Expecting mother? Wanting financial contributions from the father? If you’re about to be a single mum, it’s important to know what rights you and your unborn child have in accessing financial contributions. Read on to find out how. After the recent swearing in of Donald Trump to office, the anti-abortion/pro-life argument has again become […]
Easter is an exciting time of year, particularly for the children. It’s a time for laughter, family and hopefully a visit from the Easter Bunny! As a parent, it’s natural to want to spend as much of this holiday season with your children. However, where you are separated from your former partner, getting to spend the entire holiday period with your children may not be an option. It’s important for your children that they can spend time with each of you.
You will want to plan ahead how the children will spend their time over this period. Try to come to an arrangement that will involve the least disruption for your children as possible.
There are two common arrangements that you may like to consider. These are: a time-sharing arrangement or; an alternate year arrangement.
A time-sharing arrangement can come in a number of forms, depending on what suits both parties. One option might be for the children to spend from 9:00am on the Thursday until 9:00am on Easter Saturday with one parent and from 9:00am on Easter Saturday until Easter Monday 5:00pm with another. These times can then be reversed for each parent on alternate years.
This would involve the Easter period being spent with one parent one year and alternating to the other parent the following year. One parent may choose to take all years ending in an odd number, whilst the other parent agrees to take years ending in even numbers.
It is wonderful if you can make arrangements directly with your former partner in an amicable way. If that is difficult in your situation however, we are able to help you with negotiating an agreement with your former partner.
For more ideas on parenting arrangements, see our related post. Or, if you need further advice or are struggling to reach an agreement with your former partner, contact our friendly team today.
Let’s talk child safety.
Every child deserves to feel safe and protected at all times. Unfortunately, not every child has that security. If you have been witness to child harm or have reason to suspect that a child is being subjected to harm, it is important to know what you can do to help ensure that child’s safety. Whether you’re a concerned family member, teacher, doctor or friend, your voice is an important one in preventing harm to a child.
Helping to ensure child safety
What is harm?
The Child Protection Act 1999 provides authority for the Department of Communities, Child Safety and Disability Services to intervene where a child has been or is at risk of being harmed. Harm is considered as any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing. Harm can be caused by physical, psychological or emotional abuse or neglect or through sexual abuse or exploitation.
Is the child in need of protection?
A child may have already suffered significant harm, be currently suffering significant harm, or be at an unacceptable risk of suffering significant harm. In any of these situations, where the child does not have a parent able and willing to protect the child from harm, under the Child Protection Act 1999, that child is considered to be in need of protection.
So, what do you need to do next?
If you reasonably believe that a child may be in need of protection, you may contact the Department of Communities, Child Safety and Disability Services. There are also certain people who are mandated to notify the Department, such as doctors, teachers and registered nurses, where during the course of their engagement they form a reasonable suspicion concerning significant harm having been suffered or being suffered, by a child or there being an unacceptable risk of the child suffering significant harm, caused by physical or sexual abuse and that the child may not have a parent able and willing to protect the child from the harm.
When informing the Department of an alleged child abuse issue, it is important to provide a detailed, clear, and comprehensive report. The Department will use that information to determine whether or not to investigate allegations of harm and to carry out an assessment to determine if a child is in need of protection.
Providing this information in a timely manner to the Department, can seriously improve the child’s chances of being protected against any further harm. For more information on child safety, visit the government website, or contact the LGM Family Law team today.
Can future tax liabilities be taken in account when reaching a property settlement with your former partner?
What place can future tax hold in determining property assets?
Can future tax liabilities be considered in Family Law proceedings?
One of the first steps to be taken following a separation is to determine the assets and liabilities of the relationship – known as the “property pool”. Before the property pool can be distributed between the parties, the items which make up the pool must be established and valued. Attributing a value and determining the associated liability of an item is important as it allows us to work out the overall percentage of the property pool the parties will receive. This task has to be done fairly, first and foremost, so that the court can be satisfied that the division is just and equitable, but also so that each party can feel satisfied with the result and be able to move on to the next chapter in their life.
So, what about future tax liabilities?
