Divorce and Separation free advice blog

13 Jul 2011 - Children Divorce Legal Aid Property 

This website is for people who are facing Divorce or separation and want to find out as much as they can to help them through. My firm is Journey Family Lawyers, who are specialist Family and Divorce Lawyers in Queensland. They have their own website at www.journeyfamilylawyers.com.au.  This is a divorce blog where you can comment and ask questions about your marriage property settlement or children custody problems.

I hope you can find the answers to your divorce issues here, if not please email us at enquiries@journeyfamilylawyers.com.au or comment on the blog  or phone us on (07) 3832 5999 and we will get back to you so you can know where you  stand. Don’t forget we offer free 10 minute consultations by phone too, or one hour for $143.00. I am still slogging away on my book, Divorce a new users guide, and will post bits of it from time to time.  The good news is that the book should be ready for publication mid 2013, if I can keep up the pace of writing, that is!

Regards Lynette Galvin

203 Comments

203 responses to “Divorce and Separation free advice blog”

  1. Darren Bisson says:

    Hi,
    Just wanting to check. We have s court order for my step children between their mum (my wife) and their dad. It deals mainly with visitation and costs associated with visits. Dad lives in Townsville we live in Newcastle. Children are 16(girl) and 12(boy). They both no longer want to go back to their dads due to the way he physically disciplines the 12 year old who is diagnosed ADHD. Is there an age they reach where they can make their own choice not to go?
    Secondly in the court order it states he is to pay all costs associated with flights. We’ve had an agreement though where we pay half, but he picks the most expensive flights as a result and claims through CSA. Can we start enforcing the court order or because we have had an agreement contravening the court order we don’t have much of a leg to stand on?

    Cheers

    Darren

    • Journey Family Lawyers says:

      Hi Darren,

      There’s a few different things in your email so let’s go one by one…

      Children’s wishes and feelings are taken into account by the Court but the weight given to them varies depending on factors such as their age, maturity and reasons for their wishes and feelings. There is no age at which the children choose their own arrangements as such however it is recognised that teenagers are managed differently to younger children and generally there is more latitude for them.

      However, physical chastisement can range from inappropriate to abuse and what you’ve raised is potentially a safety issue as much as it is about their wishes and feelings. If it is a major concern you should talk to child safety or police. We generally recommend you be proactive if there are concerns because if you simply refuse to return the children then you will be in breach of court orders, you will probably find yourself on the receiving end of a recovery application and be ordered to return the children. Retaining children in breach of a court order is only justifiable in serious circumstances and if it is so serious they cannot return then it should be reported to the authorities. If it is not then mediation or an application to court to attempt to vary the Order should be considered. We would really need to speak with you in detail before recommending which of these options you should pursue.

      Costs of the flight – if you have reached an agreement to vary an Order then that’s normally fine but if there’s no agreement to the contrary then the Order should be complied with in default. You can indicate you no longer agree to the variation to the Order. It must therefore be complied with. If it is a final order then that’s the end of the matter, he doesn’t have a leg to stand on if he refuses to pay unless he can convince a court to vary the Order (which could be very difficult).

  2. Carolyn says:

    My ex and I have been separated for 7 years, but I can’t afford a divorce and he refuses to pay for it but he is about to take his third emergency release of 9,500 and I’m wondering if I’m entitled to any of that money as we were married for the whole time he was earning money and paying super, can I sue him for it once were divorced?

    • Journey Family Lawyers says:

      Hi Carolyn,

      Your divorce and property matters are separate in that you can apply for property settlement before your divorce. The divorce just starts a time limit running. The court uses a 4 stage process to determine what the property pool is and what each party should receive from it. The property pool would normally include any superannuation that either of you have, all of your assets and liabilities and all of his assets and liabilities however after 7 years a lot may have happened so we would need to talk to you in depth to see how the court might treat that now. We normally suggest you try and settle the matter our of court first rather than sue him in court as it will be quicker and cheaper for you to reach a settlement.

      If you are struggling to pay the filing fee for the divorce, you should look into applying for a fee reduction based on hardship. Information is available on the link below;

      http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/reports-and-publications/publications/family-law/guidelines-for-reduced-fee-divorce-and-decree-of-nullity-application

