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FAMILY LAW LAWYER EXPLORES NEW FAMILY LAW HIGH COURT DECISION – BREAK UP OF DE FACTO COUPLE

In May 2022, the High Court of Australia made a decision in the case of Fairbairn v Radecki [2022] HCA 18. This case gives very important commentary on de facto relationships, in particular on the issue of whether a de facto relationship has broken down.

THE FACTS

The parties were in a de facto relationship from around 2005. They lived together, in a property owned by the de facto Wife, but kept their finances “separate”. The couple had even entered into some (non-binding or enforceable) “financial agreements” as to how they would maintain their separate property. They structured their financial affairs around the agreements and acted separately. [...]  READ MORE →

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Can a separation lawyer consider my contributions to stepchildren during a property settlement?

A separation lawyer has the expertise to assist you in property proceedings. In a property proceeding, the Court will concern itself with the task of determining the parties’ contributions to the relationship. Whilst each matter is assessed on a case by case basis, the Court will consider both financial and non-financial contributions.

In determining contributions, your separation lawyer may consider your role as a ‘step parent’. The prevalence of blended families in today’s society is not uncommon. So the question then arises as to how the division of assets is affected when one spouse makes contributions to non-biological children. The case of Robb v Robb affords the Court guidance in these cases (i.e., if contributions made by one party to a non-biological child can be considered). [...]  READ MORE →

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Asking a marriage lawyer if I can change my child’s surname

Moving forward from a separation can be arduous and filled with unexpected change. Not only do you have to re-evaluate your living circumstances but also your child’s. A marriage lawyer will be able to navigate you through a claim proposing a change to your child’s surname. A marriage lawyer will advise you of this unique area of family law and in this article we will consider if the court has allowed for this to occur in the past. If this is a claim you wish to pursue it is just as important that a marriage lawyer is able to provide you with some key points. [...]  READ MORE →

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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. [...]  READ MORE →

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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: [...]  READ MORE →

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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. [...]  READ MORE →

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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. [...]  READ MORE →

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How Child Support Lawyers Determine a Child’s Best Interest

It is no easy feat understanding the turmoil and emotional challenge that children endure during a family separation. Whilst lawyers have a duty to their client, child support lawyers will seek to consider the best interests of children as paramount. Child support lawyers understands the court’s perspective and approach to complex family law disputes. Pursuant to section 60CC (2) of the Family Law Act 1975 the Court must have regard to certain primary considerations as set out in the Act, to determine a child’s best interests. [...]  READ MORE →

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A marriage lawyer explains time limitation for proceedings

Approaching any marriage lawyer when filing an application for a divorce order can be daunting and overshadowed by emotion. The breakdown of any relationship brings uncertainty and stress. It is important to consider any legal requirements that may apply when finalizing the arrangements for children and/or distributing assets. A marriage lawyer will consider the Family Law Act 1975 which provides time limitations for the bringing of property claims.

In the recent decision of Welland & Hawthorn [2021] FedFamC1A, the Full Court heard an appeal from the dismissal of an application for leave which sought to bring property settlement proceedings out of time. In determining the duration of the parties’ de facto relationship, the Court found that separation had occurred in February 2016. Since the de facto wife filed her application in November 2019, it was 20 months out of time. The de facto wife had two children who lived with her when the de facto husband was incarcerated. It was claimed that the de facto wife had relied on assurances from the de facto husband in 2017 and 2018 in the form of financial provisions. Although the applicant spouse engaged multiple marriage lawyers between 2017 and 2019 no proceedings were actually brought. [...]  READ MORE →

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Changing Parenting Orders And The Principle Of Rice & Asplund

Under section 65D(2) of the Family Law Act 1975, a Court can make an order to discharge or vary a parenting order. A child custody lawyer will be able to inform you that despite this power, there was an important principle set out in the case of Rice & Asplund [1978] FamCA 84. This case ruled that a Court should avoid changing parenting arrangements unless there has been a significant change in circumstances or new material facts to justify such a “serious step”. Seeking advice from a child custody lawyer will help analyse the applicability of this test in the event that you may want to vary a prior parenting order. [...]  READ MORE →

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How Do I Get Equal Child Custody of My Kids?

An equal time arrangement for children is typically called a “week about” arrangement. That arrangement involves the children spending one full week with one parent and then one full week with the other parent on an ongoing basis. Sometimes an equal time arrangement may take other forms across a fortnight or month arrangement such as the children spending Monday to Thursday with one parent and Friday to Sunday with the other.

When deciding on child custody arrangements, the primary consideration should be the best interests of the child. How will the children cope spending a week away from the other parent and the shifts in household over the school term? Is the arrangement reasonably practical and are both parents able to communicate with each other? [...]  READ MORE →

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Divorce Lawyer Explains section 114 Orders – Restraining Travel to Enforce Property Settlements

A divorce lawyer explains how the Family Court can impose restrictions on travel to ensure compliance with Family Court Orders.

In accordance with section 114 of the Family Law Act, the Family Court has the power to restrain a person from leaving Australia pending compliance with Family Court Orders, including final orders.

The Court will consider the following:

  1. A person’s freedom of movement, and
  2. The likelihood that the Order will not be complied with if the paying party’s freedom to leave the country is not restrained.

Ultimately, the Judge is faced with a balancing exercise and will consider whether the person’s compliance with the Orders outweighs their personal freedom of movement. [...]  READ MORE →