Property settlement family court

Keeping your Costs down in Family Law

We all want the best outcome we can possibly have from your Family Law journey. Whether it be by mediation or Court. In a perfect world, everyone would have equally  knowledgeable  and  conscientious lawyers to represent them. The reality, though , is that good lawyers are quite expensive, and sometimes people have to settle for lawyers who would not usually be their first choice.

 

Journey Lawyers  have found a way around that. We have many clients who have been able to use our services even though they are not the financially strong party.  We are some of the good lawyers, but having options for keeping costs down makes us affordable to more people.  Here’s three ways that we do it.

1 We get our clients to do as much as they can for themselves. Its just like labouring for the tiler, or builder. You do the stuff you can and that doesn’t need legal experience. You then get us to do the legal stuff, like Court documents,  attending Court with you, and advising you along the way.  People who do this are well able to answer the many letters that usually come about times and dates for children’s visits, for example, or answer letters asking for copies of documents. It saves the costs of us having to read the letter in the first place, then saves the costs of us having to send it to you to get instructions, and then saves you the costs of us writing back to the lawyer. That saving of about 20 minutes legal work can save you lots. Multiply that by 10 or so letters and you can see that you have made a big difference to your legal bills.

2. We offer fixed fees for just about everything we do. Just ask. We will work out what amount of work your particular case should need, and then we quote it as a fixed fee. You can budget for each step.

3. If your ex partner has control of joint funds, then we can apply to the Court for an interim distribution of funds to help you with your legal fees.  ONce we have that money for you, creating a “level playing field” so to speak, then you can still use options above to make the most of your money.

By the way, you will also get a bill every week so you can keep track of your spending.

So there you have it. this is how we keep costs down for our clients.

 

 

familylawyer - Successful Co-Parenting

Top 10 Tips for Successful Co-Parenting

The term “co-parenting” is used to describe a situation where two parents work together to raise a child following separation, divorce or changed living conditions. Both parents maintain some type of shared responsibility, equal or otherwise, as a protection of the child’s right to continue to receive care and love from both parents.

Lynette Galvin, our Accredited Family Law Specialist and Family Lawyer, has seen lots of co-parenting successes. But she’s also seen co-parenting fails, including her own. Lynette understands the world of co-parenting because she lives it everyday as a stepmother. Therefore there’s no one more qualified to assist you in your co-parenting journey. Here are Lynette’s top 10 tips for successful co-parenting.

1. Do not relay messages through your children

Try to communicate directly with your ex-partner and avoid asking your children to relay messages on your behalf. Co-parenting is about working together, and if you show your kids you cannot talk directly with your ex-partner, you’re sending the wrong message. Furthermore, asking a child to relay a message could be somewhat distressing to the other parent. Messages such as “Mum says you should be putting us to bed earlier”, put a lot of pressure on them. Protect your child’s comfort and deliver the message yourself. If you primarily communicate through text or email, remember that tone and intention can often be misconstrued.

2. Keep conversation to the point and business-like

familylawyer - Successful Co-Parenting

While it’s important that you speak directly and often to your ex-partner, it’s also important to keep things brief and matter-of-fact. This is especially so if your conversations tend to lead to an argument.

Stick to the facts and what directly impacts them or the kids. Avoid rolling your eyes, a disbelieving shake of the head, tutting, or any other gesture that can be just as hurtful as name calling. If you do slip up, apologise immediately. You’re in the business of taking care of your children, so try to speak or write to your ex-partner as if they are your business partner. That means being cordial and respectful.

3. Only speak positively

When you make a conscious decision to speak only in positive terms about your ex-partner (at least in front of the kids – we know some venting is needed), you allow your kids to grow up with feelings of respect and admiration. These feelings are crucial for their wellbeing and comfort.

The only person you have control over is yourself. Even if your ex-partner doesn’t show the same courtesy by speaking positively of you, try to take the high road. Learning to ignore a badmouthing ex-partner will result in a big family payoff.

If your ex-partner has something bad to say, be careful with your response. Explain to your kids that sometimes people say things they don’t necessarily mean when they’re upset, and then advise them that you’ll talk it over in private. Whatever you do, don’t lash back with name calling. Model the best way to respond to difficult situations with maturity and integrity and your children will respect you for it.

4. Be considerate

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Even though you are no longer together, you are allowed to care for your ex-partner. That said, you need to give your ex-partner time to understand and process the breakup. You might be feeling okay about things but how people deal with a break up of relationship varies enormously. Your ex-partner might be hurting and you should consider this and allow them time to get over you. Be polite and respectful and if they don’t want to talk at first, don’t push. Explain that you are open to communications any time they are ready and sincerely ensure that if there is any time they would like to talk that you’ll be there.

Being considerate also includes letting your ex-partner know about school functions, being flexible with schedules and asking them for their opinion. Recognise that working together means putting your kids first and that it requires sacrifice. Not easy for either of you, but necessary.

5. Back off when it’s not your time

It’s fine to want to know what your kids are up to when they are with your ex-partner and it’s also okay to try and coordinate schedules. Nevertheless, you must try to avoid intruding on your ex-partner’s time with the kids. Avoid scheduling children’s activities on the other parent’s time without clearing it with them first and don’t call or text too often. Pick your battles and don’t pull up on every small component of parenting you would have done differently. If your ex-partner took the kids to McDonalds or sent your son to a birthday party in a dirty T-shirt, is it really the end of the world?

6. Refrain from exposing your fears

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Talking to your kids about emotions and helping them to understand what effect they can have on others is important for building a healthy emotional vocabulary. Crying is a natural and normal thing to do, but it has its time and place. Following a relationship breakdown, kids are feeling scared. Seeing you cry teaches them that you care and that the breakup matters, but if you are crying everyday it can be quite frightening for your kids. Children need to know that everything is going to be alright, even when you’re not sure it is. Teach them that being upset is okay, but when you feel the waterworks coming on repeatedly, slip into the shower to hide some of your pain.

7. Think about the future

There are bound to be times when it all seems too hard. You will want to scream and shout and declare that you are “done”. But think about the future. Imagine your child’s graduation, their wedding, or the day they give birth to their first child. If you show unreasonable behaviour now, will it prevent you from standing beside each other on these special occasions? If you’d like nothing more than to make your child happy on these momentous days, take a deep breath and keep calm.

8. Leave decision-making to the parents

Whether you’ve entered a new relationship or your mother is on your case about needing “more time”, “less time”, “more money” or a “cleaner home”, keep parenting decisions between you and your ex-partner. Other people are entitled to show some angst, but their angst shouldn’t impact how you choose to co-parent. You and your ex-partner are the only parents involved. If someone else doesn’t respect that, show them how strongly you feel about the matter.

9. Never air your grievances on Facebook

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Unlike a private conversation, aired grievances on the internet remain there forever. Something you write in haste or after a few wines might seem harmless at the time, but it can haunt you for years to come. Keep the relationship between you, your ex-partner and a few close confidants. If you need to vent, see a professional. No good will come from a vent on Facebook. We promise you that.

10. Make the most of your free time

When the kids are going to your ex-partner, make a plan! Sitting around and moping will only highlight the negative aspects of the situation, leading to hurt feelings. Plan to catch up with friends, go watch a movie, do the housework or go to the gym – any activity that will keep you busy and gives you some all important “me” time.

Think forward with Journey Family Lawyers

Lynne’s biggest piece of advice? Foster positive transitions for yourself, your ex-partner and your kids by engaging with Journey Family Lawyers Brisbane. You’ll receive specialist care so that you can work together harmoniously while keeping costs down.

Understanding the Divorce Process, with Clickable links to help

Are you thinking of getting a divorce and want to know what the process is like? If you live in Brisbane or North Brisbane there are five key steps in the divorce process you should know about, and it’s important that you understand what each one entails before you get a divorce. This includes filing for divorce, property settlement, and managing co-parenting after separation. You should also seek legal help when you get a divorce, especially if you’ve got children and joint property.

Divorce and separation

The Federal Circuit Court of Australia has the jurisdiction to deal with divorces under the Family Law Act 1975. When granting a divorce, the Court doesn’t consider the reasons for the divorce but simply recognises that the marriage has ended due to a breakdown and the parties will not get back together.

If you have children under 18 years of age, the Court will only grant a divorce if you’ve made proper arrangements for them.

Who can apply for a divorce?

In Australia, you can apply for a divorce if you and/or your spouse meet one of the following criteria:

  • You consider Australia your home country and will live in it permanently or
  • You’re an Australian citizen or
  • You normally live in Australia and have done so one year before filing for divorce.

If you married overseas and want to get a divorce in Australia, either you or your spouse must also meet the above criteria. You also need to give the Court a copy of your marriage certificate. If it isn’t in English, you should file an English translation of it, as well as an affidavit from the translator.

