Will legal will signing

Time you got your Will sorted?

Legal wills, Lawyer

Aimee South,  lawyer, is experienced in Will making  and Powers of attorney.

 

No one knows what’s around the corner.
If you die without a legal Will then the law decides how your property is divided amongst your family. Dying without a will may leave your loved ones in limbo or even missing out all together.

If your situation involves step children, de facto partners or ex partners, then you have more reason than most to get your financial ducks in a row before it is too late.

Imagine a scenario where your partner cannot stay in the family home just because you didn’t get around to doing your will.
Or your failure to make a will means your partner doesn’t have enough money to properly provide for your children.

Its important to do a will properly because it is the last thing your will ever say to your family. It tells them you care about what happens to them enough to take steps to have a valid will drawn up.

It is not expensive with the Journey Family Lawyers Wills process. We don’t cater for people who have huge estates and complex needs. But what we do offer is a sensible and uncomplicated process to get you signed up with a valid will as soon as possible after you call us. Call our lawyers today, and they will help you work out your needs. It will then  be prepared quickly and you can either come to an office to sign, or we can send your will to you with signing instructions.

Once it is done, you keep it safe and tell someone where it is. The whole process is quick and easy and costs not much more than a night out.   Call us and let us take care of it for you.

While you are here, why not get us to do an enduring Power of Attorney for you.

 

 

Defacto Couples

Property Proceedings in The Family Law Courts

Amendments to the Family Law Act commenced on 5th December 2008, enabling unmarried couples to seek resolution of property disputes in the Family Court of Australia and Federal Magistrates Court of Australia tamiflu dosing.

The Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 came into force on 5 December 2008. This Act creates a new Part VIIIAB of the Family Law Act and amends a number of other related Acts. Financial matters arising out of separation of de-facto couples can now be resolved in a Court exercising jurisdiction under the Family Law Act.

What is a “de facto” relationship?

A person is in a de facto relationship with another person if the persons are not legally married to each other, they are not otherwise related by family, and having regard to all of the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

A de facto relationship can be between members of the opposite sex or members of the same sex.

The circumstances of the relationship may include the duration of the relationship, common residence, a sexual relationship, financial interdependence, care and support of children, and public reputation (s. 4AA). There is no threshold requirement of cohabitation.

This is a broad test.  In the context of child abduction proceedings, the Full Court of the Family Court has interpreted similar (New Zealand) provisions widely.

A Court may make an order or declaration if the Court is satisfied that the period, or the total of the periods, of the de-facto relationship is at least two (2) years, or there is a child of the de-facto relationship, or if failure to make the order or declaration would result in serious injustice to the applicant (s. 90SB).

Orders that can be made

The Court may make such orders as it considers proper for the maintenance of a party (s. 90SE (1), for a declaration of an interest in property (s. 90SL (1)) and for alteration of property interests (s.90SM (1)). Part VIIIB (Superannuation Interests) is extended to apply to a de-facto relationship.

Third parties may be included in de facto property proceedings (in a similar way to the existing Part VIIIA).
The Court may make an order or declaration about the existence or otherwise of a de facto relationship (s.90RD).

Time Limits

Proceedings must be commenced within the standard application period, which is defined as two (2) years from the date of separation. Leave may be granted for a party to apply after the end of the standard application period, if hardship is established.

Participating Jurisdictions

Not all States have referred power to the Commonwealth. For parties to be eligible to apply, they must be ordinarily resident in a participating jurisdiction. Presently, this includes all States and Territories except South Australia and Western Australia.

If the parties are ordinarily resident in these States, then the laws of those respective States still apply.
In Queensland the Family Law Act will apply to the exclusion of Part 19 the Property Law Act 1974 (Qld). Queensland Courts will have no jurisdiction. (s.90RC).

For a Court to have power to make orders for alteration of property interests and for maintenance of a party, then either or both of the parties to the de facto relationship must meet the geographical requirement.

The requirement is that either or both of the parties were ordinarily resident in a participating jurisdiction when the application for the declaration or order was made (or when they separated), and both parties were ordinarily resident in that jurisdiction during at least a third of the de facto relationship.

