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What You Need to Know About Splitting Superannuation

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The law treats superannuation as a different type of property when separating couples are faced with valuing and splitting their superannuation payments.  While the splitting of this ‘property’ does not directly translate into a cash asset, it is still covered under the Family Law Act and the applicable superannuation legislation and it is important for you to understand how this works if you are undergoing a separation or divorce from your partner.

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Valuing your superannuation 

In order to split your superannuation, you must first obtain valuation information. This can often be obtained from your superannuation statement.  However, in some instances this may require a bit of administration work and there are a few forms you may need to fill out. When you send the forms, your superannuation fund may charge a fee for providing certain information and this will be paid to them when you fill out the forms.

Superannuation can be valued in various ways as there are different types of superannuation and you can find these provisions in superannuation splitting legislation. Exceptions include the use of self-managed superannuation funds which usually need to be assessed by an accountant, or where the Attorney-General has approved a fund using an alternate valuation method.

How to split superannuation

There are various options in terms of how to go about doing this. You can:

  • Obtain a Consent Order filed in the Family Court
  • Create a Financial Agreement which requires both parties to obtain independent legal advice from their lawyers. This must be in a written agreement
  • In the instance that Consent Orders or an agreement cannot be met between you and your former partner, you may need to obtain a court order to split superannuation. 

Informing your fund 

You must inform your superannuation fund when you are seeking court orders so they are aware of the situation.  This is generally referred to as providing ‘procedural fairness’, so that the trustee has the opportunity to consent to the Orders, or to attend a court hearing and have the option to object to any orders that are raised, as the orders will bind the trustee of the superannuation fund.

Splitting superannuation can be a very complex area and it is best to have a qualified family law solicitor to assist you in obtaining the relevant valuation information and draft the proposed Orders or Agreement.  Contacting a family lawyer may help put your mind at ease and allow them to help guide you through the process. It can sometimes be daunting to have to deal with these kinds of issues and a professional will help alleviate any of your worries or concerns.

At Australian Family Lawyers, we have a breadth of experience in the family law space, including dealing with issues such as separation, children’s matters, spousal maintenance, property settlements, relocation and more.  Please do not hesitate to contact us for more information to find out how we can help you today.

What Does the Court Look for When Determining Child Arrangements?

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Determining the outcome of a child custody case isn’t easy on either parent, but it often helps to know what factors go into the court’s decision. While it’s impossible to predict the result of a case with certainty, there are a wide range of elements that are considered indicators of which parent is best fit to receive primary or sole care of a child.

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The Family Law Act requires the court to look at the following factors when ruling on what is in the best interest of the child:

The benefit of a child having a meaningful relationship with both parents

The objects underlying the Family Law Act are to ensure that a child has a meaningful relationship with both parents.  This is therefore a primary consideration when looking at the care arrangements for the child.

The need to protect the child from physical or psychological harm, abuse, neglect or family violence

It is important that any parenting arrangements do not put the child’s safety at risk.  This consideration is given the greater weight, even where it may conflict with ensuring a meaningful relationship with both parents.

The wishes expressed by the child

As the primary concern of the custody process is to determine what would be best for the child, their wishes are naturally taken into high consideration. Of course, the court must also consider factors such as the age and maturity level of the child as well as their ability to interpret the situation when expressing their wishes.

The nature and history of the child’s relationship with each parent

The current and previous relationship between the parent and child and the role of the parent in the child’s life will be factored into the decision making process.

How a change to the circumstances of the child may affect them

If the child has been living with one parent, the court will consider how being separated from that parent and/or other people associated with that parent (for example, grandparents, siblings or partners) would impact them.

The practical difficulties that may occur with certain custody arrangements

This could manifest in a number of different ways, such as financial, lifestyle or education barriers that might occur if one parent were to be granted majority custody.

Each parent’s ability to provide for the emotional and intellectual needs of the child

This can be of particular concern if the child had emotional or intellectual disabilities, as the court will seek to ensure that those needs are cared for appropriately.

Each parent’s attitude and demonstrated commitment to their role as a parent

If a parent has shown no evidence of being a dedicated parent to the child in question, the court will take this into careful consideration. 