When applying for a divorce, you’ll need to prove to the Court that you’ve lived separately and apart from your spouse for at least one year and that you won’t resume married life. You can, however, be separated and still live in the same house – this is also known as being separated under one roof.

‘Separation under the one roof’… What does it mean?

You and your spouse can be separated but continue to live in the same house one year before applying for divorce. You’ll have to prove to the Court that you were separated during this time. You can find more information about this in the publication ‘Separated but living under one roof’.

How to apply for divorce

Simply register for the Commonwealth Courts Portal if you haven’t already done so, then complete the Application for Divorce online and pay the filing fee.

How much will a divorce cost?

The filing fee for a divorce application is $865. If you’re experiencing financial hardship or hold certain government concession cards, you may be eligible for a fee reduction. If so, you only have to pay $290.

What to do if you’ve been married less than two years

You should file a counselling certificate. You’ll have to attend counselling to get the certificate. Contact the Family Relationship Advice Line on 1800 050 321 to arrange counselling, or Relationships Australia on 1300 364 277. If you can’t attend counselling with your spouse, you should file an affidavit. You and your spouse should also have been separated for at least one year before applying for a divorce.

What if you have children and joint property?

The granting of a divorce doesn’t determine issues of property distribution or arrangements for children. For more information, please refer to ‘Property and Asset Settlement’, ‘Child Custody’, and ‘Co-parenting/Managing Separation with Children’ below.

Where to find more information on divorce and separation

Changing your name and address after getting divorced

Reverting to your maiden name or former name

If you took your spouse’s surname when you got married, you can revert to your maiden name or former following a divorce or separation.

If you were married in Australia, you should contact every organisation you have a personal account with to change your family name. You also have to provide proof of the name change, including the following:

  • Australian birth certificate
  • Australian marriage certificate
  • Updated photo ID
  • Identity documents

If you were born and/or married overseas and legally changed your family name to your spouse’s with the Registry of Births, Deaths and Marriages, you’ll have to legally change your name again with them.

If you were married in Australia, you’re entitled to be known by your maiden name regardless of your marital status. You simply need to prove the link between your married and maiden names with your marriage and birth certificates.

Who you need to notify when changing your name and address

Here are some organisations, governments, banks, and councils you’ll need to notify when you change your name and address after a divorce: They are all clickable links straight to the people you need to notify. We hope this helps you in these chaotic times.

You can easily and quickly notify organisations of your new name using a personalised name change kit.

Property and asset settlement

When your marriage is over, the financial ties between you and your ex should be finalised. For example, if you have a joint property, you should decide what happens to the house. You can either sell it or stay in it and your ex moves out.

What’s included in the property pool?

When you make a claim for property settlement, the Court will look at the property at the date of proceedings and at the date of Trial if it makes it all the way through the Court process. This means property, assets, and debt acquired after separation by either party will be brought into the property pool.

The property pool can include:

  • Joint property
  • Investments (shares, real estate)
  • Interests in businesses and companies
  • Interests or entitlements in trusts
  • Interests in deceased estates
  • Superannuation and savings
  • Inheritance money or lottery win
  • Boats
  • Vehicles
  • Jewellery
  • Artwork
  • Personal injury and compensation payouts
  • Long service leave
  • Life tenancy
  • Pension entitlements

How to start the property settlement process

The property settlement process should start soon after you divorce or separate from your spouse. At Journey Family Lawyers, we usually start the process by advising you of your entitlements. Then with your instructions, we’ll draft a letter to send to your ex partner to try to reach an agreement without having to go to Court. If an agreement can’t be reached, we recommend mediation between you and your ex partner. If there’s little chance of mediation succeeding, however, Court proceedings will commence and mediation can follow.

Time constraints for property settlement

Your or your ex-partner must apply to the Court for property settlement within 12 months of your divorce or within two years of your separation. If you don’t commence property proceedings within these time limits, you could lose your rights.

How to formalise your property settlement

The best way to finalise your property settlement is through a consent order, which is an order that you and your ex have agreed to. If the Court finds the property settlement to be fair and reasonable, they’ll make the order.

If you can’t reach an agreement with your ex, you can apply to the Court for a financial order.

How is the value of the assets determined?

When negotiating a property settlement, the Court will determine the value of the assets of both parties.

  • Furniture –The value of furniture is determined by their current sale value or second-hand value, not their replacement value or insurance value.
  • Joint property –The value of the property is what someone’s prepared to pay for it. But if you won’t be selling it, the value of the home is determined by taking the average of all the valuations provided by reputable real estate agents in the area. This is enough for most negotiations, but if agreement cannot be reached on the value and it goes to trial, a proper valuation by a registered valuer will be needed.
  • Cars, Motorbikes :These can be valued initially from a Redbook Valuation or a formal valuation obtained from a registered valuer.
  • Boats; These can be either valued or comparative values can be obtained from Tradeboats online.
  • Caravans These can be estimated initially from a Caravan online sales site or a formal Valuation
  • Superannuation –The value of your superannuation is harder to determine as its current value is lower than it’ll be at your retirement age. A Journey Family Lawyer can use forms to obtain information from your superfund to determine your super’s value. The forms are included in the Superannuation Information Kit. Self-managed super funds are generally valued with the help of an accountant. Some special Superannuation funds like Military Super have their own valuation process.

How are assets and debts divided?

When deciding how to divide assets and debts, the Court looks at:

  • What you’ve got and what you owe (assets and debts and what they’re worth)
  • The parties’ direct financial contributions to the marriage (wage and salary earnings)
  • The parties’ indirect financial contributions (gifts and inheritances from families)
  • The non-financial contributions to the marriage (caring for children and homemaking)
  • The parties’ future needs (the Court will consider your age, health, financial resources, care of children, ability to earn, etc).
  • Any financial resource or entitlement that you have that is not actually ‘property’ that can be divided between you both.

How can you split superannuation?

While you can split superannuation entitlements between both parties, it doesn’t automatically convert the interests into cash. The entitlements are still subject to superannuation laws, eg. it’s normally retained until you reach retirement age.

You can split superannuation by:

  • Entering into a formal written agreement
  • Seeking a consent order
  • Obtaining a court order if you can’t reach an agreement with your ex partner.

If you’re seeking a court order, the Court will tell the trustee of the superfund about the order by providing them with 28 days written notice. The trustee can attend the court hearing and object to the order you’re seeking. This is called providing the trustee with ‘procedural fairness’. Once the order is made, you should give a sealed copy of the order to the trustee.

Child custody

Child abuse or family violence

If your spouse abuses your children, you can apply to the Court to grant you custody of your children and you can ask the Courts to have your spouse leave the home by court order. If you’ll be leaving the house and your children are going with you, you should also take items that your children may need if you have time and also your special things that are of sentimental value.

If you’ve experienced domestic violence, you can apply to the Court for a domestic violence protection order to protect you, your children, and other relatives or associates from your ex.

While it’s important that your children have both parents involved in their lives, you should also make sure they’re protected from physical and psychological harm. The Family Law Act specifically says so.

What is ‘equal shared parental responsibility’?

Whether you or your spouse have full custody of your children, the Court will usually presume it’s in the children’s best interests if both of you have equal shared parental responsibility. In the case of child abuse or family violence, this won’t apply.

Equal shared parental responsibility means both parents are responsible for making long-term decisions for their children after a divorce or separation. This means you and your spouse should make parenting arrangements for your children, and they must be practical and in your children’s best interests. These could cover:

  • Where your children live
  • Who your children spend time and communicate with
  • What time your children spend with the parent they don’t live with
  • Times for your children to contact each parent by phone when they’re with the other parent
  • Childcare or education
  • Medical issues
  • Religious or cultural practices
  • Financial support for your children
  • Changeover arrangements (Where and what time should changeover occur, who drives where)
  • Arrangements for special days (Christmas, Easter, Mother’s Day, Father’s Day, birthdays)
  • How you and your ex-spouse will communicate with each other.

Who can you include in parenting arrangements?

If it’s in your children’s best interests, you can include the following people in your parenting arrangements:

  • Grandparents
  • Extended family
  • Other people who are concerned with the welfare of children.

Most importantly, you and your spouse should both be included in the parenting arrangements, to the extent possible having regard to any child abuse or family violence.

Written parenting arrangements

There are three types of written parenting arrangements. If you and your spouse agree with the arrangements made for your children, you can record your agreement as a parenting plan or a consent order. If you disagree with the arrangements, you can apply to the Court for a parenting order. But you should try to reach an agreement through family dispute resolution before applying.

1. Parenting plan

A parenting plan sets out the care arrangements for your children. It must be signed and dated by both parents. There’s no need for it to be in a specific format or witnessed.

You can change the plan any time by making another written agreement. It must also be signed and dated by both parents.

2. Consent order

You can apply to the Court for a consent order to make your agreement legally binding. You can also apply for a consent order online. You’ll also have to complete an Annexure to draft consent parenting order. You should file this with the Court at the same time as you apply for the consent order.

