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What Does the Closing of the NSW-Victoria Border mean for my Family Law Matter?

The NSW Law Society published a COVID-19 update on 9 July 2020 providing some guidance to families and family law lawyers about the re-closing of the border between NSW and Victoria. The update is as follows:
With NSW-Victoria border closures in place, it’s expected that parties should cooperate and ensure the best interests of the child are addressed by complying with court orders. If strict adherence to parenting orders is not possible, it is imperative that any revised arrangements reflect the spirit of the orders. The Courts have previously issued information in relation to parenting issues that may be of assistance including: [...]  READ MORE →

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Can your Affair End in a Property Settlement? Family Law Lawyers Delve Into This

If you’re having an affair, something that you may want to consider is whether the person you are having an affair with can claim your property after the relationship breaks down.

Firstly, your family law lawyers will need to consider whether your affair amounts to a de facto relationship. Considerations include the duration of the relationship, whether you have lived together, whether you attend events together socially, and whether you depend on each other financially.

The case of Jonah v White (2011) considered whether someone you are having an affair with can amount to a de facto relationship. In this case, the Husband (H) had a 17 year long affair with a woman (Ms J). During the affair, H continued to live with his wife and three children. Family law lawyers for Ms J argued that the relationship she had with H amounted to a de facto relationship under the Family Law Act. [...]  READ MORE →

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Divorce Lawyer Explains section 114 Orders – Restraining Travel to Enforce Property Settlements

A divorce lawyer explains how the Family Court can impose restrictions on travel to ensure compliance with Family Court Orders.

In accordance with section 114 of the Family Law Act, the Family Court has the power to restrain a person from leaving Australia pending compliance with Family Court Orders, including final orders.

The Court will consider the following:

  1. A person’s freedom of movement, and
  2. The likelihood that the Order will not be complied with if the paying party’s freedom to leave the country is not restrained.

Ultimately, the Judge is faced with a balancing exercise and will consider whether the person’s compliance with the Orders outweighs their personal freedom of movement. [...]  READ MORE →

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How Binding Financial Agreements can let you Decide the Terms of your Property Settlement Agreement

A Binding Financial Agreement (BFA) allows couples to negotiate a property settlement agreement that suits their needs. Unless successfully challenged, it will  prevent the Family Court from dealing with your future property or spousal maintenance claims.

Binding Financial Agreements can be made:

  1. Before a marriage under a s 90B Agreement, also known as a “pre-nuptial agreement” or “prenup”;
  2. During a marriage under a s 90C Agreement – this is typically exercised during the period between separation and divorce; or
  3. After divorce under a s 90D Agreement.

A BFA can be drafted with your family law lawyer to formalise a property settlement agreement between you and your former spouse. It is an alternative means to going to Court which can be timely and expensive. The Court does, however, have the power to set aside a BFA  in certain limited circumstances. [...]  READ MORE →

Matthews Folbigg
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FAQs – How Our Divorce Lawyers are Responding to Covid

Chloe Elkerton, one of our divorce lawyers answers some frequently asked questions on how our family law team and the Family Court is responding to Covid.

Are you still seeing clients?

Yes, we are still seeing clients! Although our team is working from home at the moment, we have quickly adapted to the changes and have implemented the technologies to be able to provide you with advice via telephone or video conferencing. Face-to-face consultations with your divorce lawyer can also be arranged where necessary in our conferencing rooms which are spacious enough to allow for social distancing. [...]  READ MORE →

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Recent Family Court Case Sheds Light on What Initial Contributions are Really Worth?

On 1 May 2020, the Family Court handed down the decision of Barnell & Barnell. This matter involved a wife’s separation lawyer seeking to appeal a final judgment based on the Court’s treatment of the husband’s initial contributions.

The husband purchased Property B in 1988 prior to the commencement of the relationship in 1995. While no valuation was conducted on the property as at the commencement of cohabitation, the current value was agreed to be $340,000.

