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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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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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Court introduces new initiatives to help alleviate the significant delays in the Court

A divorce lawyer will advise you that the Court delays in hearing and finalising your property application under the Family Law Act have in some registries became even longer. It is for this reason that the divorce lawyer tries to encourage their client to consider mediation either privately or through the Court.

The Court itself is also considering options to help reduce the back log of cases.  A divorce lawyer will provide information about the PPP Program currently being tried out in some registries including at the Parramatta Federal Circuit Court.

The aim of the program is to:-

  • Identify cases that fall within the guidelines of the program
  • List those cases separately in lists where the progress can be clearly tracked
  • Lessen the amount of required documentation to be filed at Court
  • Provide those parties with the opportunity to participate in a Conciliation Conference before a Registrar (where each party and their divorce lawyer attend).
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Property Settlement Agreement – A Four Step Process

A property settlement is a process which involves the division of assets between parties.

If you have separated with your partner you may be left wondering what your rights to the assets might be. You might be questioning what is involved and how our lawyers can assist you to reach a property settlement agreement.

Here at Matthews Folbigg Lawyers, the usual process to get your Property Settlement started is to meet with one of our lawyers who will work through 4 important steps with you.

Step 1: Work out the “Net Assets”

Working out the “net assets” involves listing the parties’ assets, liabilities, superannuation and financial resources to reach a net equity which we call “the asset pool”.

Step 2: Consider the “Contributions of each party

This step considers the “contributions” of each party. It includes financial contributions towards the acquisition of assets including the purchase of a home and mortgage repayments as well as non-financial contributions such as being the parent and homemaker.
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Family Inheritance: Can your Separation Lawyer Help?

A common question asked of a separation lawyer is whether inheritance is included in a family property settlement. The Full Court of the Family Court in Bonnici & Bonnici held that property does not fall into a “protected category” merely because it is an inheritance.

How the Court determines whether an inheritance can form part of a family property settlement depends on when the assets were inherited and the impact of the inheritance on the available property pool.

Impact on Asset Pool

In the case of Bonnici & Bonnici, the Full Court of the Family Court held that if there are ample funds already in the property pool for a settlement, the inheritance would normally be treated as the entitlement of the receiving party. However, if the inheritance is the only asset of the relationship and one party performs a more substantial homemaker role to their financial detriment, it is open to the court to include inheritance in the property settlement.
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What is the Role of the Mediator in Family Law Mediation?

Parties often attend family law mediation as an opportunity to try and resolve their family law dispute whether it be custody matters, property distribution or child support matters. However often parties can be confused as to the role of the Mediator in family law mediation and their part in assisting the parties in reaching a resolution.

The greatest misconception by parties is that the Mediator will provide the parties with legal advice. They will not. The Mediator must remain neutral and therefore will not advise either party as to the legal merits of their case. The Mediator’s prime role is to facilitate the family law mediation process in a way that enables both parties to effectively identify the issues in dispute and assist with generating options that might resolve these issues.

It can be hard for parties to talk to each other about things that concern them even when lawyers are involved. Family Law Mediation is designed to be a safe space where each party has an opportunity to raise things they may not have been able to before. In the process of finding common ground that may not be apparent from the outset, the Mediator assists the parties in crafting a unique solution that is best for the family’s circumstances.
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Can your Affair End in a Property Settlement? Family Law Lawyers Delve Into This

If you’re having an affair, something that you may want to consider is whether the person you are having an affair with can claim your property after the relationship breaks down.

Firstly, your family law lawyers will need to consider whether your affair 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.

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.

The Court said that “The key to the definition is the manifestation of a relationship where the parties have so merged their lives that they are, for all practical purposes, living together as a couple on a genuine domestic basis. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined [by the law]”.
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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. The husband appealed the final Orders which was dismissed. In 2020, the husband’s divorce lawyer was heard on a further application regarding the 2012 Orders again claiming that the Orders significantly impede on his freedom of movement. Judge Rees rejected the husband’s argument that given he has not made any payments to the wife over the 8 years that the “the Court should simply “give up” and allow him to travel.” If he was permitted to travel he would have no incentive to comply with the original Orders. The husband’s application was ultimately dismissed.
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