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Why a divorce lawyer considers arrangements for children when completing your divorce application

The Family Law Act provides that a divorce order will not be ordered unless the court is satisfied that, amongst other things, that proper arrangements in all the circumstances have been made in relation to the welfare of any children of the marriage who have not yet obtained the age of 18 years old.  Where the Court has concerns as to the arrangements for any children involved, it is able to adjourn the divorce proceedings until the Court is satisfied proper arrangements have been put in force. This concern of the Court may be met by obtaining a report from a family consultant appointed by the Court. It may be the case that where there are children under 18 years involved, the parties will have already commenced parenting proceedings with the Court. If so, the Court may find that is sufficient enough to determine that proper arrangements are in the process of being made or could make an “alternate declaration”. An alternate declaration means that although the Court has found the arrangements for the care of the children are not proper, in all the circumstances of the case there are grounds still to proceed with the divorce. However, this will not always necessarily be the case and as such you should seek advice from a divorce lawyer. [...]  READ MORE →

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Separation Lawyer on Gaining Sole Use and Occupancy of the Family Holiday Home

The power of the Court to make an order for sole use and occupancy derives from s 114 of the Family Law Act. A separation lawyer can assist you to put forward or defend this application that would allow a party to live in the property to the exclusion of the other party.

In the case of Belcher & Gardener [2019] FamCA 205 (5 April 2019) the husband brought an application for sole use and occupancy for the holiday home (“the holiday house”) that was registered in the wife’s sole name.

The husband and wife were married for 24 years when they separated in July 2018. The parties had four children, two of whom remain living with the wife in the former matrimonial home. The husband vacated the former matrimonial home and was renting a one-bedroom apartment with his cousin. [...]  READ MORE →

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How a Divorce Lawyer can assist when you have been married for less than two years but seek a divorce

A divorce lawyer will be unable to lodge your application for divorce orders if you have been married for less than two years unless you satisfy the counselling requirement. Parties married for less than two years must provide a counselling certificate with their divorce application in order for it to be considered by the Court.

What is a counselling certificate?

A counselling certificate must be signed by an approved counsellor. This certificate sets out that the parties with the counsellor’s help have considered reconciliation without success. [...]  READ MORE →

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Divorce Lawyer Explains Resumption of Cohabitation

Once a divorce lawyer has proved that you and your former partner have separated, your divorce lawyer must then prove to the court that there is no likelihood that your cohabitation will resume. Resumption of cohabitation involves the re-establishment of the relationship to the point that it reverses the separation.

What happens to the 12 months separation if you and your ex-partner try to make things work again?

The Family Law Act promotes reconciliation where possible. For this reason, Section 50 of the Family Law Act permit couples to resume cohabitation during their 12 months separation however it must only be for one intervening period of less than 3 months for it not to “re-start” the 12 month separation period. [...]  READ MORE →

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Unjust Child Support Assessments: A Child Support Lawyers Guide

The Child Support Assessment Act allows the Registrar to change a child support assessment if the assessment of child support results in an unjust and inequitable level of financial support being paid. Child support lawyers can challenge a child support assessment on limited and specified grounds which can include:

  1. The circumstances of either parent’s income, property or  financial resources
  2. The earning capacity of either parent
  3. The costs of contact for either parent
  4. The expenses of the child or children including in some circumstances their education expenses

Some of these grounds are considered below.

1. Income, Property and Financial Resources

A common issue concerning the income, property and financial resources of a parent is when the income of one parent is significantly higher or lower than the amount recorded in the actual assessment. [...]  READ MORE →

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Domestic Violence and Family Law

Domestic Violence can affect people of all ages, socioeconomic and demographic groups and unfortunately can often go unreported particularly when it occurs during a relationship with a spouse or partner. However it is not uncommon for historical and current domestic violence to come to light particularly in circumstances of a family law separation. In June 2012, the definition of family violence was amended to include other behaviours that constitute family violence.

The Family Law Act defines Family Violence as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful”. The legislation includes behaviours such as stalking, repeated derogatory taunts, intentionally damaging property, causing death or injury to an animal and unreasonably denying a family member of their financial autonomy. With respect to children, the legislation also states that “a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence”. [...]  READ MORE →

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Who Can Access My Family Court Records?

Like other family law lawyers, I am often asked whether non-parties (persons that are not directly involved in the family law litigation) are able to access the Court records relating to the case.

Documents filed in a family law case (and other documents relating to the case) are held in a Family Court case file.  This information is protected under the Family Law Act 1975 and the Family Law Rules 2004.  For example:

  • Rule 24.13 of the Family Law Rules 2004 limits those who are allowed to access the Court’s records in family law cases;
  • Section 121 of the Family Law Act 1975 limits the publication of reports of family law proceedings and of lists of cases. There are exceptions to this;
  • Family Law Judgments are reported by the Court in a de-identified form (for example, with pseudonyms replacing the parties’ real names).

