FAQs 2017-07-20T14:29:30+00:00
What is evidence? 2017-07-20T14:06:45+00:00

Evidence is information that the court looks at in understanding and ultimately determining a matter.

In a family law matter there a number of different pieces of evidence that the court will look to:

Affidavits by you and possibly supporting witnesses. Affidavits are sworn written statements of fact. Affidavits are used to support your wishes as to what Orders the court can make. Your solicitor will help you draft your and any supporting affidavits. Your affidavit must comply with court evidence rules.  Anytime you submit evidence to the court there are important considerations to take into account regarding your matter from both a strategic and practical perspective. Therefore it is very important to talk to a solicitor before submitting anything to the court.

Valuations: Valuations of any property, businesses, chattels and superannuation may be required from the court.  The court has special rules about who can value assets and the process involved in obtaining these valuations. Your solicitor will assist you in this process.

Financial Statement: Your financial statement is a document which sets out a person’s income, financial resources, assets and liabilities.

Expert witnesses: The court may order that an Expert Witness is called in. Expert Witness are professionals in other fields that can make an assessment and then provide evidence about a particular issue. For example, a superannuation expert may be brought in to provide evidence on a complicated superannuation issue.

Subpoenas: If you are unable to gain disclosure information, for example, because of confidentiality issues you can apply for a Subpoena. There are three types of subpoenas:

    • o Subpoenas to produce documents;
    • o Subpoenas to give evidence;
    • o Subpoenas for production of documents and to give evidence.
I have been left out of a Will, what can I do? 2017-07-19T14:03:28+00:00

If you think that you have been left out of a Will, the Will maker may not have made ‘adequate provision’. In these cases, the court can step in and make an award from the estate.

A case (Brennan v Mansfield & Ors [2013] SASC 83) was one of the first cases of a will for a person in a same sex relationship. But what makes the decision more interesting is the discussion about what amounts to “adequate provision”.

‘Adequate provision’ is dependent upon a variety of factors including the size of the estate, the terms of the deceased’s will, the nature of the relationship between the deceased and the applicant, other beneficiaries of the estate, the applicant’s financial circumstances and the deceased’s intentions.

If you want to draft or redraft a Will or you believe that you have been left out of a will contact one of our estate planning lawyers today.

What happens to my kids if I die? 2017-07-19T13:58:17+00:00

It is a comforting thought to know that there are arrangements in place for your children should you suddenly pass away. We have a lot of new families who ask us to write up their Wills after their first child arrives. It is a great assurance to know that your intentions are documented should something unexpected happen.

You can appoint a person over the age of 18 to be a guardian for your children. This person is referred to as a ‘testamentary guardian.’ The appointment of a guardian has to be done in accordance with the laws of the state of territory in which you reside otherwise it will be ineffective.

There are more difficulties to overcome if you are separated from the child’s other parent, and you would like to appoint someone else apart from the surviving parent as the children’s guardian.

Alongside giving the responsibility to care for the day to day needs and decisions regarding your children, your children’s guardian you are giving them long term responsibility for the long-term care and welfare of your children.

If the testamentary guardian is appointed, the guardian then has rights and duties subject to the Family Law Act. If there is ever a dispute regarding the appointment of the guardian or the care of the children an application can be made to the court. The court will then consider what is in the best interests of the children.

Your instructions on who cares for your children in the event of your death is a different consideration to who controls your finances and how they will be distributed to your children. You should consider whether the guardian should have access to financial assistance for your children through your executor and/or financial reimbursement. You can appoint different people or the same person to be your executor and testamentary guardian.

When discussing how your finances should be controlled in the event of your death and an appointment of a guardian you need to consider your children and the guardian’s future needs including housing, education and medical expenses.

You may wish to leave a statement of wishes to your executors. While this is not a legally binding document, it does document your wishes and can be used as evidence in court if there is ever a dispute. Your statement of wishes can also include who you would like to look after your children if you’re appointed guardian cannot begin their role immediately after your death.

If you would like to get a Will, drafted or change your existing will to include a testamentary guardian you should contact one of our estate planning lawyers today.

Can I protect my inheritance? 2017-07-19T13:36:47+00:00

If you have received an inheritance before separation, then it may be included in the asset pool as the court looks at the assets at the time of separation.

There are of course exceptions to this; for example, if you have received your inheritance in the form of a testamentary trust you may be able to exclude this from the asset pool.

If you are would like to protect your inheritance or are worried about the effect it may have on your property settlement you should contact one of our solicitors to discuss the options available to you.

