If both parties have reached an agreement in relation to parenting and/or property, Consent Orders can be entered into.
Benefits of formalising an agreement by way of Consent Orders are: -
- Consent Orders is a legally enforceable agreement that is approved by a Court. It also has the same legal effect if an Order was made by a judicial offer after a Court hearing/ trial. Serious consequences can arise should the Orders not be complied with and are breached.
- Once Orders have been made, they are final. It is difficult to vary an Order once it has been made.
- In respect of property matters, you may also be exempt from payment of stamp duty if the transfer of property (e.g. your matrimonial home) is transferred to a party or child of the relationship.
Time Limitations
Whilst there are no time limits when applying for an Application for Consent Orders in relation to Parenting Orders, there are time limits when applying for an Application seeking Property Orders.
- If your Divorce has been granted, an Application for Consent Orders must be filed within 12 months of that date.
- If you and your partner were in a de-facto relationship, then you will have 2 years to file an Application for Consent Orders.
If you are looking to finalise your family law dispute by way of Consent Orders, it is important to obtain independent legal advice to understand your rights and entitlements. If you wish to arrange an appointment, contact our team on 02 8917 8700.
It is our very great pleasure to announce that Freedman & Gopalan Solicitors has once again been short-listed for the Women in Law Awards 2019!
We are a finalist category of:
The Women in Law Awards is dedicated to recognising and celebrating the outstanding women shaping and influencing the legal industry. The finalist list includes over 200 high-achieving legal professionals across Australia in 31 different categories. The winners will be announced on Friday, 22 November 2019.
The importance of women in law is a cause very close to our heart at Freedman & Gopalan Solicitors. The legal profession is improved and driven forward by the presence and work of women. Women bring the qualities of patience, empathy and positivity to their work and to interactions with clients and can often face very different hurdles to men in the workforce. This is why the Women in Law Awards are an important opportunity to recognise the contribution of women to the legal profession. We are humbled to be recognised on the national stage and proud to be part of the Women in Law Awards.
We take this opportunity to THANK our loyal clientele and most dedicated Staff and team members, without whom we are unable to continue to provide our most efficient and efficient legal services. Our special THANKS and appreciation goes to OUR AMAZING TEAM comprising:
Ms Mittu Gopalan
Mr Nikita Sofronov
Ms Maneesha Zacaharias
Ms Christie Murphy
Ms Jasmin Talj
Ms Nina Ho
Ms Penelope Smith
Ms Angelique Gebrayel
Mr Nitish Joshy
Ms Mrithika Shankarla and
Mr Timothy Mathew
We are mighty thrilled to start the week with this amazing news!!!
Contrary to popular belief, most Australians actually do not need to go to the Family Court of Australia to make arrangements for children, parenting or property once the relationship/ marriage has dissipated.
Whilst a Divorce Order must be obtained through the Court, there is no necessary requirement for parenting or financial/ property arrangements to be decided by the Court. The process of going to Court to resolve any disputes you may have with your ex-partner is a very expensive, cumbersome and stressful situation. Even so, you may also not get the result you want.
Nevertheless, it is essential that if you have separated from your partner, it is essential that all parties come to an agreement with regards to your children and/ or property.
Did you know there are many different options separating families can take besides going to Court? Here are some of them:
Parenting arrangements without going to Court
In order to ensure the needs and best interests of the child is met, it is essential to come to an agreement with you and your ex- partner. Parenting agreements can come in the form of:
- An informal parenting agreement or a written parenting plan
This is a written record of an agreement that is signed and dated between you and your ex-partner with regards to how the care of the children will be undertaken. However, it is important to note this is not a legally enforcement document in Court.
- Consent Orders from the Court
If you and your ex-partner continue to disagree about the parenting arrangements, you may want to consider entering into consent orders which is enforceable by a formal Court or the Police (if for example, your child/ children are not returned or kidnapped)
Property arrangements without going to Court
Even if you believe you and your ex-partner can come to an agreement between yourselves to divide your property without going to Court, it is essential that you seek legal advice to ensure that your interests are well protected.
