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How to Prepare for an Initial Consultation with a Family Lawyer

Introduction

Before your attendance at an initial consultation with a family lawyer you can take steps to prepare to ensure you get the most out of your conference.  Think about these key steps that you might consider  before the conference.

Understand Your Goals

Before the initial consultation, take some time to understand your priorities and clarify your own goals. What are the outcomes you are looking to achieve? By understanding your objectives, it will help your family lawyer to tailor their advice to consider your expectations and needs. [...]  READ MORE →

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HOW OTHER AREAS OF LAW MAY INTERACT WITH FAMILY LAW: A FAMILY LAW LAWYER REVIEWS A RECENT HIGH COURT DECISION

Family law lawyers across Australia have been reminded of the need to consider the application of equitable principles when providing legal advice concerning property management. The recent decision in Bosanac v Commissioner of Taxation & Anor brought this consideration to the attention of many legal experts, including family law lawyers.

The Case:

The High Court referred to two equitable principles. The first was the presumption of a resulting trust. This basically states that in a court of equity it is presumed that people do not intend to gift someone real property. Instead, the recipient of the property is said to hold it on trust for the donor unless the presumption is rebutted on the facts. [...]  READ MORE →

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A DIVORCE LAWYER DISCUSSES THE IMPORTANCE OF INCLUDING AN APPROPRIATE PROVISION IN A FINANCIAL AGREEMENT

A divorce lawyer can advise you of the various provisions in the Family Law Act 1975 (Cth) that allow for the protection of financial resources and matters. Often, when parties enter a relationship there is a discussion about financial resources; how they are to be used in the relationship or how they will be used for the maintenance of children to come from the relationship.

To account for these considerations, a financial agreement can be drafted by a divorce lawyer and signed by the parties. This type of document is a legally enforceable tool that provides a set of conditions for the distribution and future use of monies. [...]  READ MORE →

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A child custody lawyer outlines the presumption and evidence of parentage

In uncommon and unfortunate circumstances a child custody lawyer may be called to advise a client who doubts the identity of the biological parent of their child. When this scenario arises, the law applies a presumption in respect of parentage and the evidence that may be obtained to decide the identity of the biological parent by law.

How does the law determine a presumption?

A child custody lawyer can recognise how the Court is able to make presumptions. More precisely, how the Court will readily make a presumption for the following: [...]  READ MORE →

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Till Debt Do Us Part: Family Law and Corporate Insolvency

By Jacob Reardon a Solicitor of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.

Under section 1337H of the Corporations Act 2001 (Cth) (“the Act”), a Court exercising Federal or State Jurisdiction can transfer a civil proceeding arising under the Act to another Court with appropriate jurisdiction where it considers that it is in the interests of justice to do so. What about where the defendant directors to an insolvent trading claim have commenced family law proceedings between themselves? [...]  READ MORE →

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A DIVORCE LAWYER EXPLAINS SHUTTLE FAMILY LAW MEDIATION

Mediation is often an essential part of resolving a Family Law conflict. However, mediations can appear to be overwhelming, especially in the context of a relationship characterised by family or domestic violence or in high conflict relationships. Is there a way to go to mediation without having to come into contact with the other party? Depending on the individual situation, shuttle mediation may be a suitable option.

Shuttle Family Law Mediation

In shuttle family law mediations, each party is separated into different rooms or locations (this includes in online mediations where separate breakout rooms are offered). The mediator moves between the rooms and conveys the other party’s statement as to the issues, ideas for progressing the case and any offers to settle the case. This type of mediation is aimed at maximising both parties’ safety whilst providing a means to discuss, and hopefully resolve, the case in a confidential setting. [...]  READ MORE →

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THE HYBRID COURT: SEPARATION LAWYER REVIEWS HOW FAMILY LAW CASES ARE MANAGED IN A POST-LOCKDOWN WORLD

In 2020, the Family Law Courts and Separation Lawyers were forced to completely shift their mode of operation from face-to-face hearings and paper files, to online hearings and electronic court files, all thanks to the COVID-19 pandemic.

2 years later, in 2022, the Court’s methods have begun to shift into a more hybrid approach to the management of Family Law cases. Many court listings are still being conducted by way of Microsoft Teams, particularly when dealing with more administrative issues. Other court listings are now in-person before the court. The court file remains electronic, requiring parties to upload their court documents by way of the Court’s electronic file management system. [...]  READ MORE →

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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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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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A prenuptial agreement lawyer explains how to change a binding financial agreement

It is best to seek out a prenuptial agreement lawyer if you want to dispute a binding financial agreement (‘BFA’). This type of agreement, like any other contract in law is subject to strict rules. However, s 90K (1) of the Family Law Act 1975 allows a court to set aside a binding financial agreement. There is a list of reasons outlined in this section including:

  • The agreement is obtained by fraud
  • The agreement is void, voidable or unenforceable
  • Arising circumstances make it impracticable for part of or the entire agreement to be carried out

A prenuptial agreement lawyer can advise you on what makes an act of “fraud”. Ordinarily it is involves using false representations to obtain an unjust advantage. However, to prove fraud, it must be shown that the false representation was made knowingly. This can be either without belief in its truth or in a reckless manner. [...]  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 →