Trusts – good idea or just way too complicated? 2017-07-19T13:30:33+00:00

A trust is a way of controlling and protecting assets. There is a legal relationship between the trustee (who administers the trust) and the beneficiary (the person who receive the money or assets). The Trustee has a legal obligation to look after the trust; this can often mean investing or using the money wisely with the beneficiary’s interests in mind.

The person who sets up the trust is called the settlor. This person is usually unrelated to the party or family and will not be a beneficiary of the trust. If a trust is established through a Will, the settlor is called the testator.

The terms and conditions of the trust are set on in a Trust Deed. This is a legal document which specifies:

  • Who the Trustee is;
  • Who are the beneficiaries;
  • When and how the beneficiaries are to receive benefits from the trust;
  • What the trustee must consider in administering the trust;
  • Any other obligations or powers the trustee may have.

If a trust is to benefit a person with a severe disability this person is called the principal beneficiary. In these circumstances, the beneficiaries of the trust are called residuary beneficiaries.

A trust deed may also name an appointor, an appointor is someone who is independent from the trustee and has the ability to make changes to the terms of the trust including to appoint new trustees or beneficiaries. In most cases the appointor will be a close relative of the principal beneficiary.

The property which the trust consists of is called the capital. From there the trust can earn an income i.e. though rent, interest, dividends etc.

A discretionary trust is a trust which gives the trustee power to decide who receives a benefit from the trust and to what extent. In a discretionary trust a trustee must consider all the possible beneficiaries but has no obligation to the then distribute benefits to all beneficiaries.

A testamentary trust is a trust set up under a Will. When a person creates a will they are called the testator. At the time of death any property owned by the testator is known as their estate. Their will then appoints an executor to administer the estate when the testator dies. If a trust is created under the will, a trustee will also be appointment this person may be the same person or different person to the executor. The trustee has an obligation to act in the best interests of the trust’s beneficiaries.

The Trustee has the obligations to duties to do the following:

  • to implement and manage the trust in accordance with the deed;
  • to manage the trust with the beneficiaries in mind. This includes spending, investing and otherwise using trust property to the benefit of the beneficiaries;
  • to avoid unnecessary waste or expense of trust property;
  • to seek professional advice regarding the management of the trust;
  • to keep accurate and professional accounts of the trust’s assets and liabilities, income and expenditure and make it available to the beneficiaries if necessary.

The trustees also have rights attached to the management of the trust:

  • to have reasonable trust-related expenses paid from by the trust;
  • If they are in doubt of their entitlements to the trust they are able to the apply to the supreme court for advice and directions. This can especially apply in cases where there has been a breach of the trust or another abnormality has arisen;
  • to gain compensation for the work they do from the trust. In many cases the deed will specify the form and sum of compensation to be paid to the trustee.

If they can no longer continue their responsibilities as trustee, to appoint additional or replacement trustees.

The Trustee Act 1925 (ACT) outlines the various rights and obligations of trustees.

I’m a beneficiary what are my rights?

The trustee has an obligation to the beneficiaries to administer the trust in accordance with the deed. The beneficiaries have the right to express their wishes and ask the trustee for assistance, but they cannot compel the trustee to make certain actions unless the deed allows it. The beneficiaries have the right to ask for an account of the trustee but are limited in questioning the reasons why a particular decision has been made by the trustee. If the beneficiaries believe that the trust has been mismanaged an application to the court can be made.

At the end of the day beneficiaries can expect to benefit from the trust. However it is important how the trustee will manage the trust in both the long term and short term.

Otherwise, the beneficiary can expect to benefit from the assets in the trust, but the trustee

Are Trusts taxed?

For tax purposes a trust is treated as a separate legal entity and as such has its own tax responsibilities. Trustees have an obligation to submit tax returns and pay tax just as a normal person would. Trusts are no entitled to the tax-free threshold and higher rates of tax may be applied. The trustee has the power to pay tax from the trust’s assets. It is important that you seek professional advice regarding your trust’s tax responsibilities as both the trust and the beneficiaries can be liable to pay tax.

How much does it cost to manage a trust?

Like any business there are costs involved in managing a trust. These include initial start-up costs, ongoing accountant costs and ongoing legal costs. These are ongoing costs and something that you should talk to a solicitor and accountant about prior to setting up a trust. There has to be enough capital to both establish the trust and then continue to maintain the trust in a way that will benefit the beneficiaries.

 

What is a family trust? 2017-07-19T08:47:41+00:00

A family trust (also known as a discretionary trust) is a way to control and protect a family’s assets and/or conduct a family business.

