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Divorce Lawyer Explains Foreign Divorces

Do foreign divorces amount to divorces orders under Australian law? A divorce lawyer examines the leading case on this issue: Anderson v McIntosh [2013] FamCAFC 200.

Section 44(3) of the Family Law Act provides that leave from the court is required to institute property proceedings if the proceedings are brought 12 months after a divorce order comes into effect.

However, in Anderson v McIntosh Murphy J made an order to the effect that a divorce lawyer does not require leave under s 44(3)  to commence property proceedings where that divorce was granted overseas.

Facts

The parties divorced in a foreign country in 2010 and reached a property agreement in that country for the property in that country. No orders were made in relation to property held in Australia. In 2012, the wife filed an application pursuant to s 79 of the Act seeking an equal division of the assets of the parties.

Trial Decision

Murphy J considered whether s 44(3) applies to applications for property settlement in cases where the parties are divorced overseas. If so, the wife’s application is out of time and leave would be required to continue the proceedings.
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Property Settlement Agreement – A Four Step Process

A property settlement is a process which involves the division of assets between parties.

If you have separated with your partner you may be left wondering what your rights to the assets might be. You might be questioning what is involved and how our lawyers can assist you to reach a property settlement agreement.

Here at Matthews Folbigg Lawyers, the usual process to get your Property Settlement started is to meet with one of our lawyers who will work through 4 important steps with you.

Step 1: Work out the “Net Assets”

Working out the “net assets” involves listing the parties’ assets, liabilities, superannuation and financial resources to reach a net equity which we call “the asset pool”.

Step 2: Consider the “Contributions of each party

This step considers the “contributions” of each party. It includes financial contributions towards the acquisition of assets including the purchase of a home and mortgage repayments as well as non-financial contributions such as being the parent and homemaker.
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How has Covid-19 affected Family Law Mediation?

Family Law Mediation is used by parties as a way of trying to resolve or reduce the number of issues in a family law dispute with the assistance of a mediator. The benefits of family law mediation are far reaching particularly when parties are able to avoid the considerable costs, time and stress associated with Court proceedings.

The onset of the pandemic saw parties, legal practitioners and even the Court having to quickly adapt to online and electronic means in addressing disputes. Family law mediations have been no different and in fact have proven to be a useful pathway to resolving matters over the online platform.

It is now not uncommon for family law mediations to take place through applications like Zoom or Microsoft Teams or even electronically over the phone. These avenues still enable the parties to have their confidential discussions with their solicitor and/or with the mediator while also being able to have a joint session with the other party.
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Family Inheritance: Can your Separation Lawyer Help?

A common question asked of a separation lawyer is whether inheritance is included in a family property settlement. The Full Court of the Family Court in Bonnici & Bonnici held that property does not fall into a “protected category” merely because it is an inheritance.

How the Court determines whether an inheritance can form part of a family property settlement depends on when the assets were inherited and the impact of the inheritance on the available property pool.

Impact on Asset Pool

In the case of Bonnici & Bonnici, the Full Court of the Family Court held that if there are ample funds already in the property pool for a settlement, the inheritance would normally be treated as the entitlement of the receiving party. However, if the inheritance is the only asset of the relationship and one party performs a more substantial homemaker role to their financial detriment, it is open to the court to include inheritance in the property settlement.
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What Happens if I Breach My Parenting Orders?

Once the Family Court has made parenting Orders either at hearing or by consent, each party must comply with those orders. If one party has departed from those Orders there may be serious consequences for such breach. You should seek legal advice from a divorce lawyer if you or your ex-partner believe there has been a breach of the orders.

If you are unable to resolve the breach, one option forward is a Contravention Application. Your divorce lawyer may file a contravention application in the Family or Federal Circuit Court when one party alleges the other has breached their parenting orders. Contravention proceedings are generally confined to very clear cases. Your divorce lawyer will need to set out that the other party:

  1. Intentionally failed to comply with the order, or
  2. Made no reasonable attempt to comply with the order, and
  3. Had no “reasonable excuse for contravening” the order.

The primary purpose of these proceedings is to ensure compliance with the orders. However, there are some circumstances where the Court may use the proceedings to penalise a party to deter them from further breach.
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What is the Role of the Mediator in Family Law Mediation?

Parties often attend family law mediation as an opportunity to try and resolve their family law dispute whether it be custody matters, property distribution or child support matters. However often parties can be confused as to the role of the Mediator in family law mediation and their part in assisting the parties in reaching a resolution.

The greatest misconception by parties is that the Mediator will provide the parties with legal advice. They will not. The Mediator must remain neutral and therefore will not advise either party as to the legal merits of their case. The Mediator’s prime role is to facilitate the family law mediation process in a way that enables both parties to effectively identify the issues in dispute and assist with generating options that might resolve these issues.

It can be hard for parties to talk to each other about things that concern them even when lawyers are involved. Family Law Mediation is designed to be a safe space where each party has an opportunity to raise things they may not have been able to before. In the process of finding common ground that may not be apparent from the outset, the Mediator assists the parties in crafting a unique solution that is best for the family’s circumstances.
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Interim Hearings – What are They and Will I Need a Family Law Lawyers Assistance?

An interim hearing can be described as Court event that gives the parties a temporary or short-term outcome until all the evidence can be considered, tested and evaluated at final hearing with the help of your family law lawyers. The Court typically takes a conservative approach at the interim hearing, generally taking a path that is least likely to cause harm to the child. Any order made on an interim basis with the assistance of your family law lawyers may be changed once the matter has been heard on a final basis.

The decision of Saif & Saif highlights the interplay between the considerations in interim hearing, including:

  1. The best interests of the child;
  2. Issues of risk;
  3. Importance of continuing a child’s relationship with each parent.

The question before the Court was whether the mother could relocate with the children from Sydney, where the father resided, to Melbourne. The Court highlighted the inherent tension between enabling parent’s freedom of movement after separation and on the other hand, to avoid obstructing a child’s relationship with the other parent.
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DISPUTE RESOLUTION – Our Family Law Lawyer looks at the new digital service “amica”

Dispute resolution is often used by couples who are separating or divorcing.  A benefit of dispute resolution is that an agreement can be reached, without the added cost and complexity of litigation or other formal legal processes.  Dispute resolution processes also allow the parties to have greater control and management of the process and outcome.

A family law lawyer can provide advice in relation to the best resolution option for a dispute.  A family law lawyer can help to understand a person’s rights and responsibilities and the law that may apply to that case.  This includes helping a couple going through separation to reach an agreement without the need to go to Court.

One of the dispute resolution options that is available to the parties is online dispute resolution (ODR).  ODR utilises technology to assist with the resolution of disputes.

On Tuesday 30 June 2020, the Honourable Christian Porter MP, Attorney General of Australia, announced a new digital service “amica” that is designed to assist separating couples to resolve their family law disputes online.  The media release notes “amica uses artificial intelligence (AI) technology to suggest the split of assets, taking into account:  the couple’s particular circumstances; the kinds of agreements reached by couples in similar situations; and how Courts generally handle disputes of the same nature.”
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