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Separation Lawyer and Property Orders

Clients often ask their separation lawyer, “What kind of property Orders will the Court make?”

In the 2012 case of Stanford; the Appeal Court of the Family Court decided that in some cases, the Court may decline to make any property Orders between partners who have separated. Most parties who commence their case in the Court expect that the Judge will make some type of Order for a property adjustment.
In the case of Stanford, divorce lawyers saw that sometimes the Court will not make any order. Before the Court makes an Order the separation lawyer needs to be able to show that it is just and equitable to do so. [...]  READ MORE →

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Divorce Advice for Men

The period following the decision to divorce is difficult for both parties.

Divorce cases, particularly involving children, are stereotyped as being unfair towards men. This was rightfully assumed in the past, whereby the Courts would often approach divorce from a female perspective. However, divorce proceedings are much more balanced today, due to sound legal advice and various organisations which look to support the wellbeing of men.

One aspect of family law most parents are concerned with is custody. There is a common belief that the Court is more partial to women when it comes to child custody arrangements. If this is one of your concerns, you should begin documenting your interactions with your child, for example, taking them to extracurricular activities, attending parent-teacher conferences, helping them with homework. This will be proof of your active engagement in your child’s life. [...]  READ MORE →

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Divorce Advice for Women

Divorce proceedings are an emotional and stressful time for all parties involved.

Courts often look towards the best interests of the child when making orders for parenting arrangements.

It is normal for both parties to be harbouring negative emotions towards each other, meaning it may be easy to forget to act in the best interests of your child. However, it is important to facilitate for your child to maintain a healthy relationship with their father. If you believe your child will be unsafe with your ex-spouse, your concerns should be raised with your legal advisor immediately. [...]  READ MORE →

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Child Custody Laws: Parenting Plans and Parenting Orders

When making parenting orders under the Family Law Act 1975, child custody laws stipulate that the court is required to maintain the best interests of the child/children involved as the paramount concern.  It is advised that when divorce or a de facto relationship breakup occurs, that parents follow specific principles when making parenting plans.

Under the Family Law Act 1975 child custody laws highlight that:

  • both parents are responsible for the care and welfare of their children until the children reach 18, and
  • there is a presumption that arrangements which involve shared responsibilities and cooperation between the parents are in the best interests of the child.

Child Custody Laws: How does the court determine the best interests of the child?

When deciding on the best interests of a child, the court examines two tiers of consideration – primary and additional. [...]  READ MORE →

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I Want a Divorce

Can I apply for a divorce?

In Australia you can apply for a divorce 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

This is where seeking legal advice and assistance is highly recommended. Prior to filing an application a divorce lawyer can assist you in identifying your legal rights and obligations. They are able to assist in providing advice in relation to your child custody rights as well as property settlements. [...]  READ MORE →

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Separation Lawyer on Separation Versus Divorce

A separation is the step taken before a divorce is finalised. In divorce proceedings, you must have been separated for at least 12 months before you are granted a divorce. You are not required to officially register a separation, however, it is important to note down the date of separation. The Court must be able to find proof of this separation, for example, noting the date in your diary or saving text messages.

After the date of separation, the parties have 2 years in which they can initiate legal proceedings and resolve financial and property settlements (in a de-facto matter), and 12 months from divorce (in a marriage). [...]  READ MORE →

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Divorce Lawyer Advice on Parenting Arrangements

Divorce Advice – Parenting Arrangements

When seeking marriage breakup advice from a divorce lawyer in terms of parenting arrangements, the primary principle that will be established is shared parental responsibility. This means that until the child/children reach the age of 18 years, each parent has responsibility for the child regardless of any changes in the parents’ relationship (separation or remarrying) unless there is a Court Order specifying such responsibility. Parental responsibility under sections 61B and 61DB of the Family Law Act; consists of all duties, powers, responsibilities and authority that parents have by law. [...]  READ MORE →

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Divorce Lawyer Gives Ten Tips When You are Getting a Divorce