A trust is usually set up by a member of the family and can be used to protect the family group assets from liabilities, and a family trust also allows families to pass on the group assets to future generations relatively easily. Other benefits of having a family trust include certain tax benefits, asset protection and the clarity of avoiding challenges against certain assets in the event of the death of a member of the trust.

The terms and conditions of trust, including a list of its beneficiaries, are written up in the form of a deed. Once the deed has been drafted and then finalised, the trustee or trustees will then sign the deed.  Once signed the trustees are legally responsible for managing the trust’s assets.

If you are interested in establishing a family trust or you have a question about the management of a trust you are involved in contact our expert estate lawyers today

What is a Superannuation Death Benefit Nomination? 2017-07-18T15:44:14+00:00

Unlike the house or the family farm, superannuation is not an asset that you can just leave to someone in your will. Instead, it is a trust.

You can choose who gets your superannuation in the event of your death through a superannuation death benefit nomination. The rules of a death benefit nomination are provided by your superannuation fund.

A nomination can be either a non-binding or binding nomination. In the event that a death benefit nomination is not provided or not binding, who received your superannuation is up to the discretion of the trustee. If you have a self-managed super fund this could be a more complicated process and you should speak to a solicitor to make sure that your nomination is legally binding.

Whilst what your Will says about your superannuation may have some influence if the issue was to go to court, it is important to note that your Will can not replace a death benefit nomination. In fact in many cases a persons Will has had very little influence over how the court has distributed a deceased person’s superannuation benefits

In order to make sure that your wishes are carried out in the event of your death you should complete a binding superannuation death benefit nomination and a well drafted estate plan. Having a solicitor look over your estate plan is a great way to ensure that everything is properly in order and in line with your wishers.

Contact one of our estate planning solicitors today if you would like to start an estate plan or talk more about death benefit nominations.

Do I need an Estate Plan? 2017-07-18T15:38:04+00:00

Getting an estate plan is an important step in making sure that your legal and financial affairs are in order.

Having a solid estate plan means that in the event of your death, your finances and assets are distributed in line with your wishes. If you don’t’ have an estate plan, your estate will be distributed in line with the rules of intestacy, but if you have a will, your estate will be distributed in line with your wishes.

What is an estate plan?

An estate plan involves the following documents:

  1. Will – This is a document which sets out how you would like your assets distributed in the event of your death. A Will can be a very straight forward or a very complicated document depending on the size and complexity of your estate and how comprehensive you would like your will to be.
  2. Power of Attorney – A power of attorney is a document which appoints another person as your decision maker in the event that you become temporarily or permanently disable and are no longer able to make decisions for yourself. You can appoint a power of attorney to step in to make decisions about your legal matters and medical treatment. These decisions can be made by the same person or two or more different people in agreement.

An example of this would be if you had a car accident and were placed in a coma. Your power of attorney would be able to make decisions about your medical treatment on your behalf.

  1. Testamentary Trust- this is a kind of trust which works together with your will. A testamentary trust puts in place ongoing control of your assets after your death. You can use a testamentary trust to control when and how your beneficiaries get your assets for example when your children turn a certain age.

Other things that your estate planning lawyer will help you consider including your superannuation and associated death benefits, insurances and other financial affairs which you need to manage and plan for.

What is an executor and do I need one?

The executor of your estate is the person you appoint to manage and distribute you estate after your death. Your executor will administer and carry out the terms` set out in your will and in the best interests of the beneficiaries of your estate.

If you would like to start drafting an estate plan or have been named as an executor in someone else’s Will contact our offices today to speak to a solicitor in our estates team.

What if a loved one never left a Will or I have been left out of their Will?

Our lawyers are not only great at drafting estate plans they are also experts at dealing with or contesting a deceased estate.

The death of a loved one can be a very emotional and stressful time, even more so when issues arrived from the deceased’s estate. In these circumstances, we can discuss a variety of different options and find a pathway that suits you and your family’s interest best.  Estates can often be more straightforward than people automatically assume and having a friendly and approachable expert on your side can make even the most complicated matter seem straightforward.

What is Domestic Violence? 2017-07-18T15:28:56+00:00

Domestic violence (also known as family violence) constitutes a vast spectrum of behaviour. Both physical and psychological violence is deemed to be domestic violence.

The relevant legislation in the ACT is the Family Violence Act 2016 (ACT). Recent changes to the legislation now mean that the definition of family violence is broader than ever before. Family violence extends far beyond physical violence or verbal abuse. Family Violence includes any emotional, psychological or financial abuse. Any behaviour which makes you or your children feel unsafe is likely to constitute as family violence.