The consent order should be signed and dated by a suitable witness, such as a Justice of the Peace. You’ll have to pay a $160 fee when you file an application for a consent order.

You can change a consent order by making another consent order, parenting plan, or parenting order.

3. Parenting order

A parenting order is an order made by the Court regarding arrangements for your children and your parental responsibilities. The Family Law Act sets out what the Court should consider when making parenting orders, including what’s in your children’s best interests.

A parenting order is legally enforceable, so if you disobey the order you can face serious consequences.

Child support payments

Depending on who has custody of your children, you can determine the amount of child support you need to pay or receive by visiting Child Support at the Department of Human Services. If you want to change a child support assessment due to special circumstances, you can complete an application form to change the assessment. Your child support will be changed if there are indeed special circumstances and the change would be fair to both parents and the children.

Sometimes if your Income is going to radically increase or decrease, you could lodge an Estimate Of Income but be careful to read the guidelines or get legal advice before you do.

Co-parenting and managing a separation with children

Have your children’s best interests in mind

When co-parenting/managing separation with children, you and your ex should always have your children’s best interests in mind. Here are some factors to consider:

  • Protecting your children from harm
  • Ensuring your children have a meaningful relationship with both parents
  • The views of your children (Giving weight to their age and maturity)
  • The relationships your children have with each parent and other family members
  • The capacity and participation of each parent when parenting and spending time with the children
  • The effect of any changes to the children’s circumstance
  • The practical difficulty and expense of any arrangements.
  • The relationship the children have with each other sibling

What is ‘equal shared care’?

Equal shared care means your children spend half the time living with you and the other half with your ex.

In many cases, however, an equal shared-care arrangement isn’t in the children’s best interests, so the Court will consider an alternative arrangement. For example, your children will live with you and spend every second weekend, plus one night each week and half of the school holidays with your ex. Other arrangements such as 4 or 5 day weekends every second week, or 8 days a fortnight with one parent and 6 days a fortnight with the other are also common. It depends on what is best for the children.

What if you’re relocating?

If you’ll be relocating with your children, you should get your ex’s written consent or do it with a court order. On the other hand, if your ex moves away with your children and it affects your children’s ability to spend time with you, you can obtain a recovery order requiring your ex to return your children.

Tips for successful co-parenting

Here are some tips for successful co-parenting:

  • Don’t use your children to relay messages to their other parent.
  • Speak directly to your ex partner but keep it businesslike and to the point
  • Don’t talk badly about your ex to your kids or in their hearing
  • Be considerate towards your ex-partner
  • Respect your children’s time with your ex-partner
  • Don’t do something that would make it hard for your children to have both parents attend their weddings
  • Don’t let another adult’s angst affect the decisions you make in your parenting arrangements with your ex-partner
  • Plan your time when your children are away, so that you don’t mope
  • Don’t air your grievances on social media, even if you’ve blocked your ex-partner. Someone will pass it on and one day the kids may read it too..

Would you like some guidance through your divorce? Contact Journey Family Lawyers Brisbane today

With more than 30 years’ experience, Journey Family Lawyers Brisbane can guide you through the process of divorce and help you achieve a positive outcome. Our services include divorce, separation, property settlement, and child support. We’ve helped thousands of Australians through their separation, so call us now on (07) 3832 5999 for a free 15-minute consultation. You’ll get personal advice from one of our friendly specialist family lawyers to ensure your divorce goes as smoothly as possible.

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DIY Divorce Kit

Divorcing our former spouse is an important part of moving on for many people

Whilst the Courts offer a free Do it yourself Divorce kit, we at Journey Family Lawyers can also act for you and manage the divorce process for you. It can be a complicated process and we will handle your divorce in the most expeditious manner possible. If you want to talk about the process, give us an obligation free call.

Divorce can be an expensive process and, in many cases, people can and do try to manage their own Divorces. We at Journey Family Lawyers have prepared a Guide to “Do it Yourself” Divorce to assist those trying to manage the process themselves. If you have any questions, feel free to use our 10 minute free telephone consultation service.

Of course, with other aspects such as property and children, you need to talk to a Lawyer to understand your rights; this is particularly so with property and children’s issues and we strongly recommend you get professional advice on these matters so you know where you stand. THERE ARE TIME LIMITS for instituting property proceedings after separation and divorce.  ITs worth a visit to know where you stand in relation to divorce.

Steps to Take in Applying for Divorce

Application

You must decide whether you will file a sole or joint Application for Divorce.  If you and your spouse are amicable and able to co-operate, it may be easier to file a Joint Application.

Completing the Application

Your Application will be filed in the Federal Magistrates Court unless exceptional circumstances exist. Please contact us if you are unsure. you can now do this online.

Signing the Application

Your Application must be sworn or affirmed by you that all of the facts and details within the Application are true and correct to the best of your knowledge.  This must be signed before an appropriate person able to witness documents.  This can be done before a Lawyer, Justice of the Peace or other authorized person to witness an Affidavit.

Collating the Application

Along with the signed Application, you must attach all supporting documentation that may be required.  This whole document must then be photocopied twice. You must also attach a copy of your Marriage Certificate.

Filing

Your Application, the along with the two copies need to be filed at your nearest Family Law Registry.  This can be done by attending at the Registry in person or posting the documents to the Registry.

You must also remember to pay the appropriate filing fee and provide the Application for Reduction and payment of Divorce if applicable.  This can be paid by cheque made payable to “Collector of Public Monies” or filing in person by cash or credit card.

Upon filing your documents the Court will keep the original and return two copies to you.  On these copies you will find in the Court Use Only Section your court file number, along with the allocate date of your hearing.

The Court will also give you copies of the Family Court Brochure “Marriage, Families & Separation”, for both you and spouse.

Filing Fee Reduction

Applicants who are under a financial disability may apply for relief from paying all the Court filing fee. 

There are two ways of applying for a filing fee reduction.

In one category (see below), you may fit into a particular category of people who are eligible for a fee reduction. The second way of obtaining a fee reduction is because of Financial Hardship.

A fee reduction was previously available for eligible applicants with a fee of $60.  On 1 January 2013 the court increased the Reduced Fee to $265. The “Fee Exemption” form is now called ‘Reduction of Payment of Court Fees’ form.

1. Fee Reduction for Eligible Persons

The reduced fee may apply if:

  • You hold a Health Care Card, Health Benefit Card, Pensioner Concession Card, Commonwealth Seniors Health Card or any other card issued by Centrelink or the Department of Veterans Affairs that entitles you to Commonwealth health concessions;
  • You are receiving Legal Aid, Youth allowance or Austudy payment or Abstudy;
  • You have received a “Notice of Exemption” from an approved Community Legal Centre;
  • You are an inmate of a prison or otherwise legally detained in a public institution.

Only the Applicant has to satisfy one of these categories to qualify for a fee reduction however if you want to lodge a joint Application for Dissolution, both of you must satisfy one of the categories.

To access the Application for Reduction of Court Fees, follow this link. 

When filing the Application for Dissolution, you will need to submit the completed Application for Reduction of Court Fees form to the Registry. You will also need to attach photocopies of documentary evidence of any of the above (such as your Health Care Card or Legal Aid letter) to support your claim. Photocopy both sides of the card or other document.

2. Fee reduction because of Financial Hardship

You may be eligible for a fee reduction if your income, day to day living expenses or liabilities and assets are at a level that payment of the full fee would cause financial hardship. To apply for this a different Financial Information form must be filled in.

To access the Guidelines for reduced fees (financial hardship), Click here.

If after reading the guide lines you think you are eligible, download the Application for Reduction of Court Fees (referred to above) and lodge when you are filing your Application for Divorce.

Service of Documents

There is no requirement for service if you applied by way of joint Application, each you and your former spouse should keep one (1) copy of the Application received back from the Court.

If you applied for Divorce by way of sole Application, there will be a requirement of service on your former spouse

In order to serve your former spouse, you must fulfill the requirements of service, being that you must serve the sealed copy of the Application for Divorce and the brochure “Marriage Families & Separation” on your spouse:

    1. At least twenty-eight (28) days before the date of your hearing, if your spouse is currently in Australia; or
    2. At least forty-two (42) days before the hearing if your spouse is out of Australia.

 

Attendance at the hearing

If you and your former spouse have no children currently under the age of eighteen (18) there is no requirement to attend at the hearing. This applies in both situations of sole and joint Application for Divorce.  If your application was a Joint Application, even if there are children of the marriage under the age of eighteen (18) years, neither you, or your former spouse are required to attend the hearing.

You will be required to attend the hearing if you are the Applicant of a sole Application and you have a child or children under the age of eighteen (18) years.  It may be possible for you to attend the Court Hearing by telephone.  Click here for further information.

