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Family Law Lawyers Explain Equal Shared Parental Responsibility

If either you or your partner’s family law lawyers have made a parenting application to the Family Court, there is a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. That is, both parents should have a role in making long-term decisions about a child such as where they go to school, decisions about the child’s health, the child’s religious and cultural upbringing or changing the child’s name.

If you believe that equal shared parental responsibility is not in the best interests of your child, your family law lawyers may be able to challenge the presumption. Depending on your individual circumstances, the Court may consider whether sole parental responsibility should be granted. This would result in one parent alone having the authority to make long-term decisions about the child. Below are some of the factors that the Court may consider when determining parental responsibility. [...]  READ MORE →

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What are Consent Orders and How Can They Help My Family?

If you and your former partner have agreed on an approach to parenting and/or financial and property arrangements, you can formalise your agreement by entering into Consent Orders. Consent Orders can only be entered into when you and your former partner have reached an agreement, whether between yourselves, or with the assistance of your family law lawyers. Consent Orders are legally binding and enforceable by the Family Court. They can be used to vary or discharge existing family law Orders that may be outdated or impractical. Consent Orders are final and can be difficult to change without agreement. It is therefore imperative to seek legal advice from family law lawyers about your family law rights and entitlements. [...]  READ MORE →

Matthews Folbigg
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Family Dispute Resolution: How to Resolve Your Parenting Dispute Without Going to Court

In response to the growing risks of COVID-19, the family Courts have begun postponing court dates for non-urgent matters. Unfortunately, this means that it may be many months before your application for child custody is heard before a Judge. Parents should be encouraged to look for alternative ways to resolve their dispute such as through Family Dispute Resolution.

By law, parents are normally required to make a genuine effort to resolve parenting disputes before beginning Court proceedings. This can be achieved by attending Family Dispute Resolution also known as FDR for short, with a certified FDR practitioner. Your FDR practitioner can then issue you with a section 60I certificate which you will need to provide to your child custody lawyer to file with your Application. You will then have 12 months to commence proceedings with the Certificate otherwise you will need to obtain an updated certificate. [...]  READ MORE →

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My Ex Won’t Let Me Take My Kids Overseas

During child custody proceedings, parents cannot remove their children from Australia without either:

  1. The written consent of the other party, or
  2. A Court Order providing for overseas travel.

The most cost efficient way to take your children on an overseas trip is generally to negotiate with your former partner to obtain their consent and then put this into writing.

If you cannot come to an agreement, you may be able to make an application to the Family Court with the assistance of your child custody lawyers. Ultimately, the Court will make its child custody decisions in the best interests of the child. The Court may make an Order for the child not to travel overseas, or make an Order allowing the child to travel. In some circumstances the Court may make an Order for you or your former partner to pay a security if the child is allowed to travel to better ensure the child’s return. [...]  READ MORE →

Matthews Folbigg
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Keeping Families Safe: How the Family Courts are Responding to Covid19

On 19 March 2020, the Honourable Justice William Alstergren published new practice directions for the Family and Federal Circuit Courts to respond to the growing concerns of Covid19, also known as the Coronavirus. Overall, there has been a move to minimise the attendance of your divorce lawyer and their clients at registries to uphold the health and safety of all involved.

Key changes for your Divorce Lawyer

  • All documents must be filed electronically;
  • If documents cannot be uploaded to the portal, for example if the document is too large to upload, the documents should be emailed to the relevant registry for filing;
  • Hard copies of documents will only be accepted in limited circumstances;
  • Subpoena viewing is by appointment only in all Registries;
  • Appointments to view subpoena material should only be made if the matter is scheduled for hearing within 4 weeks or if the matter is urgent;
  • Exhibits to affidavits filed in the Family Court of Australia should now be annexed/attached to the affidavit if the exhibits are less than 2cm width and will be filed electronically;
  • Where the exhibits to a Family Court affidavit are more than 2cm in width, an application will need to be made to the registry case co-ordinator.

An “Update to Profession” has also been issued amending procedures in both Courts to minimise the spread of Coronavirus. Duty lists, mentions, directions and interim hearings will generally be conducted by telephone. Exceptions may be made if telephone hearings are impracticable or the matter is urgent and requires a face-to-face hearing. [...]  READ MORE →

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How Interim Child Custody Proceedings Can Help You

Interim proceedings allow the Court to make temporary child custody Orders that are effective until the matter can finally be determined. An application for interim Orders cannot be filed without an Application for final Orders. At the interim hearing, some of the issues the Court may consider include who the child should live with until the final hearing, whether the child can travel overseas and whether the child can relocate to another city.

