished speaking. If you do not understand any of the orders, you should ask the judicial officer to explain their meaning.
If a decision is reserved or held over for another time or date, you must attend court when the decision is handed down.

The Orders made will generally state the time and date for the next hearing if your case is ongoing. Once orders on a particular day are made, you can leave the bar table and the courtroom. If the Court is still in session after your matter is heard, as you leave the courtroom (and any time that you enter or leave the courtroom when the Court is in session), you should pause briefly at the door briefly and nod to the judicial officer. If your case is the last to be heard on the day, you should stand at the bar table while the judicial officer leaves the bench.

Personal Safety

If you have any worries about your safety, you should let the Court know at least two days in advance of any court date. The Court can assist with your safety when attending court. You can inform the Court by calling 1300 352 000 and speak with a Client Service Officer who will decide what arrangements are needed for your safety at Court. You must tell the Court in advance if there is a current family violence or protection order.
If you have concerns about your safety outside the Court or any questions about family violence, you should contact the police or seek legal advice about obtaining a Protection order.

If you’re looking for legal representation in a family court hearing or would like some legal advice, our family lawyers are happy to help. We even offer free 15 minute consultations over the phone.

Dispute Resolution

How could Family Dispute Resolution help you?

What is family dispute resolution and how could it help your situation?

Dispute Resolution

How dispute resolution could help your family.

It is surely in children’s best interests that parents agree arrangements concerning them following separation. This avoids the trauma that children can suffer where a legal action is involved and also reduces the legal costs of reaching a final agreement.

Parties can work towards reaching a consensual agreement with the assistance of professionals such as counsellors and mediators. However, where an amicable agreement cannot be reached, before a Court action may be started seeking parenting orders, parties are required to have attended family dispute resolution and obtained a certificate (known as a section 60I certificate) from a family dispute resolution practitioner. This requirement does not apply in certain situations, including where an application is urgent or where there has been, or there is a risk of, abuse or family violence.

A family dispute resolution practitioner assists people effected or likely to be effected by separation or divorce to resolve some or all of their issues with each other.

For more information on separations or parenting plans, see our website. Or, you can contact our friendly staff today and get the help you need to move forward in life. You can even give us a call and receive a complimentary 15 minute free consultation with one of our experienced legal team members.

Family Solicitors

What is Property Settlement?

Going through a separation and need to divide your property? A guide to property settlement and what it means, from our family solicitors.

Family Solicitors

Property Settlement explained by our Family Solicitors.

 

Property settlement is the process of finalising the financial ties and arrangements that you have with your former partner. The complexity of dividing your property can depend on a number of factors, but it’s important to understand what it is and how it works. Our family solicitors have provided a simple guide to property settlement.

You and your former partner may own a house where you lived during the relationship or you may own rental properties. You may have a business or hold other property or investments. Whether property is owned by you and your former partner jointly or separately, it will need to be decided what happens to each item of property in a property settlement.

For example, the house or different rental properties may be sold or you or your former partner may retain one or more of those properties and take over any mortgage/s over that property.

However property is divided, the value of each asset and liability is agreed so that an account can be taken to ensure that each of you and your former partner receive your overall entitlement in the property settlement. For example, if one of you retains the house and there is no other real property, it may be that the other party receives some cash payment or other asset.

The way in which assets and liabilities are divided will depend upon several factors. The Family Law Act 1975 sets out the different steps that are considered to work out what entitlement each of you and your former partner will have to property settlement.

There is no mathematical approach. Each relationship and your personal circumstances are different. Hearing from friends then about other people’s experiences may be interesting but it is not going to tell you where you stand.   You will need to obtain advice based on your personal circumstances about how property may be divided with your former partner.

Want to learn more about property settlements? Read here. Or, give our experienced family solicitors a call today.

Family Law Solicitors

What if my former partner won’t agree to have a property settlement?

You want to obtain a property settlement but your former partner refuses. What can you do? Our experienced family law solicitors shed some light on this issue.

Family Law Solicitors

Property Settlement advice from our Family Law Solicitors.

 

It sometimes happens that a former partner does not want a property settlement, whether for personal reasons or because they do not understand the process.

