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Divorce lawyer advice after separation and the operation of the ‘clean break’ Principle

Engaging a divorce lawyer when separating from your partner can be daunting. It is important that you understand your legal rights relating to your financial position both in your relationship and moving forward.

The Principle

It is in the Court’s view that it should seek “as far as practicable (to) make such orders as will finally determine the financial relationships between the parties…and to avoid further proceedings between them.” This is referred to as the ‘clean break’ principle under s 81 of the Family Law Act or s 90ST for de facto parties. Specifically, a divorce lawyer will tell you that the general approach of the Court is to avoid issuing long term spousal maintenance orders. In other words, spousal maintenance is not and should not be ordered with the intent that it be payable for life. Instead, it is designed as a temporary order to allow parties to restructure their finances and or living expenses. For example, a spousal maintenance order can be made to cover a period where the party is completing coursework or training which enables him or her to re-enter the workforce.
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A prenuptial agreement lawyer explains how to change a binding financial agreement

It is best to seek out a prenuptial agreement lawyer if you want to dispute a binding financial agreement (‘BFA’). This type of agreement, like any other contract in law is subject to strict rules. However, s 90K (1) of the Family Law Act 1975 allows a court to set aside a binding financial agreement. There is a list of reasons outlined in this section including:

  • The agreement is obtained by fraud
  • The agreement is void, voidable or unenforceable
  • Arising circumstances make it impracticable for part of or the entire agreement to be carried out

A prenuptial agreement lawyer can advise you on what makes an act of “fraud”. Ordinarily it is involves using false representations to obtain an unjust advantage. However, to prove fraud, it must be shown that the false representation was made knowingly. This can be either without belief in its truth or in a reckless manner.

The terms void, voidable or uncertain will not be unfamiliar to your prenuptial agreement lawyer. Both in common law and equity, a court can deem a BFA invalid if there is duress undue influence, unjust enrichment or unconscionability. In Teves & Campomayor duress meant ‘sufficient oppression…to vitiate the reality of…consent.’ The presence of unconscionable behavior reflects conduct by one party attempting benefit from a person with a disability. If the conduct of the stronger party is not consistent with good conscience, then the court of equity can intervene.
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Seeking a child custody lawyer to recover your child

There are varying scenarios where a threat, removal or disappearance of a child can take place. A child custody lawyer will be able to advise you on the different responses required depending on the nature of relocation; whether it is international, interstate or within a state. Commonly, the scenarios listed can arise:

  • Flight risk within Australia
  • Unilateral relocation within Australia
  • Disappearance by other party with child
  • Overseas flight risk
  • Child passport alert
  • Overseas child abduction

If the respondent’s whereabouts are unknown and every effort has been made to locate them then a child custody lawyer may advise the option of applying for a location order. This falls under s 67K of the Family Law Act 1975. This order will require an individual (e.g. family or friend) or a Commonwealth department (e.g. Centrelink or ATO) to provide the Court with any information they have or which they will have that may assist in locating the child. If there are no prior parenting orders in place or a party has commenced proceedings asking the Court to make parenting orders the requirements are as follows:
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Asking a divorce lawyer about property settlement

The breakdown of a relationship can be emotionally exhausting. Especially during the dissolution of a marriage, divorce proceedings and the distribution of assets is necessary. However, it can be tiresome when both parties are emotionally charged. Seeking advice from a divorce lawyer can help lessen the burden that falls on parties. This is considering that they are yet to seek out where and how their property is to be distributed. A big part of understanding how property is to be handled is the fundamental question of what is considered to be property. From the involvement of divorce lawyers and cases that have been heard before the court, it has been determined that the term “property” includes:

  • All real and personal property
  • Pre-marital property
  • Post-separation lottery win
  • Partnership in a law firm
  • A lottery win from a ticket bought during the marriage
  • An award for damages from a personal injury claim
  • A redundancy payment
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Advice from a separation lawyer in a child custody dispute

Seeking advice from a separation lawyer during a divorce can be necessary especially if there are children from the marriage who are under 18 years old. Generally, a parenting order allows for a child’s parents to have equal shared parental responsibility. Once this order has been made (and the presumption not rebutted) then the court must consider if the child spending time (equal, substantial or significant) with each of the parents is reasonably practicable.