In the matter of Rogers,1 a husband argued that the possible future tax liability of the family business (being transferred from the parties jointly, into the sole name of the husband) should be paid from the matrimonial property pool. If he were successful in his argument, the value of the property pool would be reduced by some $517,000. It is important to note that at the time of the trial, the tax liability had not issued and was anticipated only – no one could be sure what the liability would amount to if it became payable.
The Court held that liabilities that were vague or uncertain (such as future tax liabilities), could not be deducted from the property pool. In this case, as the tax liability was uncertain and could change in the future, the court found that it was not just and equitable to reduce the property pool on account of the future anticipated liability.
As seen from Rogers, we now know that future tax liabilities and other uncertain future anticipated liabilities, generally won’t be considered in a matrimonial property pool.
Sources:
1 Rodgers [2016] FamCAFC 68
2 Glade-Wright, Robert (2016). “Future tax debts remain out of pool” in Proctor, Queensland Law Society, September 2016 – Vol.36 No.8.
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 Chrimstas 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.
Both have their pros and cons. You need to work out what works best for you and for your children.
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.
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 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.
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.
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.
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.
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.
Christmas is a time for celebration, so make sure your separation doesn’t affect your Christmas cheer this year.
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!
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!
How to avoid whittling away your pool of assets on legal bills
One way to avoid whittling away your valued assets pool? Settle! However, that may be easier to say than it is to action, dependent upon the issues involved and the personality profile of your former partner.
In fact, the vast majority of people will settle their family law matters. The amount that you and your former partner will spend in legal fees will be influenced by a number of factors. However, it is generally true that the longer your matters remains unresolved, the more it is likely to cost each of you and your former partner in legal fees.
Settling sooner rather then later then may well result in considerable savings to you.
It may be more difficult to settle where the issues involve your children and their living arrangements but you should still consider the areas where you are willing to compromise with your former partner.
If you having to make a property settlement with your former partner, it is useful to bear in mind what are your likely costs if you are obliged to pursue your matter through to a court action. You should take those likely costs into account when considering what offer you may be willing to make to settle the matter with your former partner.
For more information about property settlement and maintaining your pool of assets, see here. Or, you can contact our experienced team of lawyers today for a free 15 minute consultation.
Former Partner wasted your assets? Can property settlements help?
Your former partner may have spent money during your relationship on a regular basis gambling or buying alcohol or making high risk investments that resulted in financial losses. Your former partner may have sold assets, particularly towards the end of your relationship and later failed to account for the proceeds from sale of those assets.
We are often asked in these situations what the other partner may claim in a property settlement to recognise any wastage of assets by the former partner or to compensate that other partner in relation to a disposal of assets by the former partner.
This is an area of law which has been the subject of scrutiny in more recent years. In some previous cases, the Family Courts had taken an approach of adding back into the asset pool in certain instances the value of assets which had been wasted or disposed of by the former partner and treating those notional assets as having been received by that former partner as part of his or her property settlement. This had the effect, in appropriate circumstances, of treating assets which no longer existed as part of the asset pool available for division between parties.
However, a relatively recent decision of the High Court of Australia has again emphasised that property orders may only be made in relation to property which actually exists at the time that the orders are made. Whilst wasted assets or assets which have been disposed of then may not be treated as part of the notional asset pool, the other party may claim an adjustment in his or her favour out of the existing asset pool on the ground that it is just and equitable in view of the conduct of the former partner.
It is not all losses flowing from investment decisions made by a party to a relationship that would justify an adjustment being made in favour of the other party. Losses as much as profits may arise from legitimate investment decisions made in the pursuit of matrimonial objectives. For the losses to be considered as justifying an adjustment in favour of the other party out of the asset pool, the former partner would need to have been acting in a particular manner, for example, acting recklessly or negligently or with wanton disregard in dealing with the assets.
If you want to learn more about property settlements, click here. Or, contact our friendly staff today today to set up a consultation.
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:
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.
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.
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.
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.
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.
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.
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.
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.
Can social media be used in a family law matter?
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).
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.
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.
…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.
What happens in Family Court?
A trial in the Family Courts occurs only after various steps in the Court process have been completed.