  1. Get professional advice. It is important to receive advice from a divorce lawyer you can trust. You will have someone to confide in who can advise you on your rights and responsibilities. Your lawyer will be able to provide options for you to take. Be sure to ask as many questions as possible so you are familiar with your legal standing.
  2. Mediation and Family Law Dispute Resolution are two options that parties are recommended to try before going to Court. These options are an effective way to resolve family law issues, without the stress and burden of going to Court. It is a less expensive, shorter process, which also fosters communication lines between parties. In children’s matters, mediation is compulsory before commencing Court proceedings. While it may not work in all cases, it is the best option if both parties are willing to negotiate and compromise in good faith.
  3. Get your finances in order. Firstly, document how much you have in your bank accounts, and the value of your assets and property. If possible, take half of your joint savings and start up an independent bank account. Anticipate your expenses, and prepare to spend beyond that number. In most divorce proceedings, each party is required to pay for their own legal costs, so it’s important you have a clear understanding of your financial standing.
  4. As tempting as it would be to keep some assets for yourself, be sure to disclose all property and assets to your divorce lawyer.
  5. Look after your kids. Depending on their age and emotional maturity, many kids may not understand why mum and dad are getting divorced. It will be very difficult for them to transition from a full family structure to a fragmented family. Their well-being is paramount in the eyes of the law, so always look out for their best interests.
  6. On that note, be prepared to be civil to your ex-spouse in relation to custody arrangements. It is important to maintain and foster a positive relationship with your ex-spouse so it does not create a difficult situation for your children as they grow older.
  7. Document all forms of abuse. Finding that there is an allegation of violence may influence the Court’s decision on who is responsible for the children, where the children live and the overall financial settlement of the case. You may be able to arrange an Apprehended Violence Order (AVO) for you and your children if you believe you are in danger during or following the separation process.
  8. Keep yourself clear-minded and healthy.  Divorce is a difficult, emotional and stressful time for all parties. It can be an isolating experience and you may feel emotions of depression, anger, resentment and regret. There are plenty of resources and services for men, women and children to assist in coping with the grief of a family separation. Your mental health is important, particularly if there are children in your care.
  9. DO NOT try to hurt your ex-spouse. This means you should avoid posting negative things on the internet about them or speaking poorly of them in front of your children. Not only does this reflect poorly on you, this may negatively impact your case during Court proceedings. Also keep in mind that anything posted on the internet is forever, so your friends and family may come across it in the future. Your children may not appreciate your negative portrayal of their other parent as they grow older.
  10. Update your will and Superannuation binding nomination. In the constant flurry of divorce paperwork and visits to a divorce lawyer, your will may be the last thing you think of. This means they will not inherit your assets. It is recommended you appoint a power of attorney to take care of things if you’re incapacitated and appoint the correct beneficiaries who will receive your valuables and assets upon your passing.

Click here for more information on getting a divorce.

For advice about getting a divorce contact us on 1800 300 170 or email us at familylaw@matthewsfolbigg.com.au [...]  READ MORE →

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Leaving relationships of abuse knowing your rights

Leaving a relationship, whether it involves property, children, pets or just yourself, is a difficult and personal decision to make. This decision becomes clouded with further issues when there are allegations of violence or emotional abuse.  Often, these issues mean an individual leaves their home and belongings without obtaining correct advice as to their relationship break down.

In Australia, your partner has no right to:

  • Demand that you leave the shared property or home,
  • Prevent you from leaving the shared home either alone, or with your children, belongings or pets,
  • Prevent you from taking personal documentation, such as your passport, financial documents that may contain shared information, medical information or documentation relating to your children,
  • Prevent you from taking jointly owned property that may assist in your day-to-day care of your children or pets such as bedding,  crockery or clothing,
  • Intimidate you by stating if you leave them they will have you deported due to issues of citizenship and immigration.

It is important to note that the above considerations do not apply if there is a Court order involving any or all of the above concerns. [...]  READ MORE →

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Third Party Debtors in Family Law

Persons owed money by another person under an order of the Court or child support liability can enforce payment of the debt in the Family Court. One of the methods that child support lawyers  can use to enforce debts is a Third Party Debt Notice. Under this Notice the Court directs a third party to pay money that the third party owes to the respondent to the payee instead of the respondent.

Typically, the third party is an employer of the payer or a bank or building society where the payer has money in an account. When served with a Third Party Debt Notice, any money that you owe to the payer is affected by the Notice. This could be: [...]  READ MORE →

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Grandparents and Child Custody Applications

In a recent case, the maternal grandmother brought a child custody application in the Federal Circuit Court against her daughter and son-in-law who were at the time separated, seeking orders in relation to her six year old and four year old grandchildren. Initially the grandmother commenced proceedings seeking that the children live with her but later seeking that they have holiday time with her and weekend time each month.

The Judge noting that the grandmother had an extremely poor relationship with the mother and that the grandmother failed to understand the impact of her behaviour upon her child and grandchildren the Court considered what would be in the best interests of the children.  The case shows how important it is for your family law lawyers to provide an understanding to you as to what factors the Court needs to have regard to and what circumstances can be persuasive in particular cases. [...]  READ MORE →

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Family Court Can Make Property Orders Even Before Parties Separate

In an unusual case heard by the Full Court (the Appeals Court) of the Family Court in early 2012 the Court decided that in certain circumstances it is able to make a property settlement agreement even when the parties have not actually separated.

In this case, an older couple had both been married before and had adult children from their previous marriage. The wife became ill and needed to go into an aged care facility. There was no question of divorce and they were separated only because of her medical condition. Her adult children after seeking Family Law advice brought an application to the Federal Magistrates Court as her case guardians seeking property settlement orders that the home in which the couple had lived be sold and that she receive some of the proceeds of sale to pay for the bond and fees payable to the aged care facility. The husband wanted to stay in the home but agreed to continue paying ongoing expenses and maintenance for his wife to remain in the aged care facility. By the time the matter came to be heard by the Court the first time the wife’s condition had deteriorated to such an extent that she needed to be in high care where in fact it was not necessary for her to pay any bond. [...]  READ MORE →