  3. Marg says:

    My husband and I separated after approximately 8 years. Aged 61 and 56 respectively. He was on a considerable amount of income at the time of cohab $200,000 pa and currently. I have worked, on a lower income of course but also received child support up until 2013 and was diagnosed with breast cancer in 2014 although my health is stable now. It has only come through the property settlement process that I am aware of his assets but he has limited his disclosure and there remains so many unanswered questions including why he rolled over his super fund just prior to our first mediation and has yet to disclose movement within his asset line account and margin loan since cohab and also why his super has only increased conservatively. After we were married I sold my home whilst he rented his and we purchased a $710000 home as tenants in common in equal shares. I paid $280000 towards the home and with him working 12-13 hour days, was responsible for the daily upkeep of the 364 m2 home. Current disclosure shows He was frivolous with his spending, considerable monetary gifts to his children and accounts show considerable cash drawings whilst all bills etc were paid through bank accounts. He is declaring only one share fund which was commenced in 2014 following the sale of his home i.e. No investments since he cashed in his “only” investment in 2010 when we purchased home.
    His currrent offer leaves me with depreciation from cohab and him with considerable asset growth.
    With so much undisclosure and not even his broker supplying financial statements, how can I prove he has hidden worth and receive a fair settlement?

    • Journey Family Lawyers says:

      Hi Marg,

      There is an obligation on each party to provide disclosure but if you think there is something not being provided then there are steps we can take, such as title deed searches, issuing a Superannuation Information Form to his fund to obtain the value of his superannuation, or starting court proceedings and issuing a subpoena for his bank accounts or investment accounts. If the spending happened during the relationship then that’s something that was just part of your relationship with him, up the point that the cash withdrawals were so large that it could not just be spent on lifestyle it could have been directed to another asset or bank account. People roll over their super funds for a range of financial and practical reasons, as long as you know where the funds are now that’s the important part. A slow increase in superannuation is relatively simple as this may be the result of a poor performing fund or perhaps a withdrawal has been made, the simplest way to look at it is to request or subpoena the account statements and any paperwork relating to withdrawals. Be careful about what you are chasing though, it’s best to be clear and direct in your searches and make sure your approach is evidence-based (ie you ‘follow the paper trail’).

  4. Joe says:

    Hi, I have now been seperated for 3 years and have 2 boys. My ex and I are still on good terms and have agreed for a 50/50 split. She has proposed the following settlement. Would love some advice if possible, as I’m not too sure about it all. I am wondering if this is a fair assesment?

    Below is a breakdown of a settlement that takes into account the house being for the boys a their main place of residence and the superannuation.
    Home Loan value as at 1/1/2016 when I took over payment of mortgage $278,147
    Equity as at 1/1/2016 $130,000
    Based on the current split in time the boys spend with us the divide is 73% me and 27% with you.

    Amanda share = $95,000
    Joe share = $35,000

    Based on our super accounts this is a 50/50 split
    Amanda super = approx $30,000
    Joe super = news super $122,000 / Russell Invest $120,000
    Split 50/50
    Amanda = $15,000
    Joe = $121,000
    Personal loans is $12,000
    Based on the division of assets
    Amanda Joe
    House $95,000 $35,000
    Super (AS) $15,000 $15,000
    Super (JS) $121,000 $121,000
    Pers Loan – $12,000 +$12,000

    Total $219,000 $183,000

    As the house is important for the boys and I rather than the superannuation I would like to propose that of the
    $121,000 I would prefer to have the house equity you have taken off the super. Seeing the house still has the business loan secured against it the transfer to me would take you off as guarantor of the loan.

    The division of assets would be:
    House $130,000 $0
    Super (A) $30,000 $0
    Super (J) $59,000 $183,000
    Total $219,000 $183,000

    Cheers
    Joe

    • Journey Family Lawyers says:

      Hi Joe,

      We would normally sit down with a client and take detailed instructions so we could go through the 4 step process used by the court in property settlement in order to give personalised advice about whether a 50% / 50% split was appropriate or fair in your situation, or if not then what the court would be likely to find and why.

      There are a few matters we should point out from your post;

      – the % you receive is calculated based on the net of the current value of all assets and liabilities held by either of you and it is based on today’s value, not in 2016.

      – you have referred to a business loan but not the value of the business, this will need to be included in the pool as well as all other assets such as cars, credit cards, funds in banks and so one.

      – If one parent has primary care of the children then they will receive more as a % of the entire net pool, not simply a higher proportion of one asset.

      It might help you to talk to a lawyer about how the 4 steps process will be applied to you, it will assist you enormously to see how this works in practice.

  5. Jamie says:

    Had settlement yesterday x wife got 57 percentage I got 43 percent , an x got half my super , does this mean once house is sold I get more if the money of property cause I gave her half my super thx if anyone knows

    • Journey Family Lawyers says:

      Hi Jamie,

      Your property settlement should set out what happens to every asset or liability that each of you has, so it should say what you receive from the sale of the house either as a fixed sum or a % of the sale proceeds. The percentages relate to net figures of items in the property pool, so the value of assets minus debts. If you are unsure about what you are receiving then we suggest obtaining some legal advice about the order or agreement you have.

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