Outcome of your Divorce

If your Divorce Application is successful, the Court will grant what is known as a Divorce Order. The Divorce does not become finalised when granting the Divorce Order; rather one (1) month and one (1) day later unless otherwise shortened by the Court.

If you did not attend the hearing a copy of the Divorce Order will be sent to you in the post or available online if applicable.   However you will not receive this until the Divorce has become finalised.

Additional Important Information

Journey Family Lawyers practice solely in Family Law and are very experienced in matters of Divorce and Separation.  Journey Family Lawyers are more than happy to assist you with any of your Family Law or Separation queries.

Upon finalisation of your Divorce, there is a time limitation placed on you in order to apply to the Court to have your property matters finalised and financial ties with your former spouse severed.  This time limit is one (1) year from the date the Divorce becomes finalised.  After this time, it is still possible to apply to the Court for a property settlement, however it will only be granted in special circumstances.

If you and your former spouse have children under the age of eighteen (18) years, you should consider how you are going to continually co-parent these children post separation.  Journey Family Lawyers are most than happy to assist you in formalising care arrangements for your children by way of agreement and lodgment with the Court or by way of Application for the Court to determine what is in your children’s best interests.  There are many factors that the Courts take into account in determining what arrangements are in the children’s best interests, and this is something that we can go through with you.

Frequently Asked Questions

How do I apply for Divorce?

There are two (2) ways in which you can apply for a Divorce from your former spouse:

    1. You can apply for a Divorce by yourself, this is known as a sole application; or
    2. You and your spouse can apply together; this is known as a joint application.

When can I apply for a Divorce?

In Australia, in order to apply for a Divorce from your former partner the Court needs to be satisfied that you and your former partner have been separated for at least a twelve (12) month period.

The Court must also be satisfied that there is no reasonable likelihood of the two of you resuming your former married lives.

What if we are separated but still living together?

It is possible to continue to live with your former spouse and still be classed as separated. There are a number of factors that the Court will take into account when determining whether you and your former spouse are actually separated.

If you applied by way of sole application, you must file an Affidavit of yourself in order to put evidence before the Court that you and your partner, though still living under one roof, are in fact separated.  It may also be beneficial to file a further Affidavit of  a third party, such a family member or friend, that can give further evidence to the Court that you and your former spouse are separated.   If you and your spouse are applying as a joint application, you must each file an Affidavit of evidence in this regard.  The evidence in this Affidavit needs to be more than simply and you and your former spouse are living in separate bedrooms, there must have been a change in the relationship, whether gradual or sudden, demonstrating that you are separated and living separately, but in the same house.

I was married overseas, can I get Divorced in Australia?

In order to apply for divorce in Australia, you or your former spouse must fulfill one of the following criteria:

    • You or your former spouse regard Australia as your homeland and intend to continue to live in Australia indefinitely; or
    • You are an Australian Citizen by birth, descent or grant of Australian Citizenship; or
    • You or your former spouse have ordinarily lived in Australia for the last twelve (12) months and continue to ordinarily live in Australia.

How much does it cost to get Divorced?

In order to apply for Divorce, there is a filing fee payable. You can find the current Family Law filing fees here.

A reduced fee may be payable in some circumstances, for example if you or your former spouse hold certain government concession cards, such as a Health Care Card or a Pensioner Concession Card, or if you are experiencing financial hardship.  In order to apply for this reduction you will need to complete the required form.

The divorce form asks me for my address, but I don’t want my former spouse to know where I live, what do I do?

It is not a requirement for you to disclose your residential address on the Application for Divorce; however you may be required to provide more information to the Court in this regard if required.  You will, however, have to provide an Address for Service.  This may be your lawyer’s address.

If you are concerned about your safety and there is current pending or existing Orders in relation to family violence with your former spouse, this must be included in your Application as they may affect the Orders that the Court may make.

Do I have to attend Court to get Divorced?

Once your Application is filed with the Court, it will be listed for a Hearing.

If there are no children of the marriage who are currently under eighteen (18) years of age, neither you nor your former spouse will be required to attend the hearing.

If your Application with your former spouse is a joint application, even if there are children of the marriage under eighteen (18) years of age, neither you nor your former spouse would be required to attend the hearing.  If there are children under eighteen (18) years of age, in order to grant a Divorce Application the Court must be satisfied upon with the breakdown of the marriage, that there are adequate care arrangements in place for these children.

If you make a sole Application to the Court and there are children of the marriage who are under the age of eighteen (18) years, you must attend at the hearing.

If you are required to attend the hearing in accordance with the above and do not do so, your Application for Divorce may be adjourned to a further hearing or dismissed altogether.  In some circumstances it may be possible to attend the Court hearing by telephone.

I am getting re-married; do I need to be divorced?

In accordance with Australian Law you are not able to re-marry until our divorce from your previous spouse has been finalized.  If your divorce was granted on the day of the hearing. In most cases the divorce will become finalized one (1) month and one (1) day later. If you intend to re-marry, you must comply with all requirements of the Marriage Act 1961, including that you must give the marriage celebrant a Notice of Intended Marriage at least one (1) month prior to the wedding.  However a marriage celebrant will not accept a Notice of Intended Marriage until the divorce has become finalised from your previous spouse.

So I have got divorced, is there anything else that I need to think about with my former spouse?

An Application and grant of Divorce is not the only issue that you and your former partner will need to consider post separation.  You will also need to consider issue:

    1. Regarding property and severing your financial ties; and
    2. If you have any children under the age of eighteen (18) years, finalizing their care arrangements.

It should be noted that neither of these two things are reliant on a divorce and can be finalised any time after separation.

I can’t find my Marriage Certificate, do I need it?

In applying for an Application for Divorce, you must provide the Court with a copy of your marriage certificate.  If you are unable to locate your Marriage Certificate, and were married in Australia, the Registry of Births, Deaths & Marriages in the capital city of the State where you were married should be able to provide you with a certified copy of this.

If you are unable to get a copy of your Marriage Certificate, you will need to prepare an Affidavit and file it with the Court.  This will be used as evidence of your marriage and why you are unable to get a copy of the Marriage Certificate.

If your Marriage Certificate is not in the English language, you will need to:

  1. Obtain an English translation of the marriage certificate;
  2. File an Affidavit of the translator who translated the original foreign language marriage certificate confirming:
    • Their qualifications to translate the marriage certificate; and
    • That the translation is accurate.
  3. Annexed to this Affidavit needs to be a copy of the original Marriage Certificate and a copy of the translated Marriage Certificate and the affidavit must state that the attached copy of the Marriage Certificate is a true and correct copy of the original Marriage Certificate.
  4. What if we are separated but got back together and now we have separated again.  Can I still apply for a Divorce?

As stated previously, you must be separated from your former spouse for a minimum of twelve (12) months before applying for a Divorce.  However you can recommence living together as husband and wife for a period of up to three (3) months post separation.

 If the period you got back together was less than three (3) months, then the time before you got back together can be used in addition to the time after you separated again to add up to a total of twelve (12) months.  If you and your former spouse got back together for a period of longer than three (3) months before you separated for the second time, you must be separated for a further twelve (12) months before applying for a Divorce.

Do I have to do any form of counselling before I can get Divorced?

If you and your former spouse have been married for a period of less than two (2) years, you must attend counselling with a family counsellor to discuss reconciliation.  If you do not attend counselling you must seek permission from the Court to apply for a Divorce.

If you have been married for a period longer than two (2) years, there is no requirement for you and your former spouse to attend any form of counselling.

Journey Family Lawyers offer a free 10 minute chat over the telephone with one of our experienced lawyers.  We also offer an Initial Consultation for the reduced rate of $143.00 (GST inclusive) which can cover both parenting and property and maintenance matters and let you know where you stand.

 Journey Family Lawyers will gladly can assist you and act on your behalf at a reasonable fee.

Property Settlement in difficult financial times

Property Settlement . We  have formulated some guidelines for a property settlement. The  advice below is a general but a handy guide to first steps in a Divorce property settlement. If you need other questions answered, or need to speak to a member of our top Family Law team about your particular situation, please phone us for a free 10 minute chat, or email us on enquiries@journeyfamilylawyers.com.au for a confidential and free chat.

As if people thinking about Divorce or separation in Queensland didn’t have enough worries with the floods and the cleanup! Now we have dropping house prices and downturns in business and share prices as well. This obviously impacts on peoples’ ability to get property settlement sorted and can result in more Court cases in the Family Court. Today I thought I’d talk about some strategies to help you through and also comment on the way this has been played out in Court cases and settlement mediations throughout the past year in my firm, Journey Family Lawyers, and also what I have heard from other Family Lawyers.

In property settlement, the first step is to calculate the assets. This is easily achieved by valuing the assets or selling them! Just be careful that you never rely on old valuations where property prices are dropping, you should make sure your valuation is no more than about three months old.

