Your Will, Your Way
A Will is an incredibly important document that will save your loved ones and survivors time and stress when deciding what YOU wanted for them.

As the cliché goes, there are only two certainties in life: taxes and death. With this in mind, it is extremely important to ensure that you have a Will in place so that when you pass away, your hard-earned finances and cherished belongings are distributed in a fashion that you are comfortable with. In addition, having an up-to-date and complete will, overseen by your solicitor, ensures that the people who mean the most to you – whether this be your children, partner, charities, or other relatives and friends – are allocated the finances and belongings that you intend.

As shown on the recently-aired SBS Insight episode “Where There’s a Will”, if your Will is not particularly clear, and particularly if it has not been crafted by an experienced solicitor, then it may be successfully challenged – causing financial hardship, emotional turmoil and unnecessary family feuds for your loved ones.

With this in mind, Freedman & Gopalan suggests you think about the following when deciding to create or update your Will, and speaking to our team about executing your Will…

What you should include in your Will

Who:

What:

How:

When:

These are merely questions that you should think about to ensure you understand the significance of having a thorough, clear and well-crafted Will. If you are seriously thinking about creating or updating your Will, it is always best to speak to an experienced solicitor and have them discuss your various options.

 

If you have any questions regarding your current Will, or want to have a Will drawn up, fill out the enquiry box or give us a call on 02 8917 8700 and we will get back to you ASAP! 

It’s an increasingly common situation – you and your partner decide to separate, and must ensure the needs of the children you have together are met. You’ve consulted your family lawyer and begun the process of negotiating your child’s living, schooling and other related arrangements. After this process, the Court has made Final orders stipulating the rights and responsibilities of each parent in relation to the children’s arrangements.

And then, despite these Orders having been made, one of the parties breaches the Orders. In this situation, what penalties are available?

Penalties from the Family Law Act

Division 13A of the Family Law Act 1975 (Cth) states the penalties that arise from contravention of orders and other related obligations that affect children. The section deals with situations where:


This grouping shows the broad nature of the powers available to the Family Court – by allowing for a variety of situations in which orders may be breached, the Court is able to tailor the specific breach to the most appropriate penalty.

What the Court Can Do:

Depending on the seriousness of the breach and whether a reasonable excuse for any contravention can be found, the Court has a range of powers available to penalise a mother or father breaching a parenting order. These include:

These examples of the wide-ranging nature of the penalties available to the Court is dependent on the seriousness of the breach and a variety of other factors.

Given the wide range of penalties available to the Court in the event of a breach, if you or the other party believe there has been a contravention of a Parenting Order, it is essential that you seek the advice of your Family Lawyer.

 If you believe you or your former partner have breached a Parenting Order, or for any legal advice relating to parenting matters, please do not hesitate to call Freedman & Gopalan Solicitors for legal advice on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

Separating from a partner can be really difficult and it has the potential to become more challenging when your assets have to be divided. The assets can be comprised of real property, personal property and debts.

To make sure you are helping yourself to get the best possible outcome, stay informed of the various ways division is undertaken.

Firstly, you and your partner can agree on how your property will be divided without any court involvement. If you and your partner do reach an arrangement that suits the both of you, the next step would be to formalise your agreement by applying for consent orders in the Family Court.

Whilst this would be the most beneficial for both parties, it is evident that this is easier said than done.

Therefore, if you and your partner cannot reach an agreement, you can apply to the court for Financial Orders. These Orders are binding and allow the court to order a person to pay money to another person by a certain time, transfer or sell property, and sign documents.

In this case, it should be stressed to any newly divorced or separated person, that the outcome will rarely be an even split of the assets as the court takes a number of factors into consideration when dividing property. However, the Family Law Act 1975 requires orders for a just and equitable division of assets.

The division process will ordinarily involve a number of steps:

If you have found yourself in the position where the above facts are important, it is time to consider legal support. The area of divorce and property settlement is a minefield no one could expect you to go through on your own.