If there is any history of family violence

This will be an important factor in determining who is most suitable to care for the child.

Any other factors that the court feels relevant to your specific circumstances

Each child custody case is different and prevents a unique set of family circumstances. The court’s will ensure that any relevant factors are considered before the final ruling is made.

If you are facing a child custody case, it’s always best to seek legal advice from experienced family lawyers. Contact Australian Family Lawyers today to speak to our dedicated team of family law specialists.

Property Settlement for De Facto Couples: What are Your Rights and Entitlements?

By | Family Law | No Comments

It’s important to understand your rights and entitlements as part of a de facto relationship. For almost the last decade, de facto couples across Australia have received similar rights and obligations as married couples, and so similar rules may apply for a separation for separated de facto couples as would be applied in a divorce.

Defining a de facto relationship

Before being able to understand your rights, you must first be able to define your relationship as de facto. This will help in any property disputes that may arise. A court will generally take into account things like how long you have been together, the ownership of your property, your financial involvement, the nature and extent of your common residence and so on. Whether there are children and the nature of their care and support will also be considered.

Property settlement: Time limits and applications

Under the Family Law Act, a party to a de facto relationship can bring an application for a property settlement within two years of the relationship ending. Outside this period, the application can only be made with court permission.  It is best to obtain legal advice early from an experienced family law solicitor to ensure the time limits are complied with, or for advice if you have any concerns that you may be outside the two year period. A qualified lawyer will be able to talk you through the process and ensure you are following the proper procedure to achieve your desired outcome.

Property adjustment conditions

There are of course conditions that must be met for a de facto party who wishes to apply for property adjustment or maintenance orders.

At least one of the following conditions must be met:

  • the de facto relationship must have lasted a minimum of two years
  • a child exists as a result of the de facto relationship (must be a child to both parties)
  • substantial contributions were made to the assets or the welfare of the family by the Applicant and failing to make an order would result in a serious injustice to the applicant
  • the relationship is registered

If at least one of these conditions is met, the Family Law Act provisions can apply, but you should check first with your lawyer as every situation is different and the amount of your entitlement, if any, can vary on a case by case basis.

At Australian Family Lawyers, we are here to help you. For advice or to book a consultation with one of our qualified and experienced lawyers, contact us today.

The Other Parent is Relocating and Wants to Take Your Child – What Are Your Rights?

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The thought of living states or countries apart from your child is distressing for most parents, however following divorce or separation it is possible that this scenario may present itself. The reality is that either party has the right to ask for relocation rights – however the final decision must be made by the court if the parents can’t agree. These situations are tricky, and because of this the Family Law Act doesn’t have any specific provisions for relocation scenarios. As such, the decisions are made on a case-by-case basis, but always on the basis of what is in the best interest of the child.

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If you are opposing the relocation, you may be wondering what the court will look at when making their decision. Here are just a few areas they will consider…

The reasons for relocation

The party asking for relocation rights must show compelling reasons for moving away with the child. Common motives include improved job opportunities in the proposed location or to further a new relationship that will contribute to the party’s happiness. Ultimately, the court must be satisfied that the reason for relocating is worth the impact it can have on the child and their relationship with the other parent.

The child’s opinion

If the child is of an age where they can express their opinion on the move, the court will take this into consideration. As mentioned previously, the concern of the court is to ensure that the child’s wellbeing will be preserved in the event of a relocation, so their wants are heavily considered in the decision-making process.

If the child can have a meaningful relationship with both parent’s post-relocation

The unfortunate reality of relocation matters is that the non-relocating parent will inevitably become more distanced from the child in the process. Because of this, the court will look at the likelihood of the child being able to maintain a meaningful relationship with the affected parent and the possible impact this can have on the child themselves.

Any incidences of family violence

In situations where the relocating party is attempting to escape past or present violence from their ex-partner, the court will take this into serious consideration. In this case, the relocating parent must make a compelling argument as to why it is best for the child to live far away from the non-relocating parent.

If you are facing a relocation issue, it’s always best to seek legal advice from experienced family lawyers. Contact Australian Family Lawyers today to speak to our dedicated team of family law specialists.