Even in this situation, you can obtain a property settlement. We would generally recommend that you write to your former partner through your lawyers and propose negotiating a property settlement or some other processes such as mediation at an appropriate time.

If your former partner does not respond or does not respond in a reasonable way, you have the option to bring an Application for property settlement before the Court. We regard a court action as the last resort, particularly in view of the costs that can be involved. However, in some situations, especially where attempts at negotiation become protracted or time limitations may be ready to expire, it can be sensible and even necessary to start a court action.

You should bear in mind that you and your former partner may still reach an agreement and obtain Consent Orders even after a legal action is started. The Court will anyway generally order some form of mediation and many parties will settle property then or soon after.

For more information on property settlements, click here. Or, get in touch with our family law solicitors today.

Brisbane Family Law

Are you in a De Facto Relationship? Our Brisbane Family Lawyers explain the difference.

There can be a lot of unknowns as you try to approach family law. If you’re not married, you may be particularly confused as to whether you hold any rights under family law for assets and property previously shared with your former partner. Our Brisbane Family Law experts break down ‘De Facto’ relationships, and what legal rights individuals in a De Facto relationship may hold.

Brisbane Family Law

Brisbane Family Law Firm

Why is it important?

If you never tied the knot with a ring and separated after 1 March 2009, you will still have the same rights and responsibilities under the Family Law Act 1975 as a married couple have provided that at law you were in a de facto relationship that meets the requirements of the Act.

The importance of this is that your entitlements and considerations under that Act will apply in any negotiations with your former partner or if you find that you have to take a legal action, you may have your claim for settlement of property or arrangements for your children considered by the Family Court. Read on to find out from our Brisbane Family Law team what qualifies as a de facto relationship.

Legal Requirements for a De Facto relationship

You and your former partner:

  • Must not be married or related;
  • have or have had a relationship as a couple living together on a genuine domestic basis for at least 2 years (or a lesser period if there is a child of the de facto relationship; the party making a claim made substantial contributions to the relationship and serious injustice would be caused if Orders were not or the relationship is or was registered under certain State law); and
  • meet the residency requirements which you can read on our blog “De facto Relationships and bringing a claim under the Family Law Act 1975”.

Think it may apply to your situation? Our Brisbane Family Law team help break down these points further.

A couple living together on a genuine domestic basis

Some people may be surprised to find that the law will consider that they are in a de facto relationship. Still others may believe that they have a de facto relationship but later find that a Court does not take that view.

Factors that are considered when working out whether people are in a de facto relationship include:

  • the length of the relationship;

the nature and extent of their common residence. (Parties can be in a de facto relationship even though they do not live together in the same residence at all times. However, it may be less likely that there would be a finding of a common residence where the claimed common residence is not on the facts regarded as a party’s home; where a party does not have keys to the property claimed to be a common residence; where a party does not have the other party’s permission to use the property which is claimed to be a common residence to entertain his or her friends) and where the parties do not jointly host social occasions at the claimed residence);

  • whether there is a sexual relationship (It will not necessarily matter that the sexual relationship may not be exclusive or that a party may have sexual relations with other persons during the currency of the de facto relationship);
  • the degree of financial dependence or interdependence, including any arrangements for financial support between the people involved. (This factor may be regarded as neutral where a party of considerable wealth provides separate accommodation rent free and some financial support to the other party who claims to be in financial need and where that other party does not use any of his or her financial resources for joint endeavours);
  • how property is owned, used or acquired;
  • the extent to which there is a mutual commitment to a shared life;
  • whether the relationship is or was registered under prescribed law;
  • the care and support of children;
  • the reputation and public aspects of the relationship.

It is not necessary for all of these factors to be present before the law will regard that parties are in a de facto relationship. The circumstances of the particular relationship must be considered and no two relationships are the same. The following are given as examples only of how the Courts have considered some different relationships:

In the first example, a Court found that there was a de facto relationship where parties had cooperated in the management of property; shared a common residence, bedroom and business interests; each cared for a child of the relationship and were known in public as a couple.

In our second example, a de facto relationship was found to exist over the period when the parties had cohabited (though for less than 2 years); acquired joint property as well as a shared franchise business and shared holidays away together. The de facto relationship existed even though the de facto wife married a third party and for a time ceased sexual relations with the de facto husband.