There are also exceptions to the restrictions to a Court file, including research (Regulation 24.13(1)(d) Family Law Rules 2004) or by the Australian Taxation Office (Commissioner of Taxation & Darling (2014) FLC 93-583). [...]  READ MORE →

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How the Court deals with a significant financial contribution where the property value soared after rezoning

With the fluctuating property market and endless residential rezoning, how the Family Court deals with property introduced by one party to the relationship that has dramatically increased is sure to be a recurrent theme for separating couples.

Background Facts

In one recent case of Jabour, where the parties had been married for a long period and had raised three adult children this circumstance arose.

When the parties first got together the husband owned a 50% share in three blocks of land which he had purchased from his father in 1975 for $26,000. [...]  READ MORE →

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Domestic Violence Lawyer

Sadly, domestic violence is frequent in many relationships. It can have incredibly traumatic long-term effects on a person and once it has occurred, it quickly falls into a common pattern. However, domestic violence is a serious criminal offence and is neither justifiable nor acceptable. If you are a victim of domestic violence, a domestic violence lawyer at Matthews Folbigg Lawyers can provide you with the legal advice necessary to ensure your protection.

What is domestic violence?

Domestic violence can take many forms. Some of the most common types of domestic violence that a person can experience include: [...]  READ MORE →

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Property Settlement Agreement

The law encourages parties to negotiate and reach an amicable agreement as to the division of property following separation. If you have come to a Property Settlement Agreement with your former partner then you may wish to formalise this by entering into a binding property settlement agreement.

Sometimes parties come to an agreement without having properly considered the nature and effect of their agreement.

When negotiating a Property Settlement Agreement some things to keep in mind include the following:

  1. Property Settlement Agreements differ depending on your particular set of circumstances.
  2. A fair Property Settlement Agreement may depend on the length of your relationship or marriage and this is just one of the factors to be considered.
  3. There may need to be an adjustment for financial contributions made prior to the relationship by either party.
  4. There may need to be an adjustment for one of the parties’ future needs such as their age, health, ability to work and their earning capacity.
  5. There may need to be an adjustment in favour of the party who has the greater care percentage of any children under the age of 18 years.
  6. There may be additional adjustments required for any loans to the parties from one of the parties’ parents or family members. You may also need to consider the nature of any gifts from either parties’ parents or family members.
  7. There may need to be an adjustment for any inheritance received by a party and considerations need to be had for when the inheritance was contributed to the relationship
    i.e. before, during or after the relationship and/or marriage.
  8. You should consider any tax consequences such as capital gains tax and there may be a need for particular advice from your accountant or a financial planner.

It can be difficult to navigate and consider the matters above on your own and how they apply to you and your family. As such, it is important to get the right advice when negotiating a Property Settlement Agreement.  We recommend obtaining advice from an experienced and knowledgeable lawyer that specialises in Family Law matters. [...]  READ MORE →

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The Changing Stigma Associated with Signing a Prenuptial Agreement

The idea of a binding financial agreement, commonly known as a prenuptial agreement has traditionally been associated with a negative and unromantic stigma; often automatically suggesting that the individual seeking the prenup is already having doubts about the relationship.

This stigma however is dwindling away with more millennial couples now seeing the positive side to prenuptial agreements. Statistics have illustrated a rise over the past two decades of the median age of couples marrying for the first time.  More individuals are now entering into relationships with existing assets including real estate and established businesses. Prenuptial agreements are more often being viewed by such individuals as analogous to buying insurance. No one buys insurance with the intention of crashing their car or having their home robbed, they purchase it for peace of mind just in case it happens. Likewise, parties don’t get married and enter a prenuptial agreement with a plan to get divorced; it is just insurance in the event that things don’t go to plan. [...]  READ MORE →

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Divorce Lawyer Parramatta Explains the Requirements for a Binding Prenuptial Agreement

Why it is important to speak to a divorce lawyer Parramatta

When formulating a Binding Financial Agreement, commonly known as a prenuptial agreement,  there is no requirement for Court approval and only independent legal advice is necessary in the execution of the prenuptial agreement. It is advised that you speak to a specialist divorce lawyer Parramatta who is well informed of the particular compliance criteria for a binding agreement to be formed.

Prenuptial agreements are very complicated and require strict compliance with legislation for the agreement to be valid. Appropriate legal advice from a divorce lawyer Parramatta is vital, as in the event that parties do separate and wish to enforce the agreement, the Court has the power to set it aside as invalid and unenforceable if it was not properly executed in accordance with certain criteria. [...]  READ MORE →