If you have Superannuation, then, like shares, the value may have dropped to a disappointingly low level. This is not so easy to swallow, and the best thing you can do is accept the losses and move on. It is what it is.

Values of assets are an issue for the final stage of property settlement proceedings under section 79(4) of the Family Law Act. But what happens during the initial separation? In our article, “Separation advice: Before you go“, we talk about strategies for those early, difficult days. It helps if you think about separation in two stages, the interim, immediate stage and the long term plans and outcome that you want to achieve.

So, close your eyes and take a deep breath. I want you to visualise how your life will be after you have sorted this mess of separation out. Some people see themselves in a rented unit or house, others see themselves in their own home, bought with the proceeds of sale of the joint property, and still others plan to buy their partner out of the current joint home.

Whichever plan you have, you can see that it won’t be achieved instantly, no matter how amicable your settlement will be and however friendly your separation is. In the current housing market, you can expect to have your house for sale for over 100 days before it may sell. You may need to consider reducing prices. Don’t worry too much, because you will be presumably buying your new property in the same low market.

But, you need a short-term plan as well. One that can keep you comfortable and secure until the finances are untangled. This is the tricky one. So, a couple of FAQ’s.

  1. The person who stays in the family home usually has to pay the outgoings, such as mortgage rates and insurance etc. I say usually, because there are exceptions, such sometimes where the children are in the home as well, or where the bank is chasing the joint mortgagors. The idea of the person who stays being responsible for the payments is one that the Family Law Cases has generally endorsed on the basis that the other party presumably has to get their own accommodation and will be paying for that.
  2. Leaving the home does not mean you have somehow abandoned your right to have it considered in ten property settlement.
  3. If you have a car registered in the name of one person, but it is agreed that the other person can have it in the short or long term, that is fine, but if the non registered user of the car does not pay the registration, or insurance, then it is the registered owner who may be liable.
  4. Medical insurance is usually in the Family Rate at the time of separation. Be careful about relying on the other party to make the premium payments. I often advise my clients to check that the payments have been made each month. Ultimately you need to get separate health insurance but many people find it easier to keep it joint in the short term, especially when everything is in chaos in the early weeks of separation. This is particularly useful and important if you have kids.
  5. Furniture, whilst important is not the be all and end all. If taking a particular piece of furniture is going to damage your relationship further than it already is damaged, you might like to reconsider. If you take the ” removal truck” option, where you take everything and just leave very little, then you should not be surprised if your ex will not negotiate with you on the rest of property settlement. Try to be very fair. It may pay off when it counts, say in property settlement or in kids matters.
  6. Take all of your papers, and copy all of the joint ones, or take them and copy them at a later date. You can always give them back. But you may spend a lot of money with lawyers finding out information that was already available to you in your cabinet before you left.
  7. Finally, take your photos, trophies, sewing, tapestry, music or rock collection, or whatever it is that is precious to you and irreplaceable. If it should be shared, you can give it back later, or have it valued later, but if it is one of a kind, and valuable mainly only to you, take it now, when you go. Otherwise I am afraid it may well disappear (I have seen it happen often), or be regarded as unimportant by the Judge in the final property settlement. These are the things that you will regret losing and for which money is not a substitute.

So get yourself settled in a way that you can afford, with the things such as insurances and your personal items safely with you. Don’t upset your partner unnecessarily. Make sure that between you both all the bills are still being paid. Be aware that this is just a holding pattern, and don’t let the emotion of the break-up make you foolish about these things.

Think about what you want to achieve in the future with your settlement. Reality check this with friends and then give your lawyer the goal posts. Hopefully a friendly civilised property settlement will be yours within the year!

Our firm knows the pressure that unresolved property issues brings to your daily lives and we will do everything we can to get a speedy resolution through either mediation, negotiation or if necessary, strong and decisive representation in Court.

I hope this helps, email me or send a question to Journey Family Lawyers at enquiries@journeyfamilylawyers.com.au. Someone will get back to you usually within a couple of business hours for free. Or phone us on one of the below listed numbers for a free 10 minute consultation

Kind Regards,

The Journey Team

Keeping Costs down

Superannuation

Following separation people wish to make arrangement for property settlement and remember having heard somewhere that superannuation is now considered property for the purposes of family law property settlement.  Sometimes people wish to reach an agreement about splitting their superannuation interests but do not know how to go about doing this.  The purpose of this fact sheet is to provide you with some general advice about how the Family Courts deal with superannuation interests.

Superannuation splitting law

The superannuation splitting law treats superannuation as a different type of property to things like houses, cars and bank accounts. It lets separating couples value their superannuation and split superannuation entitlements, although this is not necessary for all people to do so. Each case is unique.

It is important to understand that splitting superannuation entitlements does not convert those interests into a cash asset – the entitlements are still subject to superannuation laws (for example, it is usually retained until retirement ages are reached).  In simple terms, if you wish to receive part of your partner superannuation this does not mean you can readily convert it into cash.  Only in very limited circumstances will a super fund allow you to do so, and only then, only a limited amount (known as “hardship grounds”).  You must check with your Journey family law solicitor first before thinking you can access any part of your partner’s super after property settlement.

Options for splitting superannuation

Separating couples may either:

    1. Enter into a formal written agreement to split superannuation

A formal written agreement requires that both you and your former partner instruct a lawyer who must sign a certificate stating that independent legal advice about the agreement has been given. Once this agreement is made, you do not need to go to court. The agreement is not registered in court and you must be careful that each of you retains a copy.

Journey family lawyers do not recommend that anyone enter into a “superannuation agreement” as there are many dangers and pitfalls involved in doing so. Ask your Journey family law solicitor about this if you require further advice.

  1. Seek consent orders to split superannuation (this our best recommendation), or
  2. Seek a court order to spilt superannuation (if you cannot reach an agreement with your former partner)

Even when an application is made to a court, it is possible to reach an agreement at any stage without the need for a court hearing, and we encourage you do to so.  Journey Family Lawyers has a high success rate and reaching settlement in property matters thereby avoiding costly trials. You should ask your Journey Family Law solicitor about these options.

What you need to do to split superannuation

Step 1: Obtain valuation information

You need to get information to value the superannuation interests of both of you. You should provide the following forms to the trustee of the superannuation fund (we will usually do this for you):

  1. Form 6 Declaration. This satisfies the trustee of the fund that you are entitled to get the information for this limited purpose, and
  2. Superannuation Information Request Form (accompanied by the appropriate Superannuation Information Form).

The superannuation fund may (and often does) charge a fee for providing this information, and this is paid when you send the forms. The Superannuation Information Kit provides the information and the forms you need. To obtain a copy of the Superannuation Information Kit go to www.familylawcourts.gov.au or call 1300 352 000, or ask your Journey Family Law solicitor.

The information from the trustee may be enough to value the superannuation. However, the valuation of some superannuation interests can be complex. An expert may need to provide a further valuation.  This often occurs when one of you works in the public sector and is a member of a defined benefit scheme.  The valuation process for such schemes is often very expensive.  You should ask your Journey Family Law solicitor about valuing superannuation.

How superannuation is valued

There are different types of superannuation. The superannuation splitting legislation sets out methods for valuing most types of superannuation, but there are exceptions, including:

  1. Self-managed superannuation funds – they are generally valued with the assistance of an expert such as an accountant
  2. Where the Attorney-General has approved a fund using a different valuation method.

Step 2: Decide the method of splitting

You have the option of either entering into a formal written agreement or obtaining a court order (by consent).

Obtaining a court order (our preferred method)

People obtain court orders about the division of matrimonial property in two ways:

    1. By consent of the parties

If you and your former spouse have reached an agreement about property settlement (and superannuation), then a Form 11 Application for Consent Orders should be filed in the Family Court, accompanied by a  consent order (often referred to as “Minutes of Consent” or “Terms of Settlement”) recording the agreement. The orders can then be made in chambers (by a judge alone)  without either of you or your Journey Family Law solicitor attending court.

NB.  In some rare circumstances the Court will require further information from the parties.  Just because you have prepared Consent Orders and a Form 11 does not necessarily mean that it is the end of the matter.  A court will only make the Orders you seek if they are “just and equitable” and are enforceable by law.  The wording of superannuation splitting orders is complex and must meet strict legislative requirements.  If your orders are not worded correctly they will be rejected by the registry and you will find yourself having to seek the advice of a solicitor.  It is always wise to seek legal advice first, and is you wish to have super-splitting orders made, have your Journey Family Law solicitor prepare them for you to avoid delay and unexpected expense.

  1. As a result of a court hearing.

Even if you start proceedings, you can reach an agreement at any stage and once the orders recording the agreement are made you do not need to attend court further, provided that the Court is satisfied that the orders you seek are “just and equitable”.

Either way, you need to file an Application with the Court.

To start a case in the Federal Magistrates Court we must prepare for you and file an Application, an Information Sheet and a Financial Statement. The other party will file a Response and a Financial Statement.