In our third example, a Court found that there was no de facto relationship due to a number of factors including the clandestine nature of the relationship and that the parties both strived to ensure that they were not publicly identified as being together.

Our last example involved a man of considerable wealth who had provided financial support to the applicant and separate rent free accommodation. The Court refused to make a declaration that a de facto relationship existed. In that case, the parties had been in a relationship for about 5 years. No property was jointly owned by the parties and the parties did not have a common residence or any mutual commitment to a shared life.

The Court found that the respondent had made a commitment to an arrangement whereby he and the applicant enjoyed a sexual and social relationship and he financially supported her. On the evidence, the Court found that the applicant had a commitment to a life where she and the respondent would eventually live together once they were married. There was no mutual commitment between the parties; each party was committed to a different relationship.

Want to legal advice?

If you’re after more advice on de facto relationships, click here. For information on other services see our divorce law, separations, property settlement or child custody pages. If you’re looking for tailored legal advice, our Brisbane Family Law team are here to help. We offer free 15 minute phone consultations to help you get started in the right direction with your family law matter. Call us today.

Consent orders

What are Consent Orders?

You might have heard of consent orders before, or this could be your first time. No matter how little or much you know, it’s good to have an idea of what they do and how they could benefit your situation.

Consent orders

Consent orders: What are they?

There are a lot of different orders that can be drawn up before a marriage, during a marriage and after a marriage concerning the settlement of property and other assets. Consent orders fall into the last category concerning property orders. So, it will affect you and your former partner, should you choose to go through this process.

What are consent orders?

Consent Orders are Orders issued by the Court that both parties to a relationship have agreed. An Application for Consent Orders signed by both parties is made to the Court. It is not necessary that parties actually attend Court. The Application including the proposed form of the Orders are reviewed by a Court Registrar and the Orders are issued by the Court if the Registrar is satisfied that the proposed settlement is just and equitable.

Whilst you may prepare your own Application for Consent Orders and the Orders that you are seeking to accompany the Application, it is advisable that you seek legal advice to ensure that the documents are appropriately drafted and that the Orders that you are seeking address all necessary issues and provide, in the case of property Orders, for a division of property that the Court is likely to approve.

To find out more about our services or what to do following a separation, click here. Or, you can get in touch with us today. It is better that you obtain legal advice early on to know where you stand and avoid pitfalls. We will be happy to give you some complimentary advice over the phone or book a fixed rate initial consultation

Divorce Lawyers Brisbane

Practical Steps to Consider on Separation from our Divorce Lawyers Brisbane Team

Separation is generally a very difficult time for both you and your former partner. It is better to be prepared to the extent possible. Read on to learn about some of our practical steps to consider on a separation, compiled by our Divorce Lawyers Brisbane Team.

Divorce Lawyers Brisbane

Practical steps to consider post separation from our Divorce Lawyers Brisbane Team

The following are items are a number of recommended steps for you to consider from our experienced Divorce Lawyers Brisbane Team. However, some of these steps may not be appropriate in your particular circumstances. We recommend that you take legal advice in regards to what is best for you.