Understanding the Fundamentals of Spousal Maintenance

By | Family Law | No Comments

The legal responsibilities surrounding divorce can be overwhelming to deal with it and difficult to understand, especially when you’re dealing with the emotional side of things at the same time. However, this doesn’t have to be the case when you have the right team of legal experts on your side. To ease your mind, we have developed a simple guide to understanding spousal support, what it is and why you might have to pay it for your ex-partner.

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What is spousal support?

In basic terms, spousal support or ‘maintenance’ is when an individual is required to provide ongoing financial support for their former partner following separation or the breakdown of a marriage or defacto relationship. This is done as per the Family Law Act, which states that partners have a duty to support and maintain each other to the extent that they are reasonably able to do so.

It’s important not to confuse spousal support with child support – child support is paid to support any children from the past relationship, while spousal support is intended for the ex-partner specifically. A court can reasonably order that both child support and spousal support are paid simultaneously.

When do you have to pay it?

If an application for Spousal maintenance is made, it must be applied for no later than 12 months after a divorce is finalised or within 2 years of separation for a de facto relationship.  These time limits are only extended in limited situations. It may be granted in cases where one party is unable to meet their reasonable needs and the other is in a financial position where payment is possible.

How is the amount calculated?

The court always aims to make a decision that is fair and equitable for both parties involved. The amount is determined based on a number of factors indicating the financial capacity of both parties, such as:

  • Your income, debts, financial assets and resources.
  • Your health and age.
  • Your ability to earn an income, and whether this has been affected by the marriage or de facto partnership.
  • The suitable standard of living and the reasonable expenses that are likely to be incurred.
  • In the case where children are involved, the court will consider who the children live with.

If you are looking to apply for spousal maintenance, it’s always best to seek legal advice from experienced family lawyers. Contact Australian Family Lawyers today to speak to our dedicated team of family law specialists.

What to Look for in a Good Family Lawyer

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Divorce, child custody, prenuptial agreements, property settlements – there are a number of reasons why you may need a family lawyer at some point in your life. But when it comes to something as important as your loved ones and your assets, it’s important to make sure that you’re seeking the advice of someone you can trust to look after your best interests.

This is what you should be looking for in a family law professional…

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Experience

As we said, your family is the most important thing in your life – so it only makes sense that you shouldn’t trust just anyone to manage the legal processes that will impact on their way of life. Finding a family lawyer who has successfully managed other cases similar to yours before is a top priority. When interviewing lawyers, don’t be afraid to ask them directly their experience in this field to ensure that you can trust their opinion and judgement.

Comfort

No matter what you’re dealing with, chances are you will be communicating with your lawyer quite a bit throughout the legal process. For this reason, you should feel completely comfortable and at ease with the person you choose to represent you. If the circumstances that led you to needing a family lawyer are stressful – as they so often can be – it’s imperative for your own wellbeing that your lawyer makes you feel confident and understood throughout the process.

Comprehensive knowledge

While your lawyer will likely specialise in the area of family matters, they should have knowledge and experience working across many different areas of the law. Why? Because it’s common for family issues to cross over into other legal areas such as tax, property or even criminal law. In fact, if you’re seeking a divorce or financial settlement of some form, it’s likely that they will need to liaise with accountants and other professionals to help manage the process. Ensuring that they have a working knowledge of these areas will ensure that everything is handled smoothly from beginning to end.

Should You Sign a Prenuptial Agreement Before You Walk Down the Aisle?

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Prenuptial agreements – or ‘prenups’ as they are more commonly called – are often thought of as ‘un-romantic’ or just plain unnecessary unless you’re incredibly wealthy. But this couldn’t be farther from the truth.

A prenup is a great way to set out your financial wishes in the event that your marriage ends in divorce or if one party passes away. Today we delve into the specifics of these agreements, outline the pros and cons and consider what type of relationships it works best for.

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So what exactly is a prenup?

A prenuptial agreement is a legally binding contract created and signed by two people before they are married. This agreement usually provides the framework for how financial issues will be handled if the two parties ever decide to divorce. Areas such as property, inheritance, income and businesses owned by either party before the marriage or acquired during the marriage can be covered in this contract.