The ACT Magistrates Court determines Family Violence Orders (these were previously known as Domestic Violence Orders).

Every family violence matter is different and as such family violence orders can include a variety of different orders which prevent certain actions. Actions which can be controlled or prevented include;

  1. Preventing a person from approaching another person or place,
  2. Preventing a person from being within a particular distance from a certain person,
  3. Preventing a person from taking another person’s belongings or refusing to return belongings.

You can make a family violence application to the court or the police can apply on your behalf. Before making an application, it is advisable to contact a solicitor to discuss your issues in detail. Every matter is different, and it is important that you know the options available to you.

If you are considering applying for a family violence order, you should also talk to your solicitor about any family law issues that may have arisen simultaneously or consequentially.  Family Violence issues and family law issues are connected and legal action in one area can affect the other so it is important to have a good understanding of the law involved and how it affects you.

Can I get a costs order? 2017-07-18T14:05:49+00:00

If you and your former partner are involved in a family law dispute, you will both be required to pay your own legal costs. However, this is not a blanket rule, in some cases, you may be able to apply to the court for one party to pay the legal costs of the other party (known as party-party costs).

You can talk to your solicitor about options involving costs. In most cases you can file an application for a costs order at the registry or your solicitor can make an oral application for you on the day of your hearing.

What is a Conciliation Conference? 2017-07-18T14:02:42+00:00

A conciliation conference is a type of dispute resolution meeting where you and your former partner will try and reach agreement on financial and/or parenting issues.  A registrar of the court will conduct the conciliation conference.

A conciliation conference can be a very productive step toward reaching a settlement agreement. While the Registrar cannot enforce you and your former partner to come to an agreement, we encourage our clients to take advantage of the opportunity to attend a conciliation conference and to keep an open and positive mindset towards reaching an agreement.

Before the conciliation conference, the court will order you to produce and file certain documents including a financial questionnaire and a balance sheet and the normal duty of disclosure applies.

At the conference, the Registrar will give an outline of the conciliation conference process and identify the different parties’ issues within the dispute. The Registrar may also give an indication of the result that they believe the court might find should the matter go to court.

If an agreement is made at the conciliation conference, your solicitors will help draw up an agreement, and the Registrar will make orders, settling the matter.  If an agreement is not reached the matter may proceed straight to final hearing or the Registrar can enforce more procedural orders before progressing to hearing.

What do I do about an Abduction? 2017-07-18T13:57:54+00:00

If a child is removed, detained or concealed from one parent by the other parent than this may constitute a parental abduction. An abduction can occur whether or not the parents have separated and can involve other family members aside from just the parents.  Children can be abducted within Australia and internationally.

If your children have been abducted you should in the first instance contact the police and then seek legal advice from a specialist family lawyer.

If you believe that your partner or former partner may act to abduct your children you should contact a solicitor straight away to discuss your options.

Your solicitor can help you apply to the court to seek protection over your children and if necessary seek a recovery order. If your child has been abducted or someone is threatening to abduct them this can be a very stressful and worrying time, it is important that you act quickly and with the best legal advice possible.

What if there was a contravention? 2017-07-18T13:53:41+00:00

If you are the subject of family court orders and you think that you or your former partner may have breached those orders you should contact one of our solicitors to discuss your options. The law on contravention is complicated, and it is always best to seek legal advice before acting on or after a contravention; that way you can gain a clear understanding of your rights and responsibilities.

A contravention can constitute a variety of acts in Family law proceedings including if a party does not attempt to comply with the orders, or purposely breaches an order without a reasonable excuse.

If a contravention of the Orders has occurred there are different ways that this contravention can be addressed, depending on the severity of the breach and the relationship and situation of the parties. If the other party in your matter has made a contravention, filing a contravention application at the court is not your only option, you may be able to come to an agreement with your former partner without going to court.

If on the other you have contravened orders it is important that you seek legal advice as soon as possible. Penalties for contravention are up to the court’s discretion and can range from compensation in terms of more time with the children for the other parent, all the way up to a fine or imprisonment.

Who are these experts? 2017-07-18T13:49:21+00:00

While our lawyers are experts in Family Law, we don’t pretend that we are also experts in other fields such as psychology or financial planning. Expert witnesses are professionals who are experts in their given field. Experts can be called on in Family Law proceedings to report on a particular part of the dispute for example property valuations, medical conditions or complex superannuation matters.

Experts are valuable tools in the family law world. Whether the court orders in a psychologist to give evidence at your hearing or you are in the middle of collaboration, we suggest getting a superannuation consultant in; an expert can put a new perspective on your dispute and often help both parties come to an agreement on certain areas of the dispute.