The information from the superannuation fund trustee will help us to complete the court forms. You must disclose all superannuation, even if you do not intend to split superannuation payments.

Informing the superannuation fund

If you are seeking court orders about superannuation, we must tell the superannuation fund trustee about the orders you are seeking.  We must ordinarily provide the Trustee with 28 days written notice of the orders we seek on your behalf.  The trustee must have an opportunity to attend the court hearing and object to the orders that you are seeking. This is called providing the trustee with ‘procedural fairness’.

Once the superannuation order is made, whether by consent or after a hearing, it is  important to provide a sealed copy of the order to the trustee immediately.

You should get legal advice from us before deciding what to do. Our team of solicitors can help you understand your legal rights and responsibilities, and explain how the law applies to your case. Our role is to help you reach an agreement with your former partner without going to court.  That is always our first preference, but in some cases, it is simply not possible for parties to agree and if that is the case, we will assist you to prepare your court case.

Divorce and Separation free advice blog

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

Separation advice: Before you go

We find when client’s come to Journey Family Lawyers for the first time, there are two prominent issues that we need to look at;

what will be the final outcome and

what is going to happen in the short term.

This article gives some practical tips for what to do before you go and what to do once you’ve left.

Understand your finances.

One of the biggest problems we have with client’s coming to see us for the first time, is that they just don’t understand their finances. It’s very common to hear, “Oh, but so-and-so always paid the bills, I have no idea how much we have.” As painful as it is, you need to learn the basics.

After speaking with us for the first time, we will often recommend that you go and speak to a financial planner. Why? Because we can’t give you financial advice. They can give you advice on:

  1. Budgeting (very important in the interim);
  2. Life insurance;
  3. Mortgage payments;
  4. Savings accounts;
  5. Retirement;
  6. etc.

We can work with your financial planner to let them know how much money you have to work with so that a manageable budget can be planned.

Get Organised

Often, people just walk out of the house with nothing more then the clothes on their bank. Sometimes however, you have the opportunity to do a little pre-planning. If you can, take a copy of all your useful documents (bank statements, superannuation statements, share statements, tax returns, pay slips, etc.) to provide to us to give us a better understanding of your property pool.

And once you do leave, get organised! Put a binder or folder together of your most important information. You can include in it account numbers, contact information, policy numbers, correspondence from your solicitors and any other important documentation. It’s simple, but effective and helps you to focus.

As well as this, if you are leaving and you’re worried about personal items, take them with you. Photo albums are not easily replaced but copies can be made later.

Get Support

Divorce adds pressure to your already busy life, so to get through it, you need a good support system. Find a solicitor that you can relate to. Having a good relationship with your solicitor is absolutely fundamental. If you don’t trust or feel comfortable with your lawyer, you will never feel ok with the outcome. If you need to, speak to a psychologist or counsellor. Remember, we are all professionals in different arreas for a reason. Just like a counsellor can’t give legal advice, there are certain issues that solicitors aren’t trained to deal with. If you feel like it’s becoming too much, speaking to a professional will often help with this pressure.

Speaking with a financial planner, accountant or real estate agent often helps as well. Ask your family and friends for a good recommendation.

Your Journey file

We lawyers absolutely love paperwork! And if you think your paperwork pile was big before, a complicated divorce matter makes things so much worse. It can be tempting to simply through everything in a box and leave it there, but we recommend getting a file or system in place that allows you to keep everything organised. That way, you’ll know where everything is when you need to access it and you will make your life much easier.

Who pays the bills?

There is a time lag between a person first applying for Centrelink payments and Child Support and the date of the first payment. This can leave one party in dire straits for a few weeks, especially if they do not have any funds in their own name.

In these circumstances, most people continue to take mortgage payments and other living expense from whichever salary funded them in the past. It is usually only later, when Child Support payments are being made that the person living in the house assumes liability for the mortgage and outgoings. The Court expects a person living in a property to pay for the costs associated with that property on the basis that the other parent will have other living expenses involved in renting.

If no agreement can be reached then it may be necessary to bring an urgent spousal maintenance claim to cover day to day living expenses.

Who lives in the home?

Many times the Father leaves the house and the children and their Mother stay in the home. This is usually the sensible course of action as it is easier for one person to relocate than for several people to relocate. Difficulties arise however, where neither party will leave the home and resulting conflict makes life hell for both parties and the children.

In these circumstances, it may be necessary for one party to apply to the court for an order granting them “sole occupancy”. Decisions on this point are made by the Court based on the balance of convenience and fault, amongst other things. Generally the person who has somewhere else to go and the money to fund the move will be asked to leave. Unless he or she can convince the Court that there is no reason why they should leave. It is not unusual for people to continue to live under one roof but separately if they are unable to afford alternative accommodation for one party.

Where will the children live?

At the early stages, unless there are serious emergent circumstances, the parties will need to negotiate interim parenting arrangements either directly between themselves, or with the assistance of solicitors. Family Relationships Centre or Relationships Australia offer a free mediation for parties to discuss parenting arrangements.

Remember, unless there is an exception, parties must attend (or have sought to attend) compulsory family dispute resolution prior to commencing proceedings.

The Journey to Equal Time

Introduction

More and more cases coming before the court now involve parents asking the Court for them to be able to spend equal time with their children. In most of these cases the other parent will be asking that the other parent be permitted to be able to spend only ‘substantial and significant’ time with the children. Both of these scenarios involve more than the traditional alternate weekend arrangements which are now considered, in most cases, obsolete. In all of these cases the Courts must apply newly legislated principles to each factual scenario. These principles were first handed down by the Australian legislature on 1st July 2007, and now, more than twelve months later, most lawyers can tell you, with a reasonable degree of certainty, whether or not you will be successful in seeking ‘equal shared care’ or ‘substantial and significant time’.

What happens when you first separate?

In a lots of cases after parents separate, they will make informal arrangements with one another about the time (and communication) each of them will have with their child/ren. Disputes about time and communication can often occur immediately after separation, or some months or years later. Parents then find themselves in a position where they are uncertain about their rights and obligations under the law, and in need of legal advice about what to do. Parents often do not know how their dispute would be resolved by a Court and how much time a Court would find they should spend with their child/ren.

1st July 2006 Amendments to the Family Law Act 1975

On 1 July 2006, the law changed with respect to parenting matters with the coming into effect of the Family Law Amendment (Shared Parental Responsibility) Act 2006. A new formula was put into a legislative framework for determining the best interests of children. That framework is set out below.

1st July 2007 Amendments to the Family Law Act 1075

On 1 July 2007, there was a further requirement put into law that people in dispute over parenting matters must attend a compulsory family dispute resolution service (for example mediation) to resolve their dispute. People (who don’t already have a Court Order) no longer have the option of going straight to Court, except in very limited circumstances. While attending at that mediation there is a further requirement that you make a genuine effort to resolve the issues in dispute. Only then will a certificate be issued enabling either party to commence proceedings in the Federal Magistrates Court of Australia or the Family Court of Australia should matters not resolve at the compulsory family dispute resolution service.

Purpose of the Legislation

The purpose of the changes to the Family Law legislative framework are to ensure that the best interests of children are met by:

  • Ensuring that the children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent possible.
  • Protecting children from harm.
  • Ensuring children receive adequate and proper parenting.
  • Ensuring that parents fulfill their duties and meet their responsibilities concerning their children.

Certain principles underly the amendment of the legislative framework and those are:

  • That children have the right to know and be cared for by both parents.
  • That children have the right to spend time with both parents.
  • That parents jointly share duties and responsibilities concerning their children.
  • That parents should agree about future parenting of their children.
  • That children have the right to enjoy their culture with people who share that culture (in this instance this particular principle is not terribly relevant).

How the Court Determines What is in a Childs Best Interests

What does the Court take primarily into consideration?

The primary considerations for determining what are in a child’s best interests are as follows:

  1. The benefit to the child of having a meaningful relationship with both of the child’s parents; and
  2. The need to protect the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.

What other considerations are there?

When the Court is determining the best interests of children, it will consider the following in addition to that above:
any views properly expressed by the child;
the nature of the child’s relationship with each of the parents and other persons of significance (such as grandparents);

  • the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent (on your instructions it appears that the Mother of the children is refusing to any way facilitate your relationship with your children since separation);
  • any change in the child’s circumstances;
  • the practical expense of the child spending time with the parent that the child does not live with;
  • the capacity of any adult caring for the child to provide for the needs of the child;
  • of the maturity, sex, lifestyle and background of the child;
  • the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents;
  • any family violence involving the child or members of the child’s family;
  • any family violence order that applies to the child or a member of the child’s family;
  • whether it would be preferable to make an order that would be least likely to lead to the further institution of proceedings in relation to the child; and
  • any other factor or circumstance that the Court thinks relevant.