If you are struggling with the process of property settlement following a divorce, please do not hesitate to call Freedman & Gopalan Solicitors for legal advice on 02 8917 8700 and let us guide you through it.

 

 

 

If you and your partner separate, it can be a stressful and emotionally turbulent time. If you and your partner have children together, then the process can be even more complex, as you balance your own emotional well-being with ensuring the children are as content as possible. In these situations, it is best that you consult with a family lawyer so that you are aware of the legal requirements that you and/or your partner must indicate when embarking on his process, in order to create the safest, happiest outcome for your children.

Family Dispute Resolution

Where you both disagree in determining arrangements for your children, the first step that you and your partner should take is to make genuine and reasonable efforts to communicate with your former partner; and make genuine efforts to resolve the dispute by attending counselling or mediation, often called “Family Dispute Resolution”. In fact, Family Dispute Resolution is a requirement that both parties must fulfil before the matter is taken to the Court as you will require a Section 60I Certificate to be obtained before legal proceedings can be commenced.

Parenting Plans

The next step in this process will usually be discussing what kinds of parenting arrangements/agreements can be entered between yourself and your partner. Your family lawyer will be able to assist you in creating a Parenting Plan.

Importantly, the plan must be in writing, signed and dated, and can be amended by simply creating another written, signed and dated agreement. Parenting plans do not create any kind of legal obligation on either parent – but if the matter does go to Court, the Court can take into account the content of the parenting plans.

Consent Orders

Next, Consent Orders may be made. Consent Orders are a legally binding agreement that is filed with the Courts that formally states the agreement that is made and negotiated between parents in regards to arrangements for the children. It is very important that a family lawyer assists you with creating this document; as it is legally binding.

It is important you are aware of the rights and responsibilities the agreement will have on you and your partner.

The Next Steps

If the matter is unable to be resolved through these means, it may go to the Court – either the Local or Family Court. At this stage, the Court will determine arrangements for you and your partner’s children by deciding what is in the best interests of the children.

The Parenting Orders made by the Court will include factors as to who the children will live with, how responsibility for the children will be shared, and how many future disputes in relation to what is in the Orders will be resolved.

If you are thinking of separating from your partner or are in dispute about arrangements concerning your children, contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

Choose-Your-Court-Carefully-Family-Court-or-Federal-Circuit-Court
The distinction between the Family Court of Australia and the Federal Circuit Court of Australia is important when deciding where to have your matter heard.

If you are currently dealing with a family law matter that needs to go to Court, which one should you look to?

The Federal Circuit Court of Australia

The Federal Circuit Court of Australia is an independent Court under the Australian constitution and is constituted by the Chief Judge and judges as appointed under section 8 of the Federal Circuit Court of Australia Act 1999 (Cth). The primary objective of establishing this Court was to provide a simple and accessible alternative to litigation in the Family Court.

It hears approximately 80% of family law matters including parenting, financial, divorce and child support cases. However, this Court also has the jurisdiction to hear matters pertaining to legal issues such as bankruptcy, copyright, migration and trade practice. One of the benefits of having your matter heard in this court is the direction from the Federal Circuit Court of Australia Act 1999 to ensure the Court operates informally and uses streamlined procedures. This has the effect of providing, generally, a cheaper and quicker litigation process.

This court tends to deal with less complicated matters than its partner, the Family Court.

The Family Court of Australia

The Family Court of Australia hears a smaller percentage of family law cases but tends to deal with the most complex of parenting and financial cases such as child welfare agency allegations of sexual abuse or serious physical abuse, international child abduction under The Hague Convention and complex mental health issues.

In regards to financial matters, the Family Court of Australia will hear a case if it involves more than two parties, complex questions of law and complicated valuations of trusts and corporate structures.