Usually, you and the other partner can choose the expert to be used in your matter.  Experts can be used to provide written reports to the court or give oral evidence in court or to provide letters of advice or more informal advice in an out of court negotiation or collaboration.

If the court orders a report, you, your former partner and your children may be asked to attend an interview with the assigned expert. This will enable the expert to make observations before writing a report.

At all times an expert witness has a duty to the court to apply their expertise to the facts and to form an independent and truthful opinion based on their findings.

What is a child inclusive conference? 2017-07-18T13:38:00+00:00

When the court orders a meeting between a family consultant, the parents and the children of a family law dispute this is called a child inclusive conference. At this meeting your lawyer will not be included. As this is a court ordered meeting there is an obligation to attend.

The goal of the conference is to help the court understand your family situation and in particular the experience and feelings of your children. By gaining a better understanding of your family situation the court will be able to come to decisions about your parenting arrangements in the interim and may also be able to help you and your former partner reach an agreement.

Family consultants are court experts who specialise in children’s matters, they are usually psychologists or social workers.

After the child inclusive conference is finished the family consultant will compile their observations and advice into a document called a Memorandum to Court. This Memorandum is then treated as a piece of evidence to the proceedings.

What is a Family Report? 2017-07-18T14:36:12+00:00

In parenting cases, a family report can be a very important and useful document. A family report is an independent report written by a court-appointed family consultant. The report will give an assessment of what are the relevant parenting issues in your case and will give recommendations to the court about what is in the best interests of your children.  Whilst the focus of the report will always be what is the children’s best interests the court can direct the consultant to focus on specific issues in the report if needed.

You, your former partner and your children will be interviewed by the family consultant. The children (depending on their age) will be seen with the parents and separately. After the interviews, the consultant will consider all the evidence and circumstances involved in your dispute (including court documents already filed in your matter) and write up a report.

Things that the report may discuss include:

  • A brief description of each parent and child’s family history and any significant events that may have affected or may affect the dispute.
  • The parents desire to resolve the dispute.
  • The parent’s attitudes, willingness and capacity to adjust to change.
  • Your child/rens wishes and views regarding the separation.
  • What your relationship is like with your children and how the children view that relationship.
  • The difficulties, risks and effects that a change in circumstance could cause to your family unit.

If you are required to participate in a family report your solicitor will be able to talk you through what is involved. We also have our own in-house Family and Child Specialist Amy McGinn who may be able to assist you.

The Family Law Act and the Family Law Rules outline more information about what is involved in a family report.

What is Arbitration? 2017-07-18T13:16:14+00:00

Arbitration is another dispute resolution pathway in the family law world. Arbitration can be a good option for you to consider if you and your former partner have been unable to reach a decision through other pathways such as mediation or negotiation. Matters which can be heard by an Arbitrator include property and financial matters, parenting matters cannot be dealt with by arbitrators.

The Family Law Act defines arbitration as ‘a process (other than the judicial process) in which parties to a dispute present arguments and evidence to an arbitrator, who makes a determination to resolve the dispute.’

While waiting for a court hearing can be a timely and costly process, a decision through arbitration can be quick, efficient and cheaper than litigation.

There are many other positive aspects of arbitration including that the parties have a choice of arbitrator, that there is control over the level of formality, there is less delay than in the court system, Arbitration is cost effective and arbitration is subject to confidentiality.

Similar to the court process both parties will present evidence to the arbitrator and then the arbitrator will make a decision based on that evidence. An arbitration can be about one or more issues within the dispute and therefore does not have to cover all aspects of the dispute between yourself and your former partner. A decision made by an arbitrator has as much legal authority as a court order.

An arbitrator is a legal practitioner who specialises in Family law and has been trained and accredited as an arbitrator.

What is Collaborative Law? 2017-07-18T13:01:43+00:00

The Collaborative Law process is a form of alternate dispute resolution which puts you in control of your family law matter. Collaboration is a great option if you believe that you and your partner can cooperate and negotiate on amicable terms during your family law dispute.  Collaborative law is not about confrontation; rather it is about you and your former partner problem solving with the assistance of your lawyers to come to an agreement and understanding.

During the collaboration, you will partake in ongoing correspondence and a series of meetings with your former partner. During these negotiations, you, with the help of your solicitors, will identify what is important to both parties, what questions you need to answer regarding the separation, identify and evaluate the options available to you and finally negotiate your way to an agreement.

If for some reason you do not reach an agreement, you and your former partner do have the option to file an application with the court. However if you chose to do so the lawyers who assisted you with the collaboration will not be able to act for you in any litigation.

