family law

Application for Divorce – We can help you

You and your spouse may be able to apply for a divorce (dissolution of marriage) if you have been separated for 12 months and more, there is no reasonable likelihood of resuming your marriage and if you satisfy the jurisdictional requirements for the Federal Circuit Court of Australia to make a divorce order.

 

We charge a fixed fee for the Application according to Part 3 of the Family Law Rules 2004 (Family Court Scale of costs)(excluding disbursements) and not on hourly rates! This includes drafting the Application along with any accompanying Affidavits, arranging for a process server to serve your spouse with the Application (if necessary), organising the filing service documents at the Court and attending at Court for the divorce hearing (if necessary). If your marriage certificate is not in English we can organise for a translation too.

 

We had a client who paid $200 to a company (not a law firm) they found on the internet to assist her with completing the paperwork, only to accidentally pay for the wrong Application form. She was not able to get her money back. She was also not informed that she had to then make her own arrangements to serve the Application on her spouse which was an extra charge on top of the $200. In the end she decided to come to us to assist her with the documents and to serve her spouse who was evading service. We got her documents in order and attended at the divorce hearing with her and her divorce order was granted.

Save yourself the hassle of drafting the Application on your own and arranging for service of the documents all by yourself and let us handle the paperwork. Contact us today.

 

This article provides information that is general in nature and is not a substitute for legal advice.

Family Law Binding Financial Agreements or Consent Orders: A little now or a LOT later.

We had a client who separated from his wife in 2005. In order to save money, they hand-drafted and signed an agreement between themselves as to how the assets and liabilities of the marriage, including superannuation, were to be divided. The assets and liabilities of the marriage were then divided in accordance with the agreement. At the time both parties agreed that the outcome was fair and reasonable. They did not file for divorce.

In 2014, the wife ran out of money and decided to make an application at the Federal Circuit Court seeking property orders and spousal maintenance. She argued that the agreement that she and the husband had signed was not binding and wanted the Court to make Orders as to the distribution of the parties’ assets and liabilities 9 years after separation i.e. “take a second bite of the cherry”.

 

This resulted in expensive litigation for both parties but they settled the matter just before a trial. The husband paid the wife a token sum of money to finalise the matter. The wife spent more money on lawyers than she was paid by the husband and the husband spent money on lawyers to defend the court proceedings and had to pay the wife the settlement sum. All in all, a lose-lose situation for both parties.

Had the parties obtained legal advice and paid lawyers to assist them in entering into a Binding Financial Agreement or Consent Orders in the first instance in 2005 when everything was amicable, each party would have only spent a fraction (approximately 25%) of what they had spent in litigation.

 

T’was the night before Christmas….

This is an example of parents who separated without a Parenting Agreement or Parenting Orders:

The parents agreed that the children would spend each alternate Christmas with each side of the family. One year, the paternal grandfather was gravely ill – “it’s his last Christmas” she told her former husband. With no formal written agreement in place as to the children’s time with each parent, the Mother took the Children that Christmas, even though it was agreed that the children would spend that Christmas with their Father.

Fast-forward a few years, the paternal grandfather is still alive, and still without a formal written agreement in place, the Mother decides again that she wants the children for Christmas. Again, it’s “not her turn”. She turns up at the former husband’s house on Christmas Eve and takes them away with her. Without a formal written agreement, the Father was not able to enforce the verbal agreement the parties had.

 

Lesson learnt

As time passes, circumstances change. And if there are no legal binding documents in writing to protect the arrangements with the children, your rights and the agreement between you and the other party, then you are exposing yourself to the risk of bitter, expensive and long drawn out Court proceedings later.

 

Here’s what you should do if you separate:

  1. If you have a property/spousal maintenance matter, collect as many financial documents as you can in relation to the assets and liabilities of the pool, for example, bank statements, superannuation statements, tax returns, share dividend statements, trust documents etc.
  2. Consult with a solicitor to obtain legal advice in regards to your rights and entitlements under the Family Law Act 1975. Bring the documents above to the appointment.
  3. Instruct your solicitor to negotiate with the other party after the exchange of documents has taken place (“discovery”). Prior to the issuing of any proceedings for time with the children, the parties must attend upon a registered Family Dispute Resolution Practitioner and attempt Dispute Resolution (there are certain exemptions from this requirement).
  4. If negotiations are successful and you come to an agreement with the other party, instruct your solicitor to draft a Binding Financial Agreement or an Application for Consent Orders and have both parties execute the document. For an Application for Consent Orders, the Application along with the relevant documents must be filed at the Family Court for approval of the Court.

If you know someone who has recently separated, help them out – and share this article with them, by clicking here!

Speak to us to have a written agreement in place that can protect you, your assets and your family.