What are the benefits of signing one?

A prenup is a great idea for a number of reasons. If divorce occurs, it can…

  • Protect one party’s business from being subject to division or control by a former spouse.
  • Limit the amount of spousal support payable to the other party.
  • Protect the financial interests of people with substantial wealth.
  • Protect the inheritance rights of any children or grandchildren that exist from previous marriages or relationships.
  • Help your marriage start off with clear intentions and expectations, allowing you to go forward without worry.

And what are the drawbacks?

While there are many pros of getting a prenuptial agreement, there are also a few cons, such as…

  • If stated, it may void your right to any spousal inheritance that you would be entitled to under the law.
  • If you contribute to the success of your spouse’s business, but are not entitled to any part of said business as per the agreement, you will not be able to claim anything upon divorce.
  • Some people feel that beginning a marriage with this contract can indicate that there is a lack of trust.
  • As it is an agreement entered into outside of Court, it is not possible to guarantee that the agreement will be binding unless and until one of the parties challenges it in Court if the relationship breaks down. However, it is one of the best forms of protection, provided that it is drafted by a specialist family lawyer.

So, what type of relationship does it work best for?

In theory, a prenuptial agreement can work for every type of marriage where there are financial assets already established prior to your union, or if there is an expectation of a future large inheritance from family members. If you don’t have any property, businesses, inheritance or anything else to protect, there might not be a need to draw up such a contract. But if you do, it’s best to sit down with your partner and determine whether such an agreement is right for your circumstances.

3 Common Misconceptions About Family Law

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There are many sensitivities around divorce and separation, but it is important to know your rights and what you can expect from the legal process. When entering this process, many people assume certain things which may not necessarily apply to their situation. Every case is different and varying factors involved can affect the outcomes regarding financial disputes and children. Read on to see a few family law myths dispelled.

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“When we separate, my partner is automatically entitled to half our assets”

As every case is different, there is no ‘one size fits all’ approach to division of assets. There are many factors to be considered when reviewing how assets should be distributed which is outlined in the Family Law Act 1975. These factors must be considered after the breakdown of a marriage or even a de facto relationship.

A few factors include whether there are children from the relationship, whether the parties had assets before the relationship commenced, whether one or both parties made special contributions during the relationship (eg. inheritance), each party’s age and health, and more. You should contact your lawyer to find out the full list of these factors and how it is likely to affect your specific situation.

“Every case is entitled to a 50/50 child custody outcome”

While this may be a good outcome for some families, it may not apply for all. The children’s best interests are paramount as defined in the Family Law Act, and will always be top of mind when the Court is considering any child custody case. Sometimes spending an equal amount of time with each of the parents will not be in the child’s best interests or may not be practical to occur for their health, schooling, religion and so on. If you are worried about the long-term parenting arrangements for your children or have any questions about the decision, you should seek legal advice.

“To have a property settlement, we must be divorced”

Contrary to widespread belief, it is not necessary to be divorced to have a property settlement. After you separate and prior to being divorced, both parties can negotiate and formalise a property settlement at any stage. The formal process of ending a marriage is a divorce, and this can only be applied for by both parties until after they have been separated for 12 months.

At Australian Family Lawyers, we deal with family law services in divorce and separation, property settlement, children’s matters, spousal maintenance, same-sex and de facto couples, intervention orders, child support, mediation and more. Contact us to make an appointment and find out more today.

What You Need to Know About Defacto Relationships

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It can be difficult sometimes to know how your relationship is defined by the law if you are not legally married. Wondering if your current or past relationship is defined as de facto? Are you unsure of what this means or how it works in a court of law if you have financial disputes or children involved? See below some useful information on this topic, which may help you navigate the legal landscape and help you discern what you are entitled to in a de facto relationship.

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What is a de facto relationship?

The Family Law Act 1975 defines a de facto relationship as you and your partner, who may be of the same or opposite sex, having a relationship as a couple living together on a genuine domestic basis. If you were legally married to one another or related by family, your relationship is not considered de facto.

