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Section 60I Certificates: What is it and can it be bypassed?

Under the Family Law Act, parents are required to make a genuine effort to resolve any parenting disputes in relation to their child or children through family law mediation before they are eligible to commence Court proceedings.

How to obtain a Section 60I Certificate?

To obtain a Section 60I Certificate, a parent is required to attend family law mediation with an Accredited Family Dispute Resolution Practitioner (“the mediator”). The mediator can issue a Section 60I Certificate in the following circumstances:-

  1. If a party does not participate mediation because the other parent refused or failed to attend;
  2. If a party did not attend mediation because the mediator did not consider the matter to be appropriate for mediation (for example, due to allegations of family violence);
  3. Both parents attended mediation and both made a genuine effort to resolve the matter;
  4. Both parents attended mediation, however one of the parents did not make a genuine effort to resolve the matter; or

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Can your Affair End in a Property Settlement? Family Law Lawyers Delve Into This

If you are in an intimate relationship with another person, something that you may want to consider is whether the nature of the relationship with that person could result in a possible claim for  property settlement if that relationship were to break down. Firstly, your family law lawyers will need to consider whether your relationship amounts to a de facto relationship. Considerations include the duration of the relationship, whether you have lived together, whether you attend events together socially, and whether you depend on each other financially.

Case Example

The case of Jonah v White (2011) considered whether someone you are having an affair with can amount to a de facto relationship. In this case, the Husband (H) had a 17 year long affair with a woman (Ms J). During the affair, H continued to live with his wife and three children. Family law lawyers for Ms J argued that the relationship she had with H amounted to a de facto relationship under the Family Law Act.
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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.

Example: Rahman v Rahman

In the 2012 decision of Rahman v Rahman, the husband was Ordered to pay to the wife a sum of $377,000 and was restrained by injunction from leaving Australia until he complied with that Order.

To ensure he did not leave Australia, he was Ordered to hand in his passports to the Court and was placed on the Australian Federal Police watchlist.
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Is COVID-19 a reasonable excuse to withhold a child from a parent? A Family Law Lawyers Answer

A common question asked of family law lawyers is: “do I have to continue complying with parenting Orders during the pandemic?”

There are very limited circumstances in which the Court will permit parents to fail to comply with Orders of the Court.

Parents will need to establish that there is a reasonable excuse for not complying. Whether the action or conduct is needed and necessary to protect the child from harm should be considered.

In a recent case of Pandell & Walburg (No 2) the Court considered the circumstances of  COVID-19 and how it relates to the consideration of whether a parent has a reasonable excuse not to comply.

In this matter, although interim parenting Orders provided for the father to spend time with the child, the mother had been withholding the child for approximately 3 months. The father’s family law lawyers filed an urgent application for time to resume and for make-up time. During the hearing, the mother claimed that she had received advice from the child’s GP that as a result of a pre-existing health condition, the child was at greater risk of suffering an adverse reaction to a possible COVID-19 infection and she should self-isolate with the child.
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The Presumption of Equal Shared Parental Responsibility – What this means and how it affects your child – Child Custody Lawyer advice

The presumption of equal shared parental responsibility is a consideration of the Court when determining child custody applications. The “best interests of the child” is an enshrined consideration under Australian law and is the foremost consideration in child custody cases. As such, the Act set out under section 61DA (1) that it is ‘in the best interests of the child for the parents to have equal shared parental responsibility for the child.’ It is important to note however that this presumption looks to shared responsibility, not shared time. Furthermore, it requires both parents to make joint decisions about the long-term considerations for the child. Therefore parents are required to make a genuine effort to consult with the other parent and come to a general consensus about such decisions. This is all in the best interests of the child.

The Court’s presumption applies to interim and final orders.  There are circumstances where this presumption does not apply (s61DA (3)). Such circumstances are specific and the presumption will not apply if the Court finds there are reasonable grounds to believe that a parent (or person living with the parent) has engaged in either abuse of the child or another child who was a member of the parent’s family at the time or in family violence in general (s61DA(3)).
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Family Law Lawyer advice on the effect of death on property proceedings

The law often deals with unforeseen events in the course of Court proceedings under the Family Law Act. If the other party in your proceedings dies before property proceedings are completed, then your family lawyer will inform you of Section 79(8) of the Family Law Act.

The Court will look to this section if in your case, the other party (your ex-spouse) passes before property related proceedings are completed. It is important to know that under the relevant section of the statute (79(8)(a)) any proceedings which have commenced by a family law lawyer before the person passes can be continued by or against the personal representative of a deceased party. This appointed representative would then continue the case on the deceased’s behalf. The Court may make the property order it would have made had the deceased party not died, and only if the court deems it appropriate to do so. Such a property order would still be enforceable by or against the estate of the deceased party. The Court considers the appropriateness of an order to be made after the passing of one of the parties according to the case of Erdem & Ossay. If you are worried about the state of your own health or that of the other party it is advised that you inform your Family Law Lawyer as soon as possible in order for your legal representative to make necessary arrangements and decisions in your case.
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The Consequences of Escaping Debt in Family Property Proceedings

If you or your former spouse owe a significant sum of money to a person or company known as a creditor, you may be wondering how this will be dealt with in your family property proceedings. Some have attempted to transfer property from one spouse to another in a bid to protect their property from a creditor’s claim. Our family law lawyers can provide some guidance on what you should do if you owe money to a creditor and the consequences for non-disclosure.

During your family property proceedings, there is an obligation on both parties to disclose any significant creditors or any significant claim against them by a third party to the Court. This includes Applications for Orders made by consent. In circumstances where a Family Court Order would prevent a creditor to recover their debt, your family law lawyers may need to give the creditor notice of the Family Court proceedings who are then provided the opportunity to intervene in the proceedings and seek their own orders to protect their interests in having their debt paid.
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When Can You Commission Your Own Expert Report – Family Law Lawyers Know How

In circumstances where there is an issue that is contested in family law proceedings, parties may look to obtaining a single expert report from an expert who is instructed by both parties’ family law lawyers to provide evidence on the issue. Common examples of an expert report include a valuation report to determine the value of the family home or one party’s business.

In the recent Family Court case of Rigby & Kingston (No. 2) [2020] FamCA 467, one of the issues in contention was whether the Husband was underpaid for his work when he was employed as a contractor. The Wife’s family law lawyers had directly invited the Husband on three separate occasions to engage a jointly appointed expert. The Husband did not agree to the Wife’s propositions. In that event, the Wife’s family law lawyers had commissioned their own report with instructions solely from the Wife to provide evidence on whether the Husband was being underpaid.
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