There is an exception to this rule if the applicant for the declaration or order made substantial contributions in a participating jurisdiction (s.90SK; 90SD).

Agreements

Financial Agreements can be made before, during and after the de-facto relationship (s90UB, 90UC, 90UD). Financial Agreements are binding if the requirements in s. 90UJ are met. Those requirements are precisely the same as those for Binding Financial Agreements for Married couples.

Agreements can be set aside (in the same way as present Binding Financial Agreements). A Court will apply a strict interpretive approach and strict compliance requirements should be applied.  Failure to comply with the requirements will result in the agreement being set aside.

Recognized Cohabitation and Separation Agreements made under Part 19 Property Law Act (prior to the commencement date) remain binding provided that a State Court could not make an order that is inconsistent with the agreement.

Parties separated prior to commencement

Parties to a de facto relationship that broke down before commencement may choose for the new provisions to apply.  Such a choice can be made if (a) no final order in respect of the property or financial resources of the de-facto parties, (b) no Recognized Agreement made pursuant to Part 19 Property Law Act (Qld) has been entered into, or (c) that such an agreement has been entered into but ceased to have effect without any property being distributed or maintenance being paid.

The choice must be made in writing, signed by both of the parties to the de facto relationship, and each of the parties was provided with independent legal advice and there is a certificate evidencing such advice.
There are no provisions in the Family Law Act that could enable a State Court to compel a party to ‘opt-in’.  If proceedings have commenced (and provided the time limitation has not yet expired) both parties could agree to discontinue the State Court proceedings and re-commence in the Family Court or Federal Magistrates Court.

Key differences

Where parties have separated after the commencement date, recognized separation agreements under the Property Law Act will be ineffective. The only options are to either prepare an agreement that meets the requirements of the Family Law Act, or by way of consent order pursuant to the Family Law Rules.

If a recognized agreement is in existence, at least in Queensland, it will not have been able to deal with the maintenance of a party, or parties, to the de facto relationship. Fresh agreements might be required to cover the possibility of a maintenance claim.

If the time limit has not yet expired, spousal maintenance claims might be able to be made even where there is a final division of property. In any event, a Court may make such orders for maintenance of a party, including lump sum orders, and orders for transfer of property to meet a maintenance liability, as it may consider appropriate.

Superannuation will be treated as property, and can now be split, either by agreement or by Court order. The full range of options previously available to Married couples can now be used, including provision of fixed based amounts, percentage splits, and splits during the payment phase. This includes self-managed superannuation funds.  Orders can now be made binding on Third parties.

The Jurisdiction of the Courts in Bankruptcy will be able to be utilized.

Most importantly, parties will have access to the Rules and Procedures of the Family Court of Australia and Federal Magistrates Court of Australia, with the benefit of individualized case management, early intervention dispute resolution processes and pre-action proceedings (for applications to the Family Court of Australia).

De facto couples with both parenting and property disputes will be able to have all matters determined in one Court. In most cases, this will mean a significant cost saving for litigants.

Further information

To assist in interpretation of the amendments, the explanatory memorandum to the Bill (as it was), and the Bill digest are both available on the Australian Parliament website

Urgent or interim Child Applications

When most Applications for Parenting Orders are filed in the Family Court of Australia or Federal Magistrates Court of Australia, there is usually an Application for Interim Orders contained with it. This is because, at the moment, it’s taking about one and a half years to two years for an Application for Parenting Orders to proceed to trial in the Family Court and about one year to one and a half years in the Federal Magistrates Court (at least in a Brisbane Registry). Steps are being taken by both Courts to try and speed that process up. But in the meantime, Interim Orders are likely to apply for a significant period of time.

Interim hearings are, by their nature, limited. There is no cross-examination of witnesses (the Court only looks at the Affidavit material provided by the parties). The hearings are limited to a maximum of two hours including reading time. Interim hearings are usually heard in the context of a number of hearings listed before a Federal Magistrate or the Judicial Registrar of the Family Court in one day.

