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.
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.
The leaves are starting to fall off our trees, the chill in the air is becoming more noticeable and the Budget for 2016 has been released.
Whether you are a university student striving to move out of home or a parent of three children working a full time job, the Budget concerns you. Whilst a lot of the promises delivered by Treasurer Scott Morrison depend on Turnbull’s re-election, it is evident that you cannot please everybody.
Here is how the 2016 Budget is going to affect you.
Schools and Child Care
For the new parents of 2016, it is important to note the changes to the Commonwealth Paid Parental Leave Scheme. This Scheme has enabled new parents entitlements to financial support for up to 18 weeks to help them take time off work to care for a newborn or a recently adopted child. This will be affected by the Budget as this Scheme will be reduced where a claimant is also entitled to employer provided paid maternity leave.
Further, don’t think you can count on the Government’s proposed plans for a Child Care Subsidy just yet. After some setbacks concerning the Senate, the Scheme will be deferred a year until it can be passed through the Senate. However, the existing Child Care Benefit and Rebate will keep its seat warm in the meantime.
On a positive note, both public and private schools will see a rise in Government funding, on the condition that schools invest and lift their numeracy and literacy standards. Additionally, the Abbott-driven School Chaplaincy Programme will expire in 2017 – 2018 and will not be renewed.
Youth and Students
Instead of continuing to push higher education reforms, the Coalition has given university students a breather but the inevitability of changes to the system are impending which could see an increase in student rallies down the track. However, as a bonus for students, the Government will no longer need students to make a separate application for Health Care Cards, but issue them to eligible students.
One of the most radical and controversial changes made in the 2016 Budget has been the Youth Employment Package. This scheme will invest $751.7 million dollars into developing youth employability skills by paying businesses to hire and train a young person as an intern which in turn, will incentivise businesses to hire them as employees.
The Working Australian
The Government has brought us good news in regards to superannuation.First of all, the Government has provided us with a clear definition of what superannuation entails in order to prevent people thinking it can be used to pay off their mortgage or student loans. In addition to this, for those who are earning less than $37, 000, there is a proposed tax discount which has the intention of cutting down your super tax bill
Affecting all
Whilst there continues to be a freeze on Medicare Benefits Schedule fees, the Government has introduced, finally, a Children and Adult Public Dental Scheme which will attempt to treat more people with less money than was originally put in place by the Labor Government.
What are your thoughts on the 2016 Budget? Has the Government covered the appropriate areas? Some, including The Project’s Carrie Bickmore, have argued that the Government has not listened to the Australian Public and tackled the social and communal needs that impinge on Australian social well-being. So far, the above are only promises and estimations. So far, we are going to need more than a budgetary outline to determine who should next lead our country.
Have any thoughts you want to share with us about the budget? Send us an email!
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:
- A notice of intention to marry, signed by both parties in the presence of an authorised celebrant, Justice of the Peace or solicitor;
- Passports or birth certificates of both parties; and
- Statutory declarations stating the parties’ current marital status
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:
- A final divorce order (previously called a decree absolute); or
- the former spouse’s death certificate (s 42(10)).
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:
- Hopeless cases (cases that continue despite no reasonable chances of success)
- Cases where there has been an abuse of process
- Cases where there is unreasonable conduct such as fraud or perjury
- Cases involving parties who unreasonably fail to accept offers of settlement
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.
When a couple separates, the issue of dividing assets – whether this be monetary, property or goods – is likely to cause stress for both parties at an already tumultuous time. As you and your partner’s relationship breaks down, it is possible there will be some suspicion at each other’s disclosure of assets, with the fear that the other party may be ‘hiding’ assets that are available to be distributed between the pair. Because of these concerns, it is vital that you are aware of the obligations you and your former partner will face in disclosing assets available for distribution to each other and the Courts. The law surrounding the duty of disclosure is complex; for this reason, it is highly recommended you seek the advice of a Family Lawyer to guide you through this important area of law.
The Duty of Disclosure
The ‘duty of disclosure’ in relation to asset distribution means that at law, you have an obligation to provide information about your finances, financial position and copies of all associated documents, to your former partner and the Court. The Family Court Rules 2004 state that you must give ‘full and frank’ disclosure of all sources of income, earnings, interest, property and any other relevant information, whether these be in both your names or just yours. You must also disclose any and all information about any disposal of property that has occurred in the 12 months prior to the separation.
How to Disclose
Your Family Lawyer will discuss the ways in which the Family Court accepts documents pertaining to the disclosure of assets.
Consequences of Not Disclosing Assets
If you do fail to disclose financial or property information in a manner the Court views as ‘full and frank’, they may use their discretion to order Costs against you and find you in contempt of Court, resulting in possible fines or imprisonment; among many other consequences.
Due to the serious consequences of not appropriately disclosing financial and property information, it is imperative that you seek legal advice if you are separated from your partner or thinking about separating.
If you have any questions about your disclosure obligations, separating from your partner or any other family law issue, give us a call on 02 8917 8700 or alternatively fill out the enquiry box detailing your issue and we will get back to you ASAP.
Receiving an inheritance from a family member, friend or other loved one after they pass away is an experience common to many people. Unfortunately, inheritances can also result in disputes when one or more parties question what they or others have, or have not received. When one receives an inheritance before or after they separate from a spouse, the situation can become even more complicated. In this situation, it is best to consult a Family Lawyer to ensure your rights under the law are protected.
If you and your former spouse are involved in a property settlement, how will an inheritance you received during your relationship be taken into account? This complex scenario will rely on several different elements, such as whether the inheritance was received during the relationship or after the relationship ended; the monetary value of the inheritance; and whether the former spouse can argue that they made a contribution to the inheritance. In this situation, it is simplest if the inheritance was received after your separation from your former spouse. In this scenario, it is more likely you could successfully argue that the inheritance should not be able to be claimed by your former spouse. However, this may have a negative flow-on effect in regards to what you may be entitled to when it comes to the property settlement of you and your former spouse’s combined assets.
The situation becomes more complicated when the inheritance was received while you and the other party were still in a relationship. It is generally more likely that the inheritance will be treated as a “joint asset” rather than as yours alone. In this situation, the party who received the inheritance may receive a positive “contribution adjustment” when it comes to negotiating the property settlement between parties. However, this may not necessarily be the amount that was actually given as inheritance. If this happens, it is important to discuss this with a Family Lawyer who can advise you on your best course of action.
Consulting a Family Lawyer becomes especially important in cases where when you have children, if you and your former spouse lived together before separating, as well as many other factors that can affect whether an inheritance is viewed as a joint asset to be divided between parties. This is because eachof these factors could bring forth further legal rights or obligations. Additionally, whether either of you had a Binding Financial Agreement or Pre-Nuptial Agreement in place will be important in determining the legal outcome of these matters.
As each family law matter is distinctive, it is important to get legal advice specific to your personal set of circumstances.
If you have any questions about your inheritance, family law matter or want to create a Binding Financial Agreement, give us a call on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.