The Act sets out a number of additional factors to work out whether they have a relationship as a couple.  These include, but are not limited to, the length of the relationship, whether a sexual relationship exists, whether they have children together and the mutual commitment to a shared life, just to name a few.  Just because one or some of these factors exist doesn’t mean that it is a de facto relationship, and just because one or some of the factors don’t exist doesn’t mean it isn’t a de facto relationship.  Each case is different and it is best to get specialised legal advice to work out whether a de facto relationship exists.

Financial Disputes in de facto relationships

It can be said that while you are living with someone and in a relationship, this dynamic and financial situation can be similar to a circumstance where you are married. If you share assets, bank accounts and so on, things can become messy when the relationship breaks down. Parties to an eligible de facto relationship which has broken down for whatever reason can apply to the Family Court or the Federal Circuit Court to have financial matters determined in virtually the same way as a married couple would.

This may benefit you if you are in a situation where financial disputes arise. You must, however, apply for de facto financial orders within two years of the breakdown of your relationship because after this time you will need the Court’s permission to apply.

De facto relationships and children

It can always be more complicated to settle disputes when children are involved and arguments are likely to arise. In a similar fashion to handling financial disputes, the Family Court and the Federal Circuit Court deal with issues related to the children of de facto relationships in the same way as married couples. This can help when dealing with issues such as disputes regarding parenting arrangements, relocation and travel and so on.

At Australian Family Lawyers, we are here to help you and answer any questions you may have about family law. From separations to property settlements and relocation, we are the experts. Contact us today to book an appointment.

How to Ensure Your Divorce Runs as Smoothly as Possible

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Divorce Process

Getting a divorce is often considered one of the most difficult times in a person’s life – but there are a few things you can do to try and make the load much lighter. The following tips aim to simplify the process as much as possible, while also attempting to alleviate the emotional burden that this time can have on all parties involved.

Consult a lawyer

The first thing you should do when getting a divorce is seek the counsel of a qualified lawyer. Even if you are on great terms with your ex-partner, the simple act of having an experienced professional guide you through the process can ensure you are better equipped to face what is down the road. Remember, getting a divorce is often considered the ‘easy’ part when it comes to the legalities – the real issues can start to surface when you begin the settlement process, and having someone who can help you navigate these things can make a profound difference.

Consider alternative methods of dispute resolution

Don’t be fooled by all the movies where an aggrieved husband or wife boldly tells their ex-spouse ‘I’ll see you in court’ – litigation is something you want to avoid as much as possible. Not only does it stretch the process out over a long period and cost all parties an extremely large amount of money, but it is likely to put you and your family under more emotional strain. Alternative dispute resolution processes such as mediation, arbitration and negotiation can achieve desirable outcomes by facilitating open communication between all parties. If possible, you should aim to explore these avenues before opting for litigation as they are less time consuming, quicker and less costly.

Try to communicate openly

There’s no doubt that during a divorce process, emotions are often running high. It’s common for all parties to feel sadness, anger, anxiety and confusion and these things can influence one or both parties to act in ways that may not necessarily be in their best interests. Going into your divorce, it’s good to make a conscious effort to communicate openly and honestly about all matters. This is especially important if you are undertaking any of the alternative dispute resolution options mentioned above, as these rely on a good foundation of communication to achieve a positive result that both parties are happy with.

Keep the focus on the kids

Divorce isn’t only difficult for the two married parties – for any kids involved, it can be a tumultuous and confusing time as well. If you and your partner have children, it’s important to ensure that they feel as secure as possible throughout this process. Talking with your partner about how to approach this area is best, as it will allow you to agree on a plan that will hopefully minimise the effect it may have on your little ones.

If you are facing issues related to family law, don’t hesitate to contact our Melbourne office on 03 9993 7184 or our Sydney office on 02 9186 8135.

