Dispute Resolution

Family Dispute Resolution

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?

partial property distribution Brisbane divorce lawyers

Do I Have to go to Court for a Property Settlement?

Considering starting a property settlement? Wondering about the process? There can be lots of unanswered questions surrounding the situation and some may make you a little nervous such as: Will I have to go to court? Find out a bit more about the process of property settlement here from our highly experienced legal team. 

Property Settlement

Property Settlement

 

 

 

Will I have to go to Court?

Not usually. If you and your former partner agree how the property pool is to be divided, you can obtain Consent Orders confirming that agreement. This is done by completing an Application for Consent Orders which is signed by both you and your former partner and is filed in the Court together with the form of the Orders that you are requesting the Court to issue. If the Orders that you are requesting from the Court include a split of superannuation held by one of you, you will also need to ensure that you comply with requirements regarding the superannuation fund.

If the Court considers that the way in which you and your former partner propose to divide the property pool is just and equitable in your circumstances and your Application meets all the requirements, the Court will issue Orders as you have requested.

If you and your former partner cannot reach agreement, there are still processes that you can follow towards reaching an agreement. For example, you may negotiate an agreement through lawyers or go through a mediation. Even if a court action is started, the Court process encourages settlement. Most people involved in a court action will reach agreement during that process and obtain consent orders so very few cases go through to a final trial.

Want to learn more?

For more information on property settlements, visit our useful collection of blogs and articles here. Or, to speak to an experienced property settlement lawyer today, give us a call. We offer free 15 minute consultations over the phone, to help you on your journey forward.

Brisbane Family Lawyers

What is Property?

There are a number of terms thrown around in family law, that can often leave you feeling puzzled. Even words commonly used in everyday language like “property”, take on a very specific meaning when being referred to in a legal matter. As part of our unique services as Brisbane Family Lawyers, we ensure that our clients are fully-informed from the start. Any questions or matters that impact them will be made transparent, so that you, as the client, can make comprehensive choices about your family law matter and how it is dealt with.

A common term that comes up in family law is, “property”. As property settlements often form part of a family law matter, it’s good to be aware of what the term entails.

Brisbane Family Lawyers

Brisbane Family Lawyers

 

What is ‘property’?

The property that is taken into account in a property settlement is basically all of the assets which either or both of you and your former partner own or control.
This will include real property (including the matrimonial home which you and/or your former partner own or control); interests in companies and businesses and their assets;share and investment portfolios; superannuation; bank account balances; time shares; vehicles; bikes; boats and furniture and chattels such as fine art; jewellery and antiques. The property pool may also include any interest or entitlement that you or your former partner may have in any trust.

If you’re interested to learn more about property settlement, read more here.

Our Brisbane Family Lawyers specialise in a number of areas. From divorce, to child custody, to de facto relationships. No matter your question or situation in family law, we can help. Give our Brisbane Family Lawyers a call today on (07) 3506 3651 and receive a free 15 minute consultation to start your journey forward.

Brisbane Family Law

Are You in a De Facto Relationship?

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

Child Custody

Child Custody | A child’s view and how the court knows that view

Involved in a child custody matter or considering starting an application? You may be wondering what a court will take into consideration when deciding who the child will live with.

The primary concern of the court, is the well-being of the child. The court looks to maintain the child’s relationship with both parents where possible, but it’s main focus is on the safety of the child physically and mentally. In determining this in a child custody matter, the court will look to assess and consider, what the child’s view is. How does the court know what a child’s view is in a child custody or parenting matter? Read on to find out.

Child Custody

Child Custody matters

The Court may inform itself of views expressed by a child by:

  1. considering the contents of a report by a family consultant. A family consultant who is directed to give the Court a report on a matter relevant to proceedings is required to ascertain the views of the child regarding that matter  and include the views of the child on that matter in the family report (unless this would be inappropriate because of the child’s age or maturity or some other special circumstance);
  2. making an order for an independent children’s lawyer (ICL) to be appointed for a child. One of the duties of an independent children’s lawyer is to ensure that any views expressed by the child in relation to matters before the Court, such as arrangements for where the child lives, are fully put before the Court; or
  3. by such other means as the Court considers appropriate.  This may include consideration by the Court of  a family report obtained upon the joint instructions of both parties to the Court action.

However, neither the Court nor any other person (whether a family consultant, ICL or otherwise) may require a child to express his or her view regards where he or she wishes to live or regards any other matter.  It may be important for a child to understand this, particularly if the child is feeling very conflicted at the prospect of expressing an opinion favouring any parent.

 If you would like to learn more about child custody, click here. Or, to get tailored legal advice, call our experienced team of family lawyers today.
subpoena family 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. Consider obtaining 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.
  15. Consider obtaining 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.
  16. If you have children, contact the Department of Human Services Child Support to find out if you or your former partner are eligible to receive child support. This should be done as soon as possible as any assessment that is made will only apply from the date of an application for child support.
For more tips and advice regarding separation, click here  or contact our experienced divorce lawyers Brisbane team today for legal advice tailored to your particular circumstances.
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.