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SEPARATION LAWYER ON WAYS TO FORMALISE AN AGREEMENT REACHED

CONSENT ORDERS

Consent Orders are generally the best way to formalise an agreement reached about property and or parenting matters.

To do this an Application for Consent Orders is to be filed with the Federal Circuit and Family Court of Australia. The Application should contain or have attached proposed Orders detailing the agreement reached, generally with time frames to comply with the agreement.

The application seeks:

  • General information about each party;
  • Details about the relationship;
  • Details about other court matters;
  • Details about any children;
  • Details about the orders sought;
  • Details of all income, assets, liabilities, debt, superannuation and financial resources of the parties; and
  • Details about the financial effect of the proposed division (for property orders only).

Due to the nature of the document and the precise drafting of the Orders sought we encourage you to seek assistance from our separation lawyer. [...]  READ MORE →

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A SEPARATION LAWYER DISCUSSES ALTERNATIVE DISPUTE RESOLUTION IN FAMILY LAW PROCEEDINGS

Music to any separation lawyer’s ears is the prospect of parties successfully participating in alternative dispute resolution. There are many forms of conflict resolution that can take place with some including:

  1. Family Dispute Resolution (FDR)
  2. Conciliation
  3. Mediation; and
  4. Arbitration

Family Dispute Resolution

The first process a separation lawyer will advise of (when the main issue is parenting) is Family Dispute Resolution (FDR). This form of mediation is conducted by a FDR practitioner rather than a mediator, arbitrator, or Judge. However, the role of an FDR practitioner is not to provide legal advice (as would a separation lawyer) but instead to ensure all parties’ concerns are voiced and in parenting matters that there is consideration of the child’s best interest. In fact, FDR is mandatory before parties can apply to the court for a ‘Part VII order’ which deals with parental responsibility and provisions relating to parenting orders. It is important to note there are a few exceptions to this rule in operation such as s 60I(9) which addresses instances of family violence. [...]  READ MORE →

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A family law lawyer explains de facto relationships before the Court

Parties to a relationship may have differing views as to what stage their relationship is at and the level of commitment each party has towards their relationship. One party may be content to be involved in the relationship, but not wish to commit to the extent that the relationship is granted marital status.

Under the law a declaration of whether parties are in a de facto relationship is not dependent upon the intention of the parties, but rather the circumstances of, and surrounding, the relationship. [...]  READ MORE →

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Sole use and exclusive occupation from the perspective of a separation lawyer

A separation lawyer is often faced with the dilemma of who is able to remain in the matrimonial home following their client’s separation. How and where a client can secure suitable accommodation in circumstances where the other party refuses to leave the former matrimonial home is an issue not uncommon to a separation lawyer.

The situation is made even more challenging when finances are not available to a party to obtain alternative accommodation for himself or herself and/or the children. Obtaining exclusive occupation of the former matrimonial home and effectively evicting your former spouse is a difficult task to achieve. [...]  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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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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Advice from a separation lawyer in a child custody dispute

Seeking advice from a separation lawyer during a divorce can be necessary especially if there are children from the marriage who are under 18 years old. Generally, a parenting order allows for a child’s parents to have equal shared parental responsibility. Once this order has been made (and the presumption not rebutted) then the court must consider if the child spending time (equal, substantial or significant) with each of the parents is reasonably practicable.

In the recent decision of Miley [2021] FedCFamC1A 62, the Court heard a mother’s appeal against a decision which ordered the return of a child from Victoria to Western Australia. With assistance from a separation lawyer, the parents of the child separated in 2017. Prior to then, the parents were all residing in Western Australia. [...]  READ MORE →

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A prenuptial agreement lawyer’s role in disputing a BFA

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

Fraud

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. 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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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 →