What is Mediation? 2017-07-19T12:52:43+00:00

Mediation is a dispute resolution process in which a mediator (an independent third party specially trained in helping the parties reach an agreement) facilitates communication between you and your former partner, with a view to reaching an agreement.

During a family law mediation, you and your former partner (and your legal representation if you have lawyers) will discuss both parties’ wishes and try to come to an agreement that suits both parties and any children involved.  Depending on the type of mediation, you can discuss all aspects of your dispute, including property settlement and arrangements for the children.  Sometimes specific issues are discussed, including those you may not necessarily think about, for example, who gets to keep the cat or the baby’s feeding and sleeping routines.

Unlike a Judge, the mediator is not able to and will not impose a decision on you or your former partner. Mediation is all about coming to an agreement together. It puts you in the control seat and enables you to make sure that all of your concerns have been addressed.  Good mediators generally have a high success rate and mediation is a commonly used process to resolve family law and estate disputes.

Where does a mediation occur?

Mediation is usually conducted at one of the offices of the lawyers or a neutral venue such as the Law Society conferencing rooms.

We like to host mediations at FGD so that we can take advantage of our great meeting rooms and modern office layout. We have flexible meeting room options which include private rooms for each party and larger rooms to facilitate group discussion and negotiations.

We also make pretty good coffee and provide any necessary refreshments free of charge.

Is mediation a one off thing?

Sometimes an agreement can be reached in a matter of hours or over the course of one day.

Sometimes you may have to attend more than one mediation in order to reach an agreement with your former partner.  The first meeting might be targeted at identifying what information each of you requires to reach an agreement.  In some more complex cases, mediations take place over several consecutive days.

What happens if you reach an agreement?

If you and your former partner reach an agreement at the end of your mediation, the solicitors or the Mediator usually draft a document reflecting that agreement.  That document can be done as a draft to be formalised later or can be formalised in a legally binding way at the end of the mediation, depending on the nature of the agreement and your circumstances.

It is certainly possible to have a legally binding and enforceable agreement prepared as a result of a mediation.

Why is mediation a good option?

It’s cost effective. Mediation is usually considerably less expensive than the cost of ongoing litigation.

It’s time efficient. Most Court Registries have a huge waiting list and a non-urgent application can take 12 months (or longer) to be heard. A mediation can occur as soon as the Mediator that you both agree on is available. Once you reach an agreement at mediation the process to have your agreement documented and formalised is straightforward and usually resolved within a week or two.

Less emotionally draining. Going to Court can be a very stressful and emotionally exhaustive process. A mediation has the benefit of being less formal and more relaxed than the litigation process.  It can also help you feel more in control of your own result than having the outcome determined by a Judge

It Works! Mediation has great results and a huge percentage of cases settle without having to go to Court.

It’s Confidential The information talked about in mediation with your lawyer is usually covered by legal privilege and cannot be used in later litigation.

FDR – What is it and why have I been asked to attend? 2017-07-20T14:11:14+00:00

FDR stands for Family Dispute Resolution. Section 10F of the Family Law Act gives a basic definition of FDR to be a non-judicial process where an FDR practitioner assists separated couples to resolve some or all of their disputes. An FDR practitioner is independent of all parties involved in the matter.

If you or your former partner have applied for a legal aid grant to go to Court, Legal Aid may ask you to attend an FDR conference first.

The FDR practitioner must first consider whether your matter can be appropriately dealt with through FDR. Things that will be considered include whether or not there is a history of family violence, the safety of each party, psychological and physical health of each party, the history or risk of child abuse.

There are certain confidentiality and disclosure requirements involved in the FDR process.

An FDR conference can help you and your former partner settle your dispute without the costly and timely process of going to court. Both the distribution of your property and the future arrangements regarding your children can be discussed.

At FDR both parties can talk about their positions towards a settlement, you and your lawyer can both attend the conference, and if required a lawyer can also be there to represent your children.

If you or the other party requests that the FDR process to be terminated, or your lawyer thinks it is no longer appropriate the process can be stopped at any time.

What is disclosure and do I have to provide it? 2017-07-20T13:58:14+00:00

Within the family law system, there is a duty to disclose all relevant information relating to your matter to all the involved parties and the court.

When you begin a family law matter regarding property, whether this is outside or inside the court room, you and your former partner will exchange disclosure documents. In a

What happens to my Pets? 2017-07-20T13:56:15+00:00

Pets are such an important part of our lives and often an even bigger part of the family. When your relationship breaks down, working out who keeps the pets can be almost as complicated and emotional as working out parenting arrangements.