The mere fact that the children are currently in a well settled environment does not prevent the Court from making a child custody Order for parents to spend time with the children. Rather than preserving the status quo, at an interim parenting hearing, the main objective of is for both parents to have meaningful involvement in their children’s’ lives. Child custody law is in favour of substantial involvement of both parents in their children’s lives including both parental responsibility and time spent with the children. This rule is subject to the need to protect the children and provided that it is in the best interests of each child. The Court will consider whether equal time or significant involvement by both parents in the children’s lives is appropriate and practical. [...]  READ MORE →

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Separation Lawyer Advice – Can your ex take your super?

By Andrew Banna, a Principal of Matthews Folbigg, in our Family Law Group.

Superannuation falls within the scope of property under the Family Law Act. Upon the breakdown of a relationship, the superannuation splitting laws provide for the possibility for your superannuation to be divided between you and your ex partner as part of your property settlement with a separation lawyer. However, as superannuation is held on trust, different rules apply to how this type of property can be divided. Dividing your superannuation will not automatically turn the interest into cash that you can take home with you, rather, the interest will remain subject to the laws of superannuation. The options available to the non-member spouse that is receiving the split include: [...]  READ MORE →

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Divorce Lawyer Advice – I Want a Divorce – Married Less than Two Years

By Andrew Banna, a Principal of Matthews Folbigg, in our Family Law Group.

If you have been married for less than two years and you decide to divorce, there are a few things for you to consider with a divorce lawyer. A divorce application is not to be filed within two years after the date of marriage without the leave of the Court. When establishing how the two years is calculated, it is determined from the date of the marriage to the date of applying to the Court for a divorce. You and your spouse must also have been separated for at least 12 months before applying for a divorce. [...]  READ MORE →

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‘I Want a Divorce’ – Divorce Lawyer Advice

By Andrew Banna, a Principal of Matthews Folbigg, in our Family Law Group.

Divorce Lawyer advice; Can I apply for a divorce?

In Australia you can apply for a divorce with a divorce lawyer if either you or your spouse:

  • Regard Australia as your home and intend to live in Australia indefinitely, or
  • Are an Australian citizen by birth, descent or by grant of Australian citizenship, or
  • Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

Additionally, you must be able to prove to the Court that you and your spouse have lived separately and apart (it is possible to live in the same home and still be separated) for a minimum of 12 months and that there is no existent likelihood of resuming married life.

Divorce Applications [...]  READ MORE →

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Divorce Lawyer advice on dealing with different contributions in a property settlement agreement

By Andrew Banna, a Principal of Matthews Folbigg, in our Family Law Group In discussions around a property settlement agreement with a divorce lawyer, it is often thought that the focus is only on the financial contributions.

In 1995 Justice Fogarty of the Family Court addressed the issue of contributions in divorce settlements by divorce lawyer in the case of Waters v Jurek;

“In most marriages there is a division of roles, duties and responsibilities between the parties… On separation, the partnership and the division of roles and responsibilities which it produced come to an end, and individually the parties are left largely in the personal situation that the marriage had assigned to them. However, the world outside the marriage does not recognise some of the activities that within the marriage used to be regarded as valuable contributions…. Post separation the party who had assumed the less financially rewarded responsibility of the marriage is at an immediate disadvantage. Yet that party often cannot simply turn to more financially rewarding activities.  Often, opportunities to do so are no longer open, or, if they are, time is required before they can be assessed and acted upon”. [...]  READ MORE →

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Divorce lawyer advice about property settlements

By Andrew Banna, a Principal of Matthews Folbigg, in our Family Law Group. In the event of a divorce or separation, parties will need to arrange the division of assets and debts. There are a few different avenues that could be taken with a divorce lawyer to do this depending upon your unique situation. Such avenues may include:

  1. An agreement being reached between you and your former partner on the division of property without Court interference ; or
  2. An agreement by applying to the Family Court for consent orders; or
  3. The matter proceeds to Court and a Judge could ultimately determine the outcome of your case.

With guidance of a divorce lawyer you will be able to have a clearer understanding of the general principles under the Family Law Act that are deliberated in property settlement orders; thus enhancing your chance of receiving a positive outcome. [...]  READ MORE →

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Divorce Advice when Children are Involved

By Andrew Banna, a Principal of Matthews Folbigg, in our Family Law Group.

It is important to recognise that divorce and parenting arrangements are two separate matters. There is a requirement that individuals wait a year in order to divorce however this time restriction is not in place in relation to making parenting arrangements. Couples can be separated and never divorce, however they are permitted to engage in parenting proceedings with a divorce lawyer immediately after separation.

In the event of a divorce or relationship breakdown it is highly recommended that individuals seek advice, particularly when children are involved. Legal advice from a divorce lawyer can assist you and your partner in negotiating and reaching short-term arrangements prior to implementing formal Court orders that may become necessary if an agreement cannot be reached. [...]  READ MORE →