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The Importance of Seeking Legal Advice

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Legal Advice

When you’re dealing with family law matters such as divorce, separation, spousal support, division of assets or child custody issues, it’s always a good idea to get the help of a qualified professional. There are several reasons why finding a good family lawyer should be a top priority for you during this time, including…

It makes things less complex…

Family law matters can be overwhelming for the parties involved as there is so much to consider from both a legal and a personal point of view. Seeking the legal advice of an experienced family lawyer can help to alleviate this pressure, as it will ensure that you are fully informed and prepared for the process ahead. A good lawyer will clearly explain the best path for you to pursue based on your specific circumstances, allowing you to understand what your next steps should be.

It ensures that you know your rights…

It goes without saying that you want the best possible outcome for you and your family when it comes to matters such as separation, divorce and child custody. However, approaching these matters without seeking appropriate legal advice puts you at risk of making uninformed decisions that can negatively impact the outcome. Your lawyer will make sure that you are familiar with your individual rights, as well as giving you advice on how best to proceed. This helps you to avoid situations or outcomes that unfairly infringe on your rights.

It ensures your agreement is legally binding…

When dealing with important matters such as property settlement, child custody and division of assets, it’s crucial to ensure that any agreements made between both parties are legally binding. A family law professional will help to assure this by drafting documents that protect the sanctity of the agreement and will be upheld if one party does not satisfy their side of the agreement.

It gives you a better chance at a positive outcome…

Ultimately, your lawyer is there to help you achieve the most desirable outcome for you and your family, and that is precisely why seeking their advice is the best choice you can make. Here at Australian Family Lawyers, our team of professionals are highly experienced and passionate about what they do, always aiming to guide our clients through the legal process as smoothly as possible.

If you are facing issues related to family law, don’t hesitate to contact our Melbourne office on 03 9993 7184 or our Sydney office on 02 9186 8135.

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How to Navigate the Complexities of Child Support

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Child Support

More often than not, child support brings with it a multitude of questions from both parents who are unsure of how the process will unfold. If you are paying child support, or if you are the primary care giver receiving the payments, take a look at the questions below to learn a bit more about what to expect…

How is the payment amount determined?

There are three ways in which the amount of child support owed can be determined.

  1. The Child Support Agency (CSA) can conduct a Child Support Assessment, which considers factors such as the income of both parents, the amount of time each parent spends with the child, the ages of the children and the number of dependent children from other relationships. The assessed amount of child support is (usually) payable by the parent who spends less time caring for the child. The assessed amount is expressed as a weekly, fortnightly or monthly payment. The CSA can also collect child support payments directly from the paying parent and forward them onto the parent with primary care of the child.
  2. A self-managed approach to child support payments is also possible for parents who can reach an agreement without the help of the CSA. In situations such as this, the funds can be transferred privately via cash or bank transfer. Alternatively, if the parents are happy to self-manage the payment but are unsure of what should be reasonably paid, they can request that the CSA conduct a child support assessment, but can still also pay directly to the other parent.
  3. Parents can also agree to pay additional expenses for the children, such as school fees, medical expenses and extra-curricular expenses. The parents can have an informal agreement between themselves about such expenses, or alternatively enter into a more formal arrangement by way of a Child Support Agreement.

What can I do if the parent is not paying their child support?

If the parent of your child is failing to pay the required amount of child support, you can report them to the CSA. From here, they will be investigated and any missing payments will attempt to be recovered and provided to you. This can be done in several ways, such as intercepting tax refunds, employer reductions, prosecution or bank account deductions.

Does child support still have to be paid if one party lives overseas?

Child support payments are still required even when the payer or the payee are living overseas, although this can cause a delay in payments. The best option is for the parent who is still residing in Australia to contact the CSA with the details of their situation, as they may be able to liaise with the relevant bodies to facilitate payment.  Depending on the country where the other parent lives, this can make it more difficult to enforce payment if Australia does not have any reciprocating child support arrangements with that country. Of course, self-managed payments are also an option for parents who can come to an agreement without the help of the CSA.

If you have any other questions regarding child support, please don’t hesitate to contact Australia Family Lawyers for professional advice tailored to your situation. Call our Melbourne office on 03 9993 7184 or Sydney on 02 9186 8135.

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Negotiation, Mediation and Litigation: What’s the Difference and How Will It Affect Me?