 

This article provides information that is general in nature and is not a substitute for legal advice.

Will you have access to your children during the holidays?

Christmas School holidays are fast approaching. Have you finalised your parental access agreements with the other parent[s] of your children? If not, you must apply for a Parenting Order in relation to the whole, or part of the school holiday period – beginning in December, in a year [the application year] and extending to January the following year.

The application must be filed before 4.00pm on the second Friday in November of the application year.

If you fail to file an application for access to your children over the Christmas period, the court will not hear your application until after the Christmas period.

 

An agreement in writing may not be enough.

We advise people to obtain an order of the court – rather than a verbal parenting plan.

Unfortunately, email and text agreement are not enforceable.  If you do not have children’s orders with the court, the other parent can change their mind the day before Christmas – without any recrimination.

If you are no longer living with the other parent – always obtain court orders that set out the arrangements for you to spend time with your children.

 

Protect your time with your Children

We recently completed a case where the parents separated while their child was one year old. The case finished when the child was 11 years of age.

As a result of the mother’s continual breaches of the conditions of the order during the past 11 years – the court ordered the child to live with the father.

If those orders were not in place, the father would have no basis of asking the court to order the child to live with him.

The father also kept written records of all breaches [in a diary] of the orders and that evidence was crucial to his win.

If you’ve separated from the parent[s] of your children and you want to spend time with your children, we can help you negotiate parenting orders with the other party. Speak with us today.

 

This article provides information that is general in nature and is not a substitute for legal advice.

Remain Important in your children’s lives

After 30 years of experience in family law disputes, we know the types of Court Orders required between separated parents that will help ensure that the children maintain a relationship with both parents.

Remember, you want to be there when your children get married and have their own children. You’ll also want to celebrate ongoing milestones, including, birthdays, your birthday, Fathers’ Day/Mothers’ Day, Christmas etc.

 

Look into the future – 10, 20, 30 years or more. You will want to be with your family and you will want them to be with you.

 

Don’t lose sight of the long term effects

When your child becomes an adult, you’d want him/her to choose to know you and to spend time with you.

Think carefully, get advice about the types of arrangements you want for your children if you separate.

To start, speak with us and we’ll provide examples of Court Orders that work.

 

This article provides information that is general in nature and is not a substitute for legal advice.

Mediate and save

Mediate and save!

Prior to initiating family law proceedings in relation to children, parties are obliged, in accordance with the Family Law Act 1975, to make a genuine effort to attempt to resolve their dispute through mediation/family dispute resolution which is conducted by a qualified Family Dispute Resolution Practitioner (“FDRP”).

If the parties have attempted to mediate the dispute via the FDRP and are not successful in resolving the dispute, the FDRP would issue what is known as a “section 60I certificate”. This is a certificate stating that the dispute was not resolved and the reasons why.

Sometimes the Courts may grant an exemption to the requirement of the certificate if one party (or both) is able to demonstrate that family dispute resolution is not appropriate in the circumstances, for example, when there is family violence involved.

 

Avoid the wait.

Most FDRPs operate out of large practices and often have a 5 to 6 week waiting period before the first session (there are a minimum of 3 sessions in a process: one session with each party and then a final session with both parties).

There are a number of recognised FDRPs across Melbourne. You may locate one via a Google search, or we may recommend someone to you. As a referred client of Hassall’s Litigation Services, our preferred FDRPs will prioritise your mediation so you can commence your session sooner.

Our clients have found Ms. Dianne Loveday from “Bayside Mediation” to be a very effective mediator/FDRP. Dianne is our preferred FDRP and has been able to resolve complex disagreements, which mean court proceedings cost our clients less and take less time. Visit Dianne’s website here to obtain more information on mediation:

 

Mediation for property?

Although there is no requirement to mediate in regards to a property dispute before initiating a proceeding at Court, it is advisable to attempt mediation prior to issuing an application as the mediators may be able to assist parties in respect to property division. This step may also reduce legal costs and assist the parties in coming to a resolution sooner.

If the parties are able to agree on the division of property, the mediator may draft a simple agreement with the consent of the parties, and one of the parties may engage a solicitor who would assist in the preparation of formal Consent Orders in accordance with the terms of the agreement. The formal Consent Orders would then be sent to the Family Court to be filed and approved.

Mediation may be a more economical process than negotiating with the other party via the respective solicitors.

 

No mediation? This is what it could cost you

If you are unable to resolve your dispute and have no other choice but to make an application to the Court then you would incur significant ongoing legal costs and experience lengthy waiting periods in the Court system.

 

Mediation will save you money.

Before commencing a family law proceeding in respect to parenting issues, speak to a qualified FDPR. Simply complete a Google search or contact our preferred FDRP, Dianne Loveday from Bayside Mediation or speak with us for further information.