In the recent decision of Miley [2021] FedCFamC1A 62, the Court heard a mother’s appeal against a decision which ordered the return of a child from Victoria to Western Australia. With assistance from a separation lawyer, the parents of the child separated in 2017. Prior to then, the parents were all residing in Western Australia.

The evidence before the court confirmed that the father spent limited time with the child. On the 7th of January 2021, the mother relocated to Victoria, taking the child with her but did not give notice to the father. After seeking advice from a separation lawyer, the father filed an application in the Family Court of Western Australia to seek the child’s return. It was successful.
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Getting a Divorce – the application, the hearing and when you need a divorce lawyer

The Divorce Application

There are a number of requirements to be met in order to obtain a divorce Order. The Court must be satisfied that as at the time of filing of the application for divorce:

  1. At least one of the parties to the marriage is an Australian citizen or domiciled or has been ordinarily resident in Australia for the preceding year.
  2. That the parties have been separated for a period of no less than 12 months and that the marriage has broken down irretrievably.
  3. The Court must be satisfied that where there are children under the age of 18 years of age, proper arrangements for their car, welfare and development have been made.

The requirements for divorce in addition to compliance with service requirements will be reviewed at the Divorce Hearing and if satisfied a Divorce Order will be granted.

The Divorce Hearing

Upon filing your Application for Divorce, your divorce lawyer will be advised of the date and time allocated for your divorce hearing.
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How a child support lawyer can navigate through a child vaccination dispute

Seeking advice from a child support lawyer in the midst of a global pandemic can add another layer of complexity to your legal proceedings. Medical developments remain ongoing as awareness of health advice heightens. As a result, it is difficult to navigate what actions are mandatory or optional. A particular area of uncertainty surrounds the vaccination status of children between the ages of five to eleven.

A recent decision passed in the Federal Circuit and Family Court of Australia explores this issue. As well as the relationship between law-making and law-enforcing authorities. A child support lawyer can inform you of Australia’s powers and their separation into three arms. More importantly each is a distinct authority tasked with specific roles; therefore they cannot influence one another. For example, parliament has the power to make and change laws. Whereas, the judiciary (the courts) is responsible for passing judgments on the law.

In Dacombe & Padison [2021], an interesting argument was put forward by the father. The case involved a child support lawyer and an appeal against an order allowing the mother to vaccinate their child against COVID-19. The father claimed that under s 51(xxiiiA) of the Australian Constitution, parliament makes laws about the provision of medical services but does not authorise civil conscription. The term ‘civil conscription’ means making the performance of particular medical services compulsory. In the context of COVID-19, the question of if this applies to vaccinations was raised. However, the Court found that the concept was not relevant to the legislative power to make such orders.
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Asking a family law lawyer about parentage testing

A family law lawyer can explain parentage testing as a form of genetic testing used to confirm the paternity of a child. A family law lawyer can advise you of the presumption of paternity that operates in the Family Law Act. In various sections of the Act, parentage will arise from circumstances such as:

  • Marriage (s 69P)
  • Cohabitation (s 69Q)
  • Registration of birth (s 69R)
  • A court finding (s 69S)
  • A signed acknowledgement of paternity (s 69T); or
  • Artificial conception (s 60H)

However, if the paternity of a child is in doubt then only when it presents as an issue to the Court will a parentage testing procedure be required. For example if there is rebuttable proof on the balance of probabilities then, as occurred in G v H, a father who refused to undergo a parentage test was subsequently issued with an order. Due to the personalised and invasive nature of a claim as such, a family law lawyer can advise that generally an order should not be made so that an alleged parent can satisfy personal doubts as to a child’s paternity.
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