This article is a general guide concerning certain of the major steps in family law proceedings in the Federal Circuit Court of Australia. The process in the Family Court of Australia is somewhat different. What happens in any particular case will depend upon its particular circumstances.
Unless there are circumstances of urgency (including in a parenting matter, the risk of child abuse), we suggest that you should explore other avenues for resolving family law issues before resorting to court proceedings. For example, you may have negotiations with your former partner, directly or through your solicitors or go through a mediation or collaborative law process. Generally, we recommend that court proceedings, which can be lengthy and are expensive, should be approached only as a last resort.
If you find that it is necessary to initiate an action seeking parenting orders, before filing your application, unless certain exemptions apply, you must obtain a certificate from a family dispute resolution practitioner. That certificate in then included with your application. If you do not file a certificate or an affidavit which demonstrates that the requirements for an exemption apply, the Court cannot accept your application.
There are a number of steps involved before a matter will come to trial. You have the opportunity to reach agreement with your former partner and settle your matter throughout the court process. If you do this, the Court will then issue Consent Orders which confirm your agreement with the other party. Most parties engaged in a court action will settle their matter this way. In this situation, they will not then need to go through to trial but the court action concludes with the issue of the Consent Orders.
The documents to be initially prepared and filed with the Court in property and parenting matters include:
For the Applicant’s former partner (the Respondent)
When the documents are filed, the Court allocates the first Court date. The time and date for this hearing is included by the Registry on the first page of the Initiating Application.
The first court date will generally be about 6 weeks after filing, allowing time for the Initiating Application to be served and for the Respondent to prepare, file and serve the response documents. The first court date may be earlier for more urgent applications.
On the first Court date, the parties advise the Court about the issues. Generally, the Court will address the following areas:h
The next formal step after the first Court date in a property matter is generally the “Conciliation Conference”.
A Conciliation Conference provides the parties with a formal opportunity to negotiate and reach final agreement or to narrow the matters in issue. Even where parties cannot agree a full settlement of all matters, it may be possible to reach agreement on some issues and to clarify what issues remain in dispute.
If all issues are not settled so that the matter must proceed beyond the Conciliation Conference, further procedural directions will be made (such as dates by which certain steps in the proceedings are to be completed).
The final step in the proceeding is a trial which is held before the Judge. Each party gives their evidence and makes their submissions. The length of a trial varies dependent upon the complexity of the issues which remain in dispute at the time of trial. Unless the Judge otherwise approves, all evidence must be presented to the Court by way of affidavit.
At the final hearing, the Applicant (or his or her lawyer or Counsel) will outline the Applicant’s case and the Respondent may cross-examine the Applicant or his or her witnesses. The Applicant (or his or her lawyer or Counsel) may then re-examine those witnesses. In the same way, the Respondent (or his or her lawyer or Counsel) will outline the Respondent’s case and the Applicant (or his or her lawyer or Counsel) may cross-examine the Respondent or his or her witnesses. The Respondent (or his or her lawyer or Counsel) will have the opportunity to witnesses. You may then re-examine those witnesses.
Any independent children’s lawyer who may have been appointed may also present evidence to the Court and cross-examine witnesses. Any single experts who prepared a report may be cross-examined by the parties. For example, in a case where parenting orders are sought, parties may wish to cross-examine a family consultant may have prepared a report including certain recommendations for arrangements for children. In property proceedings, the parties may wish to cross-examine single experts who provided reports as to the value of certain assets.
Each party also has the opportunity to give a final address to the Court making final comments in support of his or her case.
The Judge will give a decision, including reasons for the decision, following the conclusion of the parties’ respective submissions. However, the decision is often “reserved” so that judgment is not given until a later date. This is usually within three months of conclusion of the trial or at a later date where the Court has a heavy workload. Parties will be informed of the date for delivery of the decision and are required to attend at Court on that date.
Preparing to go to the Family Court can be a stressful time, but one way to reduce that stress is to feel confident and prepared on what will happen during your Family Court matter. If you need advice or are considering taking a matter to the Family Court and want legal advice, contact us. We provide free 15 minute consultations over the phone, so get in touch today.
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.
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.
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.
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.
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.
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.
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.
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 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.
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.
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.
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.
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.