If you have a family law matter, and you believe it is a matter for one of these Courts, contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

Co-ownership is where a property is owned by two or more parties, either as joint tenants or as tenants in common. In instances where co-owners of a property are in dispute, for example when or whether the property is to be sold, the Court may allow one or more of the co-owners to apply to appoint trustees for the sale or partition of the property. This essentially has the purpose of forcing the sale of the property, even where one or more parties may object to such an act.

While it is perhaps easier and definitely less costly to attempt to settle such matters outside of Court –   a situation where your lawyer can also assist –  where this is not possible or mediation has failed, an application under Section 66G of the Conveyancing Act 1919 (NSW) has long been a source of assistance to parties wanting to sell the property but faced with an uncooperative co-owner.

As stated above, the court’s power to appoint a trustee to effectively force the sale or partition of property comes from section 66G of the Conveyancing Act, which states:

… on the application of any one or more of the co-owners, appoint Trustees … [for the property] to be held by them on the statutory trust for sale or on the statutory trust for partition.”

After a successful application is made and the property is sold, monies made from the sale are kept in trust by the trustee/s appointed by the applicants and the Court. The money from the sale will be distributed between relevant parties following any orders the Court has made.

Interestingly, a Court will generally only refuse an application under Section 66G in special circumstances. This may include evidence of a prior agreement between parties that indicates a promise not to sell the property unless all co-owners agree.

It is best to seek legal advice if you are thinking of selling your home which is currently owned with another person who is not prepared to sell the property, so that you can apply for a Section 66G Order as we can advise you best in order to prepare the Application and ensure that your costs are sought to be paid by the other party.

If you are in a property dispute or are looking to sell your property which is currently co-owned with another registered proprietor but have dispute in relation to selling the property, contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

Re-marrying after the death or divorce of your former spouse should be a stress-free occasion as you and your new partner enter the next stage of your lives together. While marriage the first time around has its own legal complexities, if you intend to re-marry, there are certain requirements you must meet before a civil marriage can be performed.

Generally, in Australia, when two parties are to marry, the marriage celebrant needs to be given:

This is the case whether it is your first or a subsequent marriage. However, in the case of re-marriage, further documentation is required. If either party has been married previously, they must provide to the marriage celebrant either:

Specifically, Section 42(10) of the Marriage Act states:

“where the declaration made by a party… states that that party is a divorced person or a widow or widower, an authorised celebrant shall not solemnise the marriage unless there is produced to him or her evidence of that party's divorce, or of the death of that party's spouse, as the case requires.”

Thus, in Australia, the law (Marriage Act 1961 (Cth)) indicates that a final divorce order, decree nisi or decree absolute is not necessary to be shown upon re-marrying where the former partner has died and proof of this, such as a death certificate, is given. This may reduce some stress in cases where one party may not have access to one of these documents – only one is necessary to show to the marriage celebrant.

The difference between a Decree Nisi, Decree Absolute and a Divorce Order

The old terms ‘decree nisi’, ‘decree absolute’ and currently-used term ‘divorce order’ are often used interchangeably despite their different meanings.

A decree nisi does not end the marriage – a decree nisi just means that the court is satisfied that the person who issued the divorce petition has proved the contents of the petition and is entitled to a divorce.

The divorce takes effect 1 month from the issuing of the decree nisi, becoming a ‘decree absolute’ – an older term for what we call a ‘divorce order’ today.

If you have any questions about the legal processes involved in your marriage, re-marriage or divorce, or for any other family law inquiries, give us a call on 02 8917 8700.

This week Australian media has widely reported that journalists and crew members from the 60 Minutes television program have been detained in Beirut, Lebanon, after covering a story regarding one parent who took his children overseas without the mother’s permission. Unfortunately this is an all too common problem, whether it be in relation to parents, usually ex-partners, taking children overseas, interstate or locally without the other’s permission. This would undoubtedly be a traumatic and stressful situation for any parent so it is important to seek urgent legal advice should this ever happen to you.