  1. Keep a note of the date of separation and communicate that you are separated to your former partner: This step is always important; the date of separation bears upon when you may file an Application for Divorce or for de facto couples, the date by which you must if necessary file an application in Court seeking Orders relating to property or maintenance.
  2. Secure children’s passports and birth certificates:   This will give you peace of mind where there is a risk that your former partner may try to take the children out of the country.
  3. Remain in the marital home: You do not lose your rights to property settlement if you do leave the home. Practically speaking, you may need to leave the home if domestic violence is involved and your partner will not leave. However, if this is not a factor, it may be better for you to remain in the home, particularly if the children are living with you and this is less disruptive for them.
  4. Counselling: Consider counseling for both you and your children.
  5. Ensuring that you have funds: Consider securing a sum of money from your own sources or joint sources to meet likely initial expenses that you will have, for example, any accommodation costs and the cost of obtaining legal advice.
  6. Protect your finances: Where your salary is credited to an account to which your former partner has access, consider redirecting your salary to an account which only you can access. If there is any redraw facility on a joint loan account or a joint line of credit, dependent on your circumstances, consider notifying the Bank that you require that any further draws are only made with the prior written consent of you both. If you are the primary holder of a credit card and your former partner is the secondary holder, consider also drawing sufficient funds on your loan account or line of credit before requiring joint authorities to do this so that you can pay out any outstanding balance on the credit card. Dependent upon your circumstances, you may also wish to consider cancelling the secondary card. It will be important to ensure that any jointly held investments may not be sold except with joint authority.
  7. Changing title registrations: Consider whether the title registration of any jointly held real property should be changed from a joint tenancy to a tenancy in common.
  8. Property held solely in the name of your former partner: There are measures which may be taken to protect your interests. You will generally wish to ensure that property is not sold or further encumbered before final agreement for division of property is reached. Contact our Divorce Lawyers Brisbane Team for advice regarding how this may be done.
  9. Changing passwords: You should also consider changing your internet banking passwords and your password for any investments held whether in your sole name or jointly (for example, unit trusts) or for access to information concerning your superannuation or insurance policies.
  10. Protect your data: Consider changing your password on your computer or other software and ensure that your documents are protected.
  11. Secure or take your important financial documents and medical records. Contact us for advice regards details of documents that you will need.
  12. Nominated beneficiaries: Consider any changes you wish to make to nominations made on your superannuation or insurance policies. You may have previously nominated your former partner as beneficiary of these policies in the event of your death.
  13. Obtain independent legal advice regarding family law matters: We recommend that this is done at an early stage. It will be important to ensure that you do not unwittingly prejudice your position. Our firm will try to settle client matters without going to Court. We do this through negotiation or attending mediation with you and the other party. Once there is agreement in principle, it is very important that that agreement is documented in a manner which is final and binding. This may be done by way of a Consent Order issued by the Court but without the need for you to attend at Court.
  14. Obtain other professional advice: Consider obtaining-
  15. financial advice from your accountant regarding tax obligations, including any outstanding tax obligations and any obligations that you may have as a director of any company that you and your former partner own or as a partner in any family business. Consider also obtaining financial planning advice, including regarding how it may be best for you to receive your property entitlement and how to then deal with those assets that you receive or retain.
  16. estate planning advice, including whether you should make another will (since separation does not revoke an existing will); make an Enduring Power of Attorney or revoke an existing one where your former partner is appointed attorney and will otherwise continue to have control over decisions regarding your health or financial affairs.
For more tips and advice regarding separation, click here. Or, contact our experienced divorce lawyers Brisbane team today for tailored legal advice.
Family Law Act

De Facto Relationships and bringing a claim under the Family Law Act 1975

Are you in a de facto relationship? Are you wanting to know what your rights are and how you can bring a claim under the Family Law Act? Find out here.

Family Law Act

De Facto relationships and the Family Law Act

If you are or have been in a de facto relationship (whether heterosexual or same sex) and separate after 1 March 2009, you will generally have the same rights and responsibilities in Australia as married couples under the Family Law Act 1975 and before the Family Court.

For claims under the Family Law Act 1975, a couple must have been in a de facto relationship living together on a genuine domestic basis for at least 2 years. That 2 year requirement will not apply though if there is a child of the de facto relationship; the party making a claim made substantial contributions to the relationship and serious injustice would be caused if Orders were not or the relationship is or was registered under certain State law.

There are also some residency requirements for claims under the Family Law Act 1975. Parties to the de facto relationship must have been ordinarily resident in any Australian State (other than Western Australia and South Australia) when the relationship broke down or alternatively:

  • either or both parties must have been ordinarily resident in any of those States when an Application for Orders of the Court was made; and
  • both of the parties must have been ordinarily resident in any of those States during at least a third of the relationship or the Applicant for the Orders must have made substantial contributions, of a kind specified in the legislation, in relation to the de facto relationship in one or more of those States.

If you do not qualify to have your property matter heard in the Family Courts, you may qualify to be heard in Queensland under the Property Law Act 1974 or in other States under equivalent legislation.

For more information on de facto relationships and your rights, click here. Or, give our experienced legal team a call today to get tailored legal advice.