Interim hearings are usually held about six weeks after the date of filing depending on individual circumstances. In the Family Court, a case assessment conference with a Family Consultant and a Registrar may have been undertaken and/or there may have been an appointment with a Family Consultant prior to the interim hearing.

In Interim Court hearings:

  1.  Cases are limited to two hours
  2.  The Court can not make or should not make findings of fact in contested as a general proposition
  3. There will be no cross-examination; and
  4. The Court will proceed just on the Affidavit material of the parties, any documents that are tendered and the submissions of the parties or their legal representatives.

The Approach taken by the courts:

Goode’s case says that the “status-quo” or “stability” arguments can no longer be made. It is not good enough for a Court on an interim basis to simply make a finding based on the available evidence and the uncontested facts of certain arrangements that have taken place post-separation and merely preserve those arrangements until a final hearing. In practice, this might mean that it is more likely that the Court will make Orders for equal time on an interim basis. 

The Family Law Act as it is now written says that there is a presumption of equal shared parental responsibility. That presumption can usually only be rebutted if there is evidence of abuse, family violence or, in an interim case, unless the Court considers it would not be appropriate for the presumption to be applied when making that Order, or it is simply not in the best interests of the child or children.

If there is equal shared parental responsibility, then the child or children will spend either equal time with each of the parents or substantial and significant time with the person with whom the child does not live. “Substantial and significant time” means more than just alternate weekends and half school holidays but does not necessarily mean equal time.

Having taken those relevant sections into account, the Court has indicated that an interim hearing the Court should follow the following formula:

  1. Identify the competing proposals of all the parties
  2. Identifying the agreed or uncontested relevant facts (these will be given the most weight)
  3. Identify the issues in dispute at the interim hearing.
  4. Consider the matters in Section 60CC (The section deals with the best interests of the children)  that are relevant and make findings about them if possible on the uncontested material (and this may not be possible)
  5. Deciding whether the presumption of equal shared parental responsibility applies. If it does not, finding on the available evidence that there is abuse of a child, family violence or it’s simply not appropriate to apply.
  6. If presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests.
  7. If the presumption applies and is not rebutted, considering making an Order that the child spend equal time, or substantial and significant time, with both parents.
  8. If equal time or substantial and significant time is not appropriate, then making such Orders are in the best interest of the child
  9. If the presumption of equal shared parental responsibility is rebutted and such other Orders that may be in the best interests of the child or children.

What sort of findings can the Court make on an interim basis?

It’s important to consider what sort of findings a Court can really make at an interim hearing. You will find it very unlikely that a Court will make a positive finding at an interim hearing about matters such as drug use, alcoholism or general allegations of neglect (unless really substantiated elsewhere). An example of what sort of findings the Court might make on an interim basis is provided in Goode’s case and it is as follows:

  1. T attends school and J attends childcare on three days a week on Monday, Thursday and Friday from 8:30am to 4:30pm when the mother works.
  2. Since separation, the Father has been spending time with the children each alternate weekend from Friday afternoon until Sunday afternoon and with the child T on Monday afternoon and Tuesday afternoon each week.
  3. The Mother proposes that T spends one half of the school holidays with the Father and J spend block periods of four (4) consecutive days with the Father including two (2) such blocks during school holidays.
  4. T spends one half of the July school holidays with the Father.
  5. The Mother lives in the former family home and the Father lives with his parents close to the school, day-care and the former family home.
  6. The Father has the assistance of his parents to care for the children and works in his family business with them.
  7. The Mother conceded that there was no issues of risk to the children, the only issue was the amount of time that the Children should spend with the Father.

Conclusion – Is this a change or not?

It will remain to be seen weather on a day to day basis the Family Court of Australia and Federal Magistrates Court will change the way the make Interim Determinations in parenting cases.  While Goode’s case provides a new formula the outcome could well be exactly the same as it was under the old principals of Cowling applying the Family Law Act as it existed apply to 1 July 2006 parties coming to Family Law proceedings and Family Law practitioners will need to be aware though that if Orders are being sort that do not involve a child or children spending equal time or substantial time with both parents they will need to be a very good reason why such orders shouldn’t be made.