What happens if an ex-partner takes your children from you without your permission?

The first and most important thing you can do when you realise your former partner has taken your children without permission is to attempt to contact them and try and reach an agreement to have the children returned. If attempts at contact and reaching an agreement fail, it is imperative you seek urgent legal advice. It is likely that your family lawyer will advise that you apply to the court urgently for a Parenting Order and Recovery Order that will determine parents’ responsibilities in relation to making decisions for and about their children, and allow the police to return your children to you.

Where you already have a Court Order

In situations where you and your partner have separated and you have a Court Order that states the children live with you, if the ex-partner does not return the children to you, it is imperative that should attempts at contacting them fail, you seek urgent legal advice. This will usually result in your family lawyer applying to the Court for a Recovery Order which allows the police to return the children.

What about when you think your ex-partner will take the children overseas?

Your family lawyer can advise that you contact the Family Court to have the children’s names added to the Airport Watch List and advise the Australian Federal Police of any Orders made in relation to this. This will mean the Australian Federal Police are aware of the situation and can prevent the children from going overseas without your permission.

It is also important to note that under sections 65Y and 65Z of the Family Law Act, it is illegal for a parent to take a child overseas where there are court proceedings in relation to Parenting Orders or relating to the children generally.

If the children have already been taken overseas

 In this situation it is important to look at the Hague Convention on Civil Aspects of International Child Abduction 1980. If the country the children have been taken to is a party to The Hague Convention, then Australia and the country in question can more easily negotiate to ensure the return of the children. If the country the children have been taken to is not a party to the Convention, your family lawyer can utilise several legal options within the Attorney-General’s Department.

Freedman & Gopalan has expertise in this area, and has recently been engaged where a father had abducted his son and taken him to India without the mother's consent. The mother engaged Freedman & Gopalan, and we were successful in obtaining Orders from the Family Court of Australia. We then used our services and contacts in order to obtain Orders in India, a non-Hague Convention Member, and took appropriate steps to recover the child.

If your children have been taken from you without your permission or if you have any questions in relation to Parenting, Recovery or Court Orders for your family law matter, contact our solicitors on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

Ordinary Costs v Indemnity Costs - Know the Difference

If you ever commence legal proceedings, particularly in relation to a commercial matter, you may begin to hear the phrases ‘ordinary costs’ and ‘indemnity costs’ more and more as your case progresses, especially if the matter goes to Court. There is an important distinction between these two phrases and thus, it is important that you know the difference. An order of either ‘ordinary’ or ‘indemnity’ costs  is an order of which party pays costs when the matter is heard and finalised in Court.

Meaning of Ordinary Costs and Indemnity Costs

‘Ordinary Costs’ means that where there is doubt as to the reasonableness of costs (costs are defined as fees, disbursements and other expenses related to the court proceedings), the matter is to be resolved in favour of the successful party. In contrast, indemnity costs means any doubt as to the reasonableness of the costs incurred will be resolved in favour of the paying party.

Why do two ‘types’ of costs exist?

Ordinary costs arise in standard proceedings to ensure costs remain proportionate to the matter and the costs to the paying party are not unduly high or unreasonable. However where there is something sufficiently unusual about the case, such as in cases of fraud, or where one party has unnecessarily prolonged proceedings, indemnity costs exist to ensure the more innocent party is compensated for any costs that are deemed ‘unreasonable’.

When can Indemnity Costs be ordered?

There is no absolute rule or test to determine when indemnity costs can be ordered. In any case, the courts have established several instances where indemnity costs are generally ordered. These include:

The court’s discretion to order either ordinary or indemnity costs where appropriate is an important way of ensuring costs in court proceedings remain fair and proportionate, and that in situations where one party detriments the other such as in the above instances, they must compensate the more innocent party.

For more information on indemnity and ordinary costs, the types of costs associated with litigation or to discuss your commercial law matter, give us a call on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

 

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