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Mediation

 

When you’re navigating a dispute resolution process, there are several different avenues that are designed to facilitate a fair and just outcome for both parties involved. The most common of these are negotiation, mediation and litigation, and each one involves its own unique process and ability to resolve matters of family law.

What is negotiation?

Negotiation is arguably the most common form of dispute resolution, and chances are that you have taken part in this process on a smaller scale many times throughout your life. This method requires the aggrieved party to approach the offending party to discuss the concerns surrounding the dispute and to attempt to come to an agreement both are happy with.  Negotiations can be done in person, however in most family law matters negotiations are usually done by way of letters between the parties and/or solicitors.

Negotiation, if possible and practical, should be the first step in any dispute. It can avoid costly litigation fees and avoid a long-drawn out legal process. However, if the negotiation process is not successful, the next step would be to move on to mediation or litigation.

What is mediation?

In situations where negotiation between the two parties (and/or their lawyers) has not lead to a resolution, the matter can be taken to an impartial third party. This person is known as a mediator and should be accredited and familiar with disputes that are similar in scope to the one being brought forward. When mediation is sought out, both parties must agree that they will try to resolve their differences with the help of the mediator.

A mediator does not make a decision, but rather assists the parties to reach their own agreement.

Mediation is a great option for those people who have not been able to reach an agreement via negotiation, but are still open to resolving the matter out of court.

What is litigation?

Litigation is an avenue that should be explored if all other alternative dispute resolution methods are exhausted. In this instance, the parties involved rely on a judge to determine the resolution by presenting their case to the court. The outcome of this method is binding on both parties, although taking the matter to a court of appeal may be possible.

As it is a time consuming, costly and prolonged method of dispute resolution, it is recommended that litigation only be used if all other avenues have failed.

Whichever method is used to resolve your family law matter, we strongly recommend that any agreement be legally formalised.  We can assist you during all forms of dispute resolution and drafting legally binding documents to formalise your agreement.

For more information about your options when it comes to family law dispute resolution or property settlement, call our Melbourne office on 03 9993 7184 or Sydney on 02 9186 8135.

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What You Need to Know About Division of Assets Owned by a Third Party

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When you are going through the process of dividing your assets during a divorce, it can be easy to assume that the only people who will be involved are you and your ex-partner. However, in situations where assets owed to, or owned by, a third party are tied up in the individuals involved in the divorce process, aforementioned third parties can become involved in the proceedings also. The following information explains how this can occur and what the result may be for the people involved.

You may be wondering how your divorce/separation can involve other individuals or entities…

Despite the fact that divorce and separation is often a very personal legal process, the truth is that it can have a wider effect on certain parties involved with the married individuals. The Family Law Act gives the court power to make orders which are not only binding on third parties, but can affect their rights and interests also.

The people who may be considered relevant third parties can range from…

  • Friends and relatives who may hold investments or personal loans with the individuals seeking a property settlement.
  • Companies or partnerships with whom the separating parties have shareholding interests.
  • Executors of deceased estates.
  • Banks and other financial institutions.
  • Trusts, trustees and appointors of trusts.
  • Business partners of one or both of the divorcing parties.
  • Creditors and Bankruptcy Trustees.

While the concept of involving other people, especially family and friends, in your divorce can seem daunting, it’s important to remember that the court only makes orders in a just and equitable manner. The order must be reasonably necessary and appropriate so as to preserve the rights of the third parties who may become involved.

 

So what are the situations in which third party assets become involved?

There are many situations in which a court may make an order that affects a third party. For example, in the situation where the divorcing parties gave a personal loan to friends or family, the court may order that all monetary reimbursement of that loan is to be given to one individual, rather than as a shared asset. This is also true if money is owed to a third party; the court may find that one individual should incur the financial responsibility of paying it back. Similarly, in situations where companies are involved, the court has the power to order the transfer of debt or shares into one individual’s name.

In every situation, the court takes the appropriate measures to ensure that the order is appropriate and fair on all individuals or groups involved by looking at the relevant facts presented by the relevant parties.  It is important not only for the separating individuals to get advice from a specialist family lawyer, but also for the third party to get such advice as to their rights and entitlements.

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Your Guide on Appealing a Court’s Decision

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When it