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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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Reaching a Property Settlement Agreement through Family Law Arbitration

There are numerous methods aside from traditional Court determinations which parties can utilise when seeking to reach a property settlement agreement. Section 10L of the Family Law Act 1975 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.”

How do Arbitrations operate?

Arbitrations are available for property and financial matters and are voluntary. A matter may also be referred by a court order. They can take place before, during or after proceedings have commenced. [...]  READ MORE →

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Collectables and your property settlement agreement

Whether you collect postage stamps, designer handbags, books, art or cars, don’t underestimate the value of your little hobby when it comes to a property settlement agreement.

In the recent case of Isaacson [2019], Judge Wilson considered a property settlement agreement dispute between a former husband and wife, as to the value of the husband’s book collection. The husband alleged the book collection to be worth $183,905.00 and the Wife believed it to be worth $384,421.00.

Both parties sought to rely on their own “expert” evidence as to the apparent value of the book collection.  This is where the case highlighted the importance of seeking legal advice when intending to use expert evidence to ascertain the value of collectables in a property settlement agreement. [...]  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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Mediation and Your Family Law Dispute

Mediation and Your Family Law Dispute – Agreements that Suit Your Needs

WHAT IS MEDIATION?

Mediation is an alternative way to determine a family law dispute outside of the courts. The Mediator Standards Board defines mediation as: “a process in which the participants, with the support of the mediator, identify issues, develop options, consider alternatives and make decisions about future actions and outcomes.”

It is a process of problem-solving that is guided by an impartial third party called a mediator.

WHAT DOES A MEDIATOR DO?

In family law, the role of the mediator is to facilitate the process of dispute and conflict resolution while the content of the discussions rests with the parties. The mediator can assist the parties to clarify the most pertinent issues and consider ways to resolve these issues. A mediator will not, and cannot, give advice about your dispute or determine the dispute for you. [...]  READ MORE →

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Judicial Mediation: A New Option To Resolve Your Dispute

As of 1 January 2019, parties to a family law dispute and their marriage lawyer, in appropriate cases, may now have the option of Judicial Mediation in the Federal Circuit Court of Australia. Judicial Mediation is not intended to replace or substitute private mediation. Rather, the court expects that parties to a family law dispute exhaust all mediation alternatives, such as private mediation with a private mediator, prior to Judicial Mediation.

The Judicial Mediator

The Judicial Mediator may not be the Judge that would ordinarily determine the family law dispute. This Judge is referred to as the Docket Judge. Where both Judges consent, the Docket Judge may refer the proceeding for Judicial Mediation to another Judge. [...]  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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Family Violence and Your Property Settlement Agreement

At the end of a relationship, couples are often faced with the issue of dividing their property. Due to the emotional nature of relationship breakdown, this task often proves tricky for even the best of couples. Where the couple is unable to come to an agreement, the Family Law Act 1975 (Cth) empowers the Court to make a property settlement agreement that it considers appropriate. In coming to a property settlement agreement, the Court considers financial and non-financial contributions to the relationship and the future needs of the parties. The conduct of the parties is generally not a relevant consideration. [...]  READ MORE →

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I Didn’t Know – How You Can Get Out of A Property Settlement Agreement

The Family Law Act 1975 (Cth) s 79A(1)(a)  allows the court to vary or set aside a property settlement agreement where there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance. This includes where one party has failed to disclose his or her true financial circumstances. However, not every failure to provide full and frank disclosure during a property settlement agreement will amount to a miscarriage of justice. What is needed is to show that the failure to disclose has led the court to make an order that is substantially different from the order it would have made if full disclosure was made: Barker & Barker [2007] FamCA 13 [123]. [...]  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 →