What else will the Court look at?

When reviewing the willingness and ability of each of the child’s parents to encourage a relationship and the attitude to the child on the responsibilities of parenthood, the Court will consider:

  • Whether a parent has failed to take an opportunity to participate in making decisions about the child or to spend time with the child or communicate with the child.
  • Has facilitated or failed to facilitate decisions about the child, spending time with the child or communicating with the child.
  • Has fulfilled or failed to fulfil the parents obligation to maintain the child (example by Child Support).
  • The Court must have regard to events that have happened and circumstances that have existed since the separation occurred.

Court to Consider Child Spending Equal Time in Certain Circumstances

When making a parenting order, the Court must now consider:

  • Whether spending equal time with each parent is in the best interests of the child.
  • Whether spending equal time with each of the child’s parents is reasonably practicable.
  • If it is reasonably practicable make an order for the child to spend equal time with each of the parents.
  • Reasonable practicality is determined by factors such as:
  • how far the parents live from one another;
  • the parents current and future capacity to implement an arrangement for the child spending equal time with both parents;
  • the parents capacity to communicate with one another about the arrangement;
  • the impact such an arrangement would have upon the child or children;
  • such other matters that the Court may consider relevant.

What will happen if equal-time is not in the best interests of the children or is not reasonably practical?

IMPORTANT: There is no presumption that a child should spend equal time with each of its parents. In the absence of family violence and/or child abuse the Court must consider equal-time, but it is never bound to give it to you. There are often strong practical reasons why the Court will not order equal-time.

If it is not in the best interests of the child or it is not reasonably practicable to put in place an equal time arrangement the Court must make an order for the child to spend substantial and significant time with the parent that the child does not live with. The Court does this by determining again what is in the best interests of the child. The only circumstances where an order for substantial and significant time will not be made is where there are indications of serious family violence or child abuse or further indications that it really is not in the best interests of the child for that particular child to spend substantial and significant time with one of its parents.

Is substantial and significant time the same as traditional alternate weekends and half the holidays?

The simple answer to this is – no. Substantial and significant time is quite different is only limited by what is determined to be in the best interests of the child.

An order for substantial and significant time must include an order for the child to spend time with the parent on the following days and at the following times:

  • days that do not fall on weekends
  • holidays
  • days of special significance – such as Christmas Day, Easter Sunday, the child’s birthday, Mother’s Day and Father’s Day
  • time that allow the parent to become (if they are not already) involved in the daily routines of the child

That is, the Court must in most circumstances include in the Order that the child spend time with the parent on a week day. This may involve the child spending mere hours with that parent on a given day (for example, after school) or the child may stay with that parent overnight.

False Allegations

In Family Law we sometimes, sadly, discover that parents are so alienated from one another and in such a high level of conflict that they will say and do almost anything to stop the other parent remaining meaningfully involved in a child’s life. They may make false allegations of abuse or violence against a parent, or may tell the Court the child has made certain disclosures which the child did not make.

When proceedings are brought before a Court and the Court is satisfied that a party of the proceedings knowingly made a false allegation or statement in the proceedings, the Court must order that party to pay some or all of the costs of the other party to the proceedings. Not only are such allegations tantamount to perjury, but they may have other significant repercussions in a child’s life, as well as having significant other penalties.

Obligations of Legal Advisers

In accordance with Journey’s obligations under the new legislative framework, we advise as follows:

    1. You must consider at all stages either in the proceedings or in reaching an agreement in relation to a child that, if the child is spending equal time with each of the parents, is reasonably practicable and in the best interests of the child – you must consider an arrangement of that sortt.
    2. If equal time is not reasonably practicable or it is not in the best interests of the child, then you could consider the option of an arrangement of a child spending substantial and significant time (which is more than the traditional alternative weekend arrangement) with the parent.
    3. Decisions made in relation to parenting agreements, plans and orders should be made in the best interests of the child.
    4. Matters that may be dealt with by way of a parenting order are:

(a) the person or persons with whom the child is to live;
(b) the time the child is to spend with any other person or persons;
(c) the allocation of parental responsibility for a child (whether it is to be shared or whether it is to be sole parental responsibility);
(d) if two or more persons are to share responsibility, the form of consultations about that responsibility;
(e) the communication the child is to have with another person or persons;
(f) maintenance of a child;
(g) the processes to be used for resolving disputes about terms or operations of the plan (example attending mediation);
(h) the processes to be used to a change in the plan;
(i) any other aspect of the care, welfare or development of a child.

  1. If there is a parenting order in force in relation to a child, the order may include a provision that the order is subject to any parenting plan that the parent subsequently enter into.
  2. It is desirable to include in any parenting plan or order that deals with a form of consultation in relation to decisions to be made in the future and the form of dispute resolution to be used in avoiding future conflict and a way to change any order or agreement in the future.
  3. Programs are available to assist in relation to making a parenting order or parenting plan, including programs such as the Relationships Australia “Keeping up Contact” program.
  4. In the event that any matter proceeds to Court, the Court must have regard to the terms of the most recent parenting plan or order when making a parenting order if it is in the best interests of a child to do so.

Questions or Queries

If you have any questions or queries about this fact-sheet, or wish to discuss its contents further, please do not hesitate to Contact Us or contact your family law solicitor at Journey who will be more than happy to assist you.

Property settlement family court

Valuations of Assets in Property Settlements

The Court has a 4 step process in assessing property distribution.

The first is that the parties assets are to be calculated. This includes all Superannuation, and the assets of one party or both parties, whenever it was acquired.

The second step is to assess contributions to those assets before, during and after co-habitation. (Section 79 of the Family Law Act)

The third step is to assess the parties future needs under section 75 (2)

And after adjustments for each of contributions and future needs, the fourth step is to assess whether the proposed Orders are fair and reasonable and it is here that the Court looks at such things as the proportions of actual property and Superannuation that a person receives.

So the first thing that a Court will do, or for that matter, Solicitors who are negotiating a property settlement must do, is determine the value of the assets of the parties.

Furniture

Often people make claims that the furniture “in the other person’s hands” is worth tens of thousand of dollars whilst the person who has the furniture will point out that the furniture is second hand, not of top quality in the first place, and would probably only fetch $2,000 or $3,000 in a garage sale. The first person is usually valuing the property or replacement value whilst the second person is valuing the property on its current sale value. Who is correct?

The Family Court seeks that furniture and chattels be taken into account at their current sale value, or second hand value and not at the replacement value so the correct value is the garaging sale or trading post or auction value.

The Home

Many times the value of the home is in dispute between the parties and they will each come to their Solicitors with confliction Real Estate Agents Appraisals that may differ by tens of thousand of dollars. Of course, the true value of a property is what someone is prepared to pay for it but if the property is not to be sold then it is important that a figure be reached at a valuation with which both parties can be content.

One way to do this is to obtain a number of valuations from reputable Real Estate Agents in the area, and take the average of all of the valuations as the value of the home for negotiation purposes. This can be very effective if, for instance, two appraisals are obtained by one party and two appraisals by the other party.

Another more costly way is to obtain a formal written valuation by a Registered Valuer. Either of these methods will determine the true value of the property to form the basis of negotiations.

Superannuation

Superannuation is always difficult to value similarly as it often has a much lower current value then its value will be at retirement age. There is a temptation for the person who does not have the superannuation to quote the figure that the other person could expect to receive at, say, 65, as the value of the superannuation. The flaw in this argument would become apparent if you consider that the person who currently earns the superannuation is, say, only 45 and has to live another 21 years, earning at the current rate, to be eligible for the superannuation at age 66.

Establishing the real value of superannuation can be extra difficult when superannuation comes with many classifications. For instance, there may be an unrestricted, unpreserved amount which can be accessed by the person immediately whether or not he or she has retired from work and whether or not he or she has obtained the age of 55.

There may also be a component that is restricted non-preserved which may be accessible by the person upon their leaving that position but before they attain the age of 55.

Then there is the restricted amount which is preserved until various ages, maybe 55 or 65 and can only be taken upon retirement.

With all of those issues at stake, you can see why superannuation can become fraught and difficult to deal with.

There are forms available for your Solicitor to use to obtain information direct from the superannuation fund so as not to have to rely on the other party to provide details of the superannuation fund themselves. The forms, however, do require the other person’s signature as an authority to enable you to write direct to the super funds. Alternatively, we have a separate article on superannuation which has additional information.

It is fair to say that a true estimate of your likely award in Court or in negotiation of property can only be given when the values of the various items of property and the details of the superannuation have been fully canvassed.

Untying the Knot

Firstly, if you want to do your Divorce yourself, please read our article on DIY Divorce.

The only requirement in Australia is that your marriage has irretrievably broken down and that you have been separated for 12 months.

This is the actual piece of legislation. If your case is different, for instance you have been living separately under one roof, then ring us or contact us to discuss your circumstances.