Given the length of the relationship and consistent gifts of money from the wife’s parents, the wife’s separation lawyer argued that the overall contributions of the parties should be considered equal. The Judge disagreed and said that to do so, would be to give insufficient weight to the fact that Property B was unencumbered at the commencement of the relationship and has not since been improved by either party. As the value of Property B represented some 36% of the net property pool, the Judge held that the husband’s contribution must be accorded significant weight. The Judge made an assessment of contributions as 62.5% to the husband and 37.5% to the wife being a 25% difference in contributions to reflect the various contributions of both parties. [...]  READ MORE →

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Family Law Lawyers Explain Equal Shared Parental Responsibility

If either you or your partner’s family law lawyers have made a parenting application to the Family Court, there is a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. That is, both parents should have a role in making long-term decisions about a child such as where they go to school, decisions about the child’s health, the child’s religious and cultural upbringing or changing the child’s name.

If you believe that equal shared parental responsibility is not in the best interests of your child, your family law lawyers may be able to challenge the presumption. Depending on your individual circumstances, the Court may consider whether sole parental responsibility should be granted. This would result in one parent alone having the authority to make long-term decisions about the child. Below are some of the factors that the Court may consider when determining parental responsibility. [...]  READ MORE →

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Will Expected Inheritance Be Included in My Family Property Settlement Agreement?

An expected or future inheritance is an inheritance that one party is expecting to receive once the testator passes away. Will the Family Court take into consideration a future or expected inheritance in your divorce settlement? If you or your ex-spouse are anticipating an inheritance, say from an elderly parent, you may want to get some advice regarding how this may impact your property settlement agreement.

In the 1995 case of White & Tulloch the Court noted that the expectancy of inheritance will generally not amount to a financial resource to be considered in your property settlement agreement. The term financial resource involves some degree of “entitlement to, control over, or relative certainty of receipt of property”. On the other hand, a will has been described as a mere expression of intention at the time it was made. They may be revoked or altered and only have legal effect upon the death or the testator. In this case, the expected inheritance of an elderly parent was not included in the divorce settlement. [...]  READ MORE →

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The Bank of Mum and Dad – Gifts from your Parents and Property Settlement Agreements

The Australian housing market is difficult to break into for most first home buyers and many couples have looked to their parents for some assistance to get their foot in the door. For many, parents may provide assistance to their children by allowing them to live at home rent-free or contributing to their deposit in the form of a gift or loan.  In many cases, “the bank of mum and dad” is crucial to helping relatives to be able to buy their own home.

As it becomes more common for parents to provide financial support to the parties during a de-facto relationship or marriage, there is an increasing likelihood that these “third parties” may become involved in a dispute concerning a property settlement agreement between the parties if the relationship was to break down.  For example, where there is an argument as to whether money received by the parties (or either of them) was a gift or a loan to be repaid. [...]  READ MORE →

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Family Law Lawyers in Focus: Cassandra Bayliss

Cassandra BaylissCassandra is a solicitor in the Family Law area of Matthews Folbigg.

Cassandra joined the Matthews Folbigg Family Law practice group as a law clerk in early 2015 and was admitted to the Supreme Court of NSW in 2018, after graduating with a Bachelor of Laws and a Bachelor of Business and Commerce majoring in Human Resource Management and Industrial Relations. During her university studies, Cassandra was invited to join the Golden Key International Honour Society which recognises the top 15% of university students based on their academic achievements. [...]  READ MORE →

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The Basics of Getting a Divorce

Divorce is the process of terminating a marriage. After 12 months of separation, your separation lawyer can assist you to make either a sole application or a joint application for divorce. If you are making a sole application that is, applying on your own, your separation lawyer will be required to serve the application on the other party and must attend your divorce hearing if you have children under the age of 18 years. If you are making a joint application with your former partner, you will not be required to attend the divorce hearing. [...]  READ MORE →

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Family Lawyer in Focus: Kieran Ridley

Kieran RidleyKieran Ridley was admitted as a Solicitor of the Supreme Court of New South Wales in 2013 and as a Solicitor of the High Court of Australia in the same year.  Kieran is a graduate of Western Sydney University with degrees in Law (Dean’s Merit List 2012) and Business (Management).  Kieran also holds a Graduate Diploma in Teaching from Excelsia College and a  Graduate Diploma in Legal Practice from the Australian National University. Kieran is on the Family Law and Criminal Law Panels with the Legal Aid Commission of New South Wales, providing private legal representation. [...]  READ MORE →