- Informal agreement
Whilst an informal parenting agreement can be entered between you and your ex-partner, they are not enforceable by the Court which can be an issue should a disagreement arises in the future. Therefore, it may make more sense to make a financial agreement or have Consent Orders entered into between the parties.
- Binding Financial agreement (BFA)
This is a written document which outlines how your property will be split with your ex-partner. Whilst a financial agreement does not need to be approved by the Court, there are strict guidelines. In order to make a financial agreement, you must also obtain legal advice.
- Consent Orders
This is a written agreement which is approved and enforceable by the Court. When a Consent Order is made, it also has the same effect as a Court Order made after a hearing. However, it is a much more time and cost-efficient method. We would highly recommend for you to seek legal advice to ensure your best interests are protected.
Please do not hesitate to contact Freedman & Gopalan Solicitors on (02) 8917 8700 or by email to reception@freedmangopalan.com.au to discuss your legal avenues!
In light of the Mother’s Day festivities last week, it is important to remember that 1 in 2 Australian mothers having experienced pregnancy-related discrimination in the workplace and to consider whether your rights as a new parent are being met.
What is parental leave and when can you take it?
Parental leave gives you the right to return to your old job and your absence can be paid or unpaid depending on your entitlements.
You can ask for parental leave when you give birth, your spouse or de facto partner gives birth or when you adopt a child below the age of 16. If you are adopting a child, you are also allowed up to 2 days of unpaid leave before the adoption to attend the required examinations.
To qualify for unpaid parental leave, you must have worked for your employer for at least a year before the date of birth, adoption or when the leave starts, and you should be responsible for the care of the child when it arrives.
How can you get paid parental leave?
As an employee, you can get both Parental Leave Pay from the Australian Government and paid parental leave from your employer. This does not affect your entitlement to unpaid parental leave.
You qualify for the government scheme and hence, can get up to 4 and a half months of paid leave at the national minimum wage if:
- You earned less than $150 000 in the last financial year,
- Are on leave or unemployed while receiving parental leave pay,
- Have done enough work in the 13 months before to pass the work test and
- Are the primary carer for the child
Your employer can provide paid parental leave in agreements, contracts and workplace policies and its details depend on the specific agreement, contract and policy.
Pregnant Employee Entitlements
Pregnant employees have entitlements which include:
- Special Maternity Leave: If you have an illness due to pregnancy or if your pregnancy has ended after 3 months due to a miscarriage, termination or stillbirth you can take this leave until you recover from the illness or you feel able to work again.
- Safe job: If your job is unsafe for you due to your pregnancy, you are entitled to move to a safe job which provides you with the same wage, hours and benefits even if you are not eligible for unpaid parental leave
- Safe Job Leave: If your place of employment has no safe jobs, you are entitled to a paid safe job leave if you are entitled to unpaid parental leave.
Your employer may need to see a medical certificate to prove illness or necessity for a safe job.
Discrimination
Ultimately, you cannot be discriminated for being pregnant through being fired, demoted or treated in a different way. If you feel that this is your situation, it is crucial to remember that you should contact the Fair Work Commission within 21 days to protect your rights.
If you have any queries in relation to the issues raised in this article, please do not hesitate to contact us on (02) 8999 9837, or fill out the enquiry box and we will get back to you ASAP.
Client legal privilege, also called legal professional privilege, and known as attorney client privilege in the USA, protects confidential communications between a lawyer and client. This means that the law and the courts cannot require your communications or documents to be disclosed, and your lawyer is under an obligation to keep that information confidential, like a doctor.
What is it
There are three requirements to client legal privilege
- There is a professional relationship between a lawyer and the client: once you have signed a Cost Agreement or retainer there is a professional relationship.
- There is confidential communications, or documents prepared by the lawyer or client, and even third parties in some instances.
- The communication or document is created for the dominant purpose of legal advice, or with reference to litigation
The privilege belongs to the client, not the lawyer, which is why in NSW it is now called ‘client legal privilege’ instead of legal professional privilege.
How can you lose it?
A client can waive client legal privilege by knowingly and voluntarily disclosing the communication or document. However, there are also instances where you may lose privilege in court proceedings, for example if the communication or document is prepared in furtherance of a fraud.
If the privileged document or communication is accidentally disclosed, it will not be taken to be a 'knowing and voluntary waiver' of privilege. Further, if the mistake is ‘obvious’ and should have been noticed by the party receiving the document or communication, privilege may not be lost.
Why do we have it
Privilege protects a client’s privacy and promotes access to justice. The reason for this privilege is to empower clients to provide full instructions without fear of the information being disclosed. This results in lawyers being able to provide considered and complete legal advice and the most effective representation. There is a public interest against disclosure of information and for privilege, and it ensures proper, accurate conduct of litigation with lawyers and clients who are honest and open with each other.
Client legal privilege may also be considered a human right. In 1983, the High Court said that privilege is an important element in the protection of the privacy and liberty of the individual (Baker v Campbell (1983) 153 CLR 52).
What does it mean for you
With the protection of client legal privilege, it is important to be open with your legal representation. They cannot disclose the information that you provide. Full disclosure from you to your lawyer is important for you to receive the best legal advice and representation.
Should you have any queries in relation to the above article, please do not hesitate to contact Freedman & Gopalan Solicitors by calling us on 02 8999 9837 or by filling out the enquiry form.
Have you been left out of the ‘Will’ of a loved one, or do you feel as if the gift left to you is inadequate? Unfortunately, this is a relatively common story.
The law has responded to this by allowing eligible individuals to make a Family Provision Claim under the Succession Act 2006 (NSW). The Act defines an eligible person to include, a spouse of the deceased person, a de facto partner, a child of the deceased, a former spouse, the deceased persons grandchild, or a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death. For more information regarding who can make a Family Provision Claim, click here to visit our previous article.
Despite children of the deceased persons being specifically included under the statute, adult children still face difficulty when making a claim.
Take, for example, the recent case of Olsen v Olsen [2019]. Here, a 61-year-old adult son made a claim for provision from the estate of his late Father, after his Father failed to include him in his Will. At the end of his life, Olsen’s Father had left his entire estate to his second wife, and their three children. Unfortunately, no provision was made for the plaintiff. Mr Olsen claimed that he was an entitled person under the statute and provisions should therefore be made for him from his Father’s estate. The Court rejected Mr Olsen’s claim, ultimately finding that Mr Olsen was ‘able to maintain and support himself’ and thus, intervention by the Court was not warranted.
There is thus the prevailing question, when can an individual make a claim for provision? According to section 59 of the Succession Act 2006 (NSW), the Court may make a family provision order in favour of an eligible person, where the Court deems it necessary for that person’s proper maintenance, education or advancement in life or if the court finds that person to be have been an dependant or if the deceased led that person to believe that he or she would be left with a portion of the deceased’s estate.
If you know someone having a possible right to an estate or hasn’t been included in someone’s will, please do not hesitate to contact Freedman and Gopalan on 8917 8700 or by filling out the enquiry box.
Has someone failed to pay money that is owed to you?
Here is what you could do;
- You attempt to communicate with the debtor in order to understand why the debt has not been paid.
- You send an email letting the debtor know that you would initiate legal proceedings.
- Even after giving the debtor sufficient time, the debtor has not paid the money owed to you then you proceed to contact a law firm and instruct them to proceed further
- The law firm will then issue a “Letter of Demand” advising the debtor that legal proceedings will commence if the debt is not paid within a given time limit.
- If the debt is not further paid, then, we need to determine the jurisdiction in which you need to commence proceedings. The Local Court determines matters where the money owed is not more than $100,000. The Local Court has two divisions,
- The Small Claims Division which hears claims upto 10,000;
- The General Division which hears claims over $10,000 only upto $100,000.
- The District Court can hear matters up to $750,000 and the Supreme Court determines debt recovery matter of higher amounts. Each court has their own specific procedures and court rules that apply.
- To commence legal proceedings, a Statement of Claim is to be filed and served on the debtor.
- The debtor has to file a Defence within 28 days of the date of service of Statement of Claim.
- In the event a Defence is not filed by the Debtor within 28 days, a ‘Default Judgement’ can be entered against the debtor.
- If a Defence is filed then the matter may be listed for a Pre-trial review or Callover in Local court and an attempt is made to resolve the matter between parties, before the matter is listed for a hearing.
- If the matter is still not resolved and the matter is listed for Hearing a timetable will be set for the filing of evidence, affidavits, expert reports etc.
- And then a Judgement will be made by an Assesor or an Arbitrator or a Judge after scrutiny of the Affidavits, evidences filed, expert reports etc.
- Unfortunately, in some circumstances even when Judgment has been obtained the Defendant may refuse to pay.
- You should send the Judgment Debtor an Examination Notice Form to complete and provide you the same, along with any documents to be able to ascertain the debtor’s ability to pay. Then you may be able to get the sheriff to seize and sell.
- If they fail to return the completed form and documents, you can have the matter set down for an Examination Hearing by filing and serving an Examination Order.
- If the Judgment Debtor fails to attend, then a warrant can be issued for their arrest.
- You then also have the option to commence Bankruptcy or Winding up proceedings depending on the size of your debt amount and who your debtor is.
If Freedman and Gopalan can be of any assistance, please do not hesitate to contact us on 02 8917 8700, or by filling out the enquiry form on this page.
What is a De Facto Relationship?
According to the Family Law Act 1975, a de facto relationship exists when two parties have been living together on a genuine domestic basis. A relationship is not a de facto relationship if, however, any of the parties is legally married to one another or if they are related by family.
Binding Financial Agreement
For individuals considering entering a serious de facto relationship, it is important to understand the implications of such an arrangement. It may be worthwhile to discuss any financial or relevant issues with your partner.
We would also highly recommend for you to consider arranging a formal Binding Financial Agreement (commonly known as a ‘pre-nup’). This will safeguard your assets in the event that the relationship breakdowns, and you will need to organise the assets accordingly. Our team can assist you in deciding whether a pre-nup is right for you and can help you prepare the documentation.
Property Settlement and Maintenance after the Relationship has broken down
In order to make a claim for property settlement or maintenance to be made with respect to a de facto relationship, the court considers the following: -
- That the period of the de facto relationship is at least 2 years;
- That there is a child of the de facto relationship;
- That the relationship is or was registered under a prescribed law of a State or Territory.
- That significant contributions were being made by one party and the failure to make an order would result in a serious injustice.
In the event that your de facto relationship breaks down, it is imperative that you understand your entitlements from the relationship.
Please do not hesitate to contact us to discuss your rights on 02 8917 8700 or fill out the enquiry box, and we will get back to you ASAP.
Separation is often a ‘catastrophic loss’ to either one or both parties. Adjusting to separation presents complications on many levels, such as self-esteem issues, financial security, friendships, loss of a family unit and the transition to living alone.
One party may be ‘blindsided’ by the separation when they find their partner/Wife/Husband has left a note on the kitchen bench stating that they have had enough of the marriage/relationship, left the family home to their parents and have also taken the kids.
Even parties who agree to amicably separate find it difficult to adjust to their new surroundings/environment, and emotions are fuelled when a party changes their position regarding the division of property despite both having agreed for ‘one to keep the house and pay the other out’.
Whilst many cases are settled outside of Court, stress and anxiety increases exponentially when parties are required to go to Court, especially matters involving children.
Emotions may fluctuate on a day-to-day basis or week-to-week basis. The thought of the family law proceedings weighing on one’s mind whilst they attempt to work or attend social outings affects the atmosphere and attitude of a person.
In the event that you do find yourself in this ‘pressure cooker’ environment, avoid substance abuse and reverting to alcohol to ‘ease’ the tension. Remember to focus on your psychological, emotional and physical well-being by seeking professional help with mental health professionals and doing physical exercise.
Whilst family lawyers make every attempt to make the separation process as smooth as a transition as possible and provide support in times of need, they are not trained counsellors/psychiatrists.
It is important to remember that stress is normal, but if you feel stressed and anxious all of the time, this may lead to depression and other mental health issues if not addressed.
Should this be the case, there a number of organisations that offer support and advice, including but not limited to:
Family Relationship Advice Line
If you have any queries in relation to the issues raised in this article, please do not hesitate to contact us on (02) 8999 9837, or fill out the enquiry box and we will get back to you ASAP.