Part VI—Divorce and nullity of marriage

48  Divorce

  1. An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.
  2. Subject to subsection
  3. In a proceeding instituted by such an application, the ground shall be held to have been established, and the divorce order shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order this page.
  4. A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

49  Meaning of separation

  1. The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.
  2. The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.

50  Effect of resumption of cohabitation

  1. For the purposes of proceedings for a divorce order, where, after the parties to the marriage separated, they resumed cohabitation on one occasion but, within a period of 3 months after the resumption of cohabitation, they again separated and thereafter lived separately and apart up to the date of the filing of the application, the periods of living separately and apart before and after the period of cohabitation may be aggregated as if they were one continuous period, but the period of cohabitation shall not be deemed to be part of the period of living separately and apart.
  2. For the purposes of subsection (1), a period of cohabitation shall be deemed to have continued during any interruption of the cohabitation that, in the opinion of the court, was not substantial.

Dispute Resolution

WHERE DO I START?

In the course of my daily practice I am often called upon to give advice quickly to men and women who find themselves unexpectedly in the position of either leaving their partner or having been left by their partner.

It is probably true to say that I sometimes get calls from people on the worst day of their lives.

I thought I would write about some of the issues that come up immediately after separation, often before either party gets to see a Lawyer and certainly before anybody has a chance to apply to the Court or reach agreement on issues.

Sometimes, because emotions are so raw people are not even speaking to each other.  Yet, it is under these circumstances that big decisions need to be made about who lives in the home, who is going to pay the bills, where are the children going to live and how often do the children get to see their other parent.

I will tackle each of these issues one at a time although they are by no means the only issues that crop up.  I hope the information below will be of assistance to anyone who finds themselves in this position.
Who Lives in the Home?

Many times the Father leaves the house and the children and their Mother stay in the home.  This is usually the sensible course of action as it is easier for one person to relocate than for several people to relocate.  Difficulties arise however, where neither party will leave the home and resulting conflict makes life hell for both parties and the children.

In these circumstances, it may be necessary for one party to apply to the court for an order granting them “sole occupancy”.  Decisions on this point are made by the Court based on the balance of convenience and fault, amongst other things.  Generally the person who has somewhere else to go and the money to fund the move will be asked to leave.  Unless he or she can convince the Court that there is no reason why they should leave.  It is not unusual for people to continue to live under one roof but separately if they are unable to afford alternative accommodation for one party.

Who Pays the Bills?

There is a time lag between a person first applying for Centrelink payments and Child Support and the date of the first payment.  This can leave one party in dire straits for a few weeks, especially if they do not have any funds in their own name.

In these circumstances, most people continue to take mortgage payments and other living expense from whichever salary funded them in the past.  It is usually only later, when Child Support payments are being made that the person living in the house assumes liability for the mortgage and outgoings.  The Court expects a person living in a property to pay for the costs associated with that property on the basis that the other parent will have other living expenses involved in renting.

If no agreement can be reached then it may be necessary to bring an urgent spousal maintenance claim to cover day to day living expenses.

Where Will the Children Live?

Now there is an obligation on he Court to consider shared care unless there is some disqualifying factor as set out in that section

FAQs About Children

Your Questions Answered

On these page we will list questions and answers that may be of help to you. We have made them up so to speak from a conglomerate of questions that we have been asked often over the years in our many years of combined experience in Family Law.But don’t be shy. Ring us or email us and ask us your question. Be reassured that we will never use your particular question on this page in any way.

Q. I have heard about shared parenting? Does this mean that I have the right to have the kids live with me half of the time?

A. The new shared parenting laws that came in in July 2006 do NOT mean that the child must live half time with each parent. However the recent case of Goode and Goode sets out how the Court must approach shared parenting. Go to the Children’s page on the toolbar to the left and it is all set out there, including a link to the entire judgement if you are feeling brave, and the relevant section of th Act.

Q. What do I do about Holidays? I just seem to get over one lot and it is time for the kids to go again. It is wearing me out!

A. At this time of year Children are sharing holidays between their parents. Remember to work together as best you can to minimise any stress the kids may feel at changeover times. As the children pile into your car and begin to excitedly tell you all of the things they did with the other parent, try not to react negatively.

Remember that each parent has a different style of parenting, That is Ok. Even if the other parent did something dumb and dangerous with the children, it is not OK to fly off the handle at the kids. It is not their fault. Hold your tongue if you can’t be enthusiastic about what they did and take it up with the other parent later when you have cooled down and where the kids can’t hear. Work on your reaction because that’s the only thing you can change.

Q. I have never had to worry about Family Law issues before, so I have no idea where to go for a comprehensive look at the way the system works. I want to learn more before I go near the lawyers.

A. Good idea! I think the Family Court web site is the best place to start, It even has a page for children! Go to the Family Court Web site

Q: How can I keep my costs down in Family Court proceedings?

A: In our experience there are a number of ways that a client can keep their costs down. The main thing is to remember that your matter will be time costed, so the less time your lawyer has to spend the cheaper it is for you. At Brisbane Family Lawyers, we offer a number of options for our clients that enable them to keep their costs down. For instance, where a client has access to the internet, we encourage them to complete the simpler Family Court and Federal Magistrate’s Court forms themselves. This saves them money as all we have to do is print the form and file it. This means that they are only paying for our expertise where it is needed, such as drafting more complicated documents and letters and attending mediation or Court.

Q: My spouse and I have just separated. Where can I get general information? I don’t necessarily think it will end up in Court. I just want to know where I stand.

A: In our experience there are a number of ways that a client can keep their costs down. The main thing is to remember that your matter will be time costed, so the less time your lawyer has to spend the cheaper it is for you. At Brisbane Family Lawyers, we offer a number of options for our clients that enable them to keep their costs down. For instance, where a client has access to the internet, we encourage them to complete the simpler Family Court and Federal Magistrate’s Court forms themselves. This saves them money as all we have to do is print the form and file it. This means that they are only paying for our expertise where it is needed, such as drafting more complicated documents and letters and attending mediation or Court. Another way is to keep calls short and to the point, and have questions that you want to know the answer to, written out when you visit or email your queries to us. Our philosophy is that we are partners with our clients in negotiating.

Q: My 19 year old says I should pay maintenance. How can this be?

A: ADULT CHILD MAINTENANCE The Child Support Agency handles the collection of maintenance for children up to the age of 18 years or until they finish Grade 12 whichever is the later. However, many people over the age of 18 continue onto University and continue to be supported by their parents during their tertiary education. The Family Court has power to order parents to contribute to the support of children over the age of 18 years if they are continuing in University Education. I often have enquiries from people about the responsibilities of parents in this regard. First off, it is a difficult question as to whether or not it is the child who has the right to claim maintenance or the parent with whom the child lives. Both parents should contribute to the child support but Family Court cases recently have developed strongly along the lines that a child should also develop some self sufficiency. The Court in a number of cases has made it clear that it is not reasonable.

Q: CHRISTMAS HOLIDAY CONTACT! How do others handle this?

A: Christmas Holidays are a time when many people have concerns about arranging contact with their children and the main resident parent. For the post part, I am happy to say, people are able to work out commonsense ways to share both the holidays and the actual Christmas period. Sometimes, however, people get into dispute over these issues. For people who have Court Orders, and who have already survived one Christmas holiday period, things will generally fall into place. For others, though, especially if it is the first Christmas since separation and there are no Court Orders, it seems difficult to know how to deal with everybody’s wishes. I am writing this column for people in that situation. The “biggy” is how to share Christmas Day. Some separated couples would rather avoid seeing each other on Christmas Day if at all possible. For them, an arrangement that sees the children with one of the parents on Christmas Eve and the other parent on

Q: I have a really grumpy Husband. Can we still have mediation?

A: You would be amazed what mediation can do It is absolutely the way of the future. Of course if there is domestic violence where one of you is at risk of being bullied, or where there is an an imbalance of power. Otherwise, go with your feelings and get your lawyers to set up mediation ASAP.

Child Support

http://www.csa.gov.au/

Q: The Child Support Agency has me all confused. I would like to be able to learn more about the processes that I can use to make sure they assess my children’s level of support properly according to my own situation?

A: There is a lot to be learned from the Child Support Agency website. There are downloadable forms to use if you need to. You can always telephone the child Support agency on the numbers on your Letters from them. and also on the web page. Don’t forget to always quote your case number when you call or write to them.

Q: How do I change a child support assessment that I don’t agree with?

A: You need to contact child support and complete a form that asks them to consider changing the assessment. There are 9 grounds on which you can rely. Send the form to CSA and they will send it to your partner for response. The case officer will then arrange an appointment to see you both or talk to you on the phone and will make a decision. IF you are not happy with the decision, you may appeal to the Child Support agency. If you are still not happy, then and only then can you take the matter further. Check the form HERE on the CSA website.