But not everyone is a pet person, so if pets are a big part of your life it is important to get a family lawyer who loves pets as much as you do. Here at FGD we have pets at the office on a regular basis and we love having a giggle at a baby animal video or four!

Under Australian law, pets are considered property and in the eyes of the law are comparable to the car or fridge. That’s why you need a lawyer who thinks of your furry friend as much more than just the lawn mower.

The court has discussed pets in numerous cases, more recently in

I was in a same sex relationship – what’s the deal? 2017-07-20T13:54:20+00:00

Australia is yet to recognise same sex marriage, the

Can’t I just use a divorce kit? 2017-07-20T13:49:41+00:00

The quick answer is yes you can!

Once you and your former partner have been separated for 12 months or more, you can then apply for a divorce in Australia by using a divorce kit.

You can apply for a divorce either individually or jointly. Applying for a divorce is a separate application to your property settlement or arrangements for your children.

Using a divorce kit can be an option for many reasons. It allows you to do most of the paper work which means the whole process can be a more cost effective.

Once you fill out the application and get it witnessed by a lawyer or JP you can file your application at the court registry. You will need to pay a filing fee. This filing fee can be quite expensive, so you should talk to your former partner about paying half the filing fee if you are filing a joint application for divorce.

Once you file your application at the registry, you will be given a future court date. This is the date when the Registrar or Judge will look at your application. You may or may not have to attend this hearing. You can ask your solicitor whether they think it is necessary for you to attend or for your solicitor to attend on your behalf. They may grant the divorce at that hearing without issue or you may be asked to provide more evidence regarding your separation before the court grant’s your divorce.

Once your divorce is granted, you will receive an official divorce order from the court. You must then finalise your property settlement within 12 months of the date that your divorce became official. It is important to talk to a solicitor about your property settlement as soon as possible as everyone’s situation is different and property settlements can range anywhere between very complicated to relatively straight forward.

If you would like to apply for a divorce or you are ready to move on to a property settlement you should contact our offices.

The divorce kit can be downloaded from the

How much time do I have? 2017-07-20T13:48:05+00:00

The

What if I want to move away? 2017-07-20T13:42:59+00:00

Moving away can be a stressful and exhausting process at the best of times, let alone when you are in the middle of family law dispute or already have parenting orders in place.

Whether you are considering moving away for work or personal reasons, our lawyers can help you make the relocation process as easy and as smooth as possible.

 If you do already have a parenting arrangement and/or Court Orders in place, you should not move away without first seeking legal advice, otherwise, you may risk escalating your family law matter or contravening Court Orders.

There are many avenues to explore when reaching an agreement with your former partner about relocation, these include negotiation, mediation, collaboration and an/or application to the court.  At FGD we are very passionate about

I want to Adopt – what do I have to do? 2017-07-20T13:42:15+00:00

There are a number of reasons why

What is Child Custody? 2017-07-20T13:40:25+00:00

In the legal world ‘

I am a grandparent – can I be involved in family law proceedings? 2017-07-20T13:38:11+00:00

In many Australian families, grandparents play a significant role in the family unit and can sometimes be a significant care giver to their grandchildren.

If you are a grandparent and you do not believe that the rights of your grandchildren are being properly exercised, and you have been involved in the care, welfare and development of your grandchildren, then you may be able to file an application for orders at court.

Family Law recognises the importance of the relationship between grandparents and their grandchildren and how this relationship can foster a child’s welfare and development. The Family Law Act also recognises the rights of both biological and nonbiological people who are important in children’s lives.

If you believe it is in the best interests of your grandchildren to have access or have more access to you (their grandparent) or you would like to apply for custody of your grandchildren then there are a variety of options open to you both outside and inside the court room. These options include negotiation, mediation, collaboration and/or an application to the court for parenting orders involving both parenting arrangements and if needed parental responsibility.

If your grandchildren already live with you by way of an informal agreement with their parents, we can also help you formalise this agreement so that there is a certainty for all people involved.

What is parental responsibility? 2017-07-20T13:34:15+00:00

Under the Family Law Act each parent has ‘parental responsibility’ for their children unless a court order states otherwise.

Parental responsibility involves responsibility regarding your children’s long term welfare, care and development. Where your child goes to school, what religion they adhere to and whether they should undergo certain medical treatment are decisions that are covered by parental responsibility.

If you and your former partner cannot come to an agreement over an issue of parental responsibility, your solicitor will be able to help you begin the negotiation process and hopefully reach an agreement. If you are still unable to come to an agreement after alternate dispute resolution, you can apply to the court to make a decision regarding the particular issue in contention or to decide whether both parents should maintain parental responsibility.

