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Divorce Lawyer Explains Resumption of Cohabitation

Once a divorce lawyer has proved that you and your former partner have separated, your divorce lawyer must then prove to the court that there is no likelihood that your cohabitation will resume. Resumption of cohabitation involves the re-establishment of the relationship to the point that it reverses the separation.

What happens to the 12 months separation if you and your ex-partner try to make things work again?

The Family Law Act promotes reconciliation where possible. For this reason, Section 50 of the Family Law Act permit couples to resume cohabitation during their 12 months separation however it must only be for one intervening period of less than 3 months for it not to “re-start” the 12 month separation period.

For example, a couple who  have been separated for 2 months, then attempt to reconcile for a period of less than 3 months. After the 2 months of reconciliation, one or both of the spouses decides that the marriage is still not working out. In this case, the original date of separation will stand and the parties will be able to continue the remaining months left to satisfy the required 12 month separation with it only being extended by the attempted reconciliation period of 2 months.

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Reaching a Property Settlement Agreement through Family Law Arbitration

There are numerous methods aside from traditional Court determinations which parties can utilise when seeking to reach a property settlement agreement. Section 10L of the Family Law Act 1975 defines arbitration as “a process (other than the judicial process) in which parties to a dispute present arguments and evidence to an arbitrator, who makes a determination to resolve the dispute.”

How do Arbitrations operate?

Arbitrations are available for property and financial matters and are voluntary. A matter may also be referred by a court order. They can take place before, during or after proceedings have commenced.

Arbitrations may either determine entire financial or property disputes, or alternatively they can focus on specific aspects of the dispute.

The parties have flexibility in preparing a written arbitration agreement before the arbitration commences to determine the constraints and process of the arbitration.

Are Arbitral determinations final?

Once arbitration has finalised, the arbitrator will make an arbitral award. An arbitral award is final and upon registration, it has the same impact and enforceability as an order of the Court.

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Collectables and your property settlement agreement

Whether you collect postage stamps, designer handbags, books, art or cars, don’t underestimate the value of your little hobby when it comes to a property settlement agreement.

In the recent case of Isaacson [2019], Judge Wilson considered a property settlement agreement dispute between a former husband and wife, as to the value of the husband’s book collection. The husband alleged the book collection to be worth $183,905.00 and the Wife believed it to be worth $384,421.00.

Both parties sought to rely on their own “expert” evidence as to the apparent value of the book collection.  This is where the case highlighted the importance of seeking legal advice when intending to use expert evidence to ascertain the value of collectables in a property settlement agreement.

The Husband’s “expert” provided the Court with a 97 page affidavit pertaining to his opinion as to the value of the book collection. The affidavit of the Husbands “expert” failed to address the elements of his training, study or experience which are required to be satisfied in order to deem a witness to be qualified as an expert. The Court consequently found the Husbands alleged expert evidence to be deemed inadmissible.

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Mediation and Your Family Law Dispute

Mediation and Your Family Law Dispute – Agreements that Suit Your Needs

WHAT IS MEDIATION?

Mediation is an alternative way to determine a family law dispute outside of the courts. The Mediator Standards Board defines mediation as: “a process in which the participants, with the support of the mediator, identify issues, develop options, consider alternatives and make decisions about future actions and outcomes.”

It is a process of problem-solving that is guided by an impartial third party called a mediator.

WHAT DOES A MEDIATOR DO?

In family law, the role of the mediator is to facilitate the process of dispute and conflict resolution while the content of the discussions rests with the parties. The mediator can assist the parties to clarify the most pertinent issues and consider ways to resolve these issues. A mediator will not, and cannot, give advice about your dispute or determine the dispute for you.

HOW IS MEDIATION DIFFERENT FROM COUNSELLING, CONCILIATION OR ARBITRATION

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Judicial Mediation: A New Option To Resolve Your Dispute

As of 1 January 2019, parties to a family law dispute and their marriage lawyer, in appropriate cases, may now have the option of Judicial Mediation in the Federal Circuit Court of Australia. Judicial Mediation is not intended to replace or substitute private mediation. Rather, the court expects that parties to a family law dispute exhaust all mediation alternatives, such as private mediation with a private mediator, prior to Judicial Mediation.

The Judicial Mediator

The Judicial Mediator may not be the Judge that would ordinarily determine the family law dispute. This Judge is referred to as the Docket Judge. Where both Judges consent, the Docket Judge may refer the proceeding for Judicial Mediation to another Judge.

How to Initiate Judicial Mediation

Judicial Mediation can be initiated in two ways. Firstly, you or your marriage lawyer can make an oral application in court. Alternatively, you or your marriage lawyer may apply for judicial mediation in writing to the Docket Judge. The written application must include a brief summary in bullet point format addressing why the matter is suitable for Judicial Mediation.

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Domestic Violence and Family Law

Domestic Violence can affect people of all ages, socioeconomic and demographic groups and unfortunately can often go unreported particularly when it occurs during a relationship with a spouse or partner. However it is not uncommon for historical and current domestic violence to come to light particularly in circumstances of a family law separation. In June 2012, the definition of family violence was amended to include other behaviours that constitute family violence.

The Family Law Act defines Family Violence as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful”. The legislation includes behaviours such as stalking, repeated derogatory taunts, intentionally damaging property, causing death or injury to an animal and unreasonably denying a family member of their financial autonomy. With respect to children, the legislation also states that “a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence”.

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Who Can Access My Family Court Records?

Like other family law lawyers, I am often asked whether non-parties (persons that are not directly involved in the family law litigation) are able to access the Court records relating to the case.

Documents filed in a family law case (and other documents relating to the case) are held in a Family Court case file.  This information is protected under the Family Law Act 1975 and the Family Law Rules 2004.  For example:

  • Rule 24.13 of the Family Law Rules 2004 limits those who are allowed to access the Court’s records in family law cases;
  • Section 121 of the Family Law Act 1975 limits the publication of reports of family law proceedings and of lists of cases. There are exceptions to this;
  • Family Law Judgments are reported by the Court in a de-identified form (for example, with pseudonyms replacing the parties’ real names).

There are also exceptions to the restrictions to a Court file, including research (Regulation 24.13(1)(d) Family Law Rules 2004) or by the Australian Taxation Office (Commissioner of Taxation & Darling (2014) FLC 93-583).

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How the Court deals with a significant financial contribution where the property value soared after rezoning

With the fluctuating property market and endless residential rezoning, how the Family Court deals with property introduced by one party to the relationship that has dramatically increased is sure to be a recurrent theme for separating couples.

Background Facts

In one recent case of Jabour, where the parties had been married for a long period and had raised three adult children this circumstance arose.

When the parties first got together the husband owned a 50% share in three blocks of land which he had purchased from his father in 1975 for $26,000.

11 years into the marriage the husband sold his share in two of the blocks to purchase the other 50% share in the third larger block.

The property acquired by the husband was later re-zoned for residential use causing the property value to increase significantly. The property subsequently sold in October 2017 for $10,350,000.

When the case went to Court to be heard by the Judge, the Husband proposed that the proceeds of sale from the property, after costs and expenses be distributed 70% to him and 30% to the Wife. The Wife sought a 50/50 split.
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