What is a parental alliance? 2017-07-20T13:32:00+00:00

A

I am separating – what is going to happen to my children? 2017-07-20T13:30:11+00:00

The

If we split up, do we have to split our super too? 2017-07-20T13:28:17+00:00

When you and your former partner separate your superannuation is an important part of your property settlement and the state of your future finances.

The percentage split of your superannuation will depend on a number of circumstances including the total of your current superannuation, your ability to work during and after the relationship and your future needs. This means that if you have been the sole carer of your children during the relationship and as such unable to work fulltime and accumulate superannuation, you will not be left without any superannuation heading into your future retirement. If you and your former partner can reach an agreement about your superannuation outside of court your solicitors can help you formalise this agreement. If you are unable to meet an agreement through alternate dispute resolution than your solicitor will help you make an application the court.

If the superannuation fund that you and your former partner were involved in is a self-managed super fund (SMSF) things can be a little more complicated.

In a SMSF the individuals involved are both the trustee’s and the members. Whilst you must fulfil both roles you also must separate these roles. This is an important distinction and one that is even more important when couples are in the process of separating.

When a couple separates, superannuation is an important issue to be taken into consideration.  Since the introduction of the Superannuation Guarantee in 1992, the amount of money in superannuation is ever-increasing.  When the superannuation is a self managed superannuation fund (SMSF), another layer of complexity is added.

Your solicitor can help you come to an agreement that removes you from the fund and therefore removes the chance of unnecessary conflict with your former partner at a later time.

When considering a superannuation split (especially if it involves a SMSF) it is important to get expert advice as there can be both legal and tax consequences. The

I was in a de facto relationship – Can I still apply for a property settlement? 2017-07-20T13:23:27+00:00
What happens to our property if we separate? 2017-07-20T13:20:46+00:00

When determining a property settlement, the court must focus on what is ‘just and equitable’ for both parties. Beyond this, the court has broad discretion to determine property distribution, and as such, there is no set formula or ‘expected outcome.’

What if I have binding financial agreement?

If you and partner separate and have a

What is property and what will the court do with it? 2017-07-20T13:14:10+00:00

If you cannot agree, the court can make orders relating to the distribution of your property after a relationship breakdown.

While every matter is different and some property settlements are more complicated than others, the Family Law Act provides a basic framework which determines how every case should be decided. Keep in mind that there is no set formula to determine your property settlement. The court will make an order after it has heard all evidence regarding your matter and your solicitor will communicate your needs and wishes to the court. The court will then make a decision of what it believes is a just and equitable decision.

In family law, property involves all items of value relating to your relationship. All assets, liabilities and resources owned, shared and disposed of the following separation by you and your former partner will be considered.

When you put in a property settlement application to the court, you and your lawyer will fill out a financial statement and complete other legal documents which will disclose to the court all your property.

Including:

  • You bank account balances
  • Your house/s and your car/s
  • Any investments, shares or trusts that you are involved in
  • Any gifts or inheritances that you have received
  • Your superannuation
  • Any loans or other liabilities (including credit card debt)

What does the Court consider in making a property adjustment?

Your financial contributions to your relationship.

Your income during the relationship, the payment of day to day expenses, any gifts or loans from family, compensation claims and lottery wins will be considered, amongst other things

Your non-financial contributions

These include the care of your children, any homemaker duties or property improvements and the care of any other family member which meant that you could not work.

Your Future Needs

The court will look to your own and your former partner’s future needs. The future income streams and capacity of both you and your former partner will be considered. Your age, health, and your financial situation now and in the future and the needs of your children are major factors in considering your future needs. This means that if you are unable to work for health or childcare reasons in the foreseeable future, the court may consider this in making a property adjustment.

What will the court award?

The court can make a variety of different property orders depending on the adjustment it decides on. Your property settlement could include a lump sum payment, ongoing payments, the distribution of assets (including who keeps the family home or whether it is sold) or a superannuation distribution.

Each property settlement is different, and the court will not automatically reward any specific combination of the above. It is up to you and your solicitor to convince the court of what is just and equitable in your matter.

How much time do I have to apply for a property settlement?

If you are divorced, you must make an application for a property settlement within 12 months of the date that your divorce was finalised (you can find this date on your divorce order).

If you are not yet legally divorced then the clock for a property settlement has not yet started ticking and you can file an application at any time. Usually, the sooner you apply, the better.

If you were in a de facto relationship, you must make an application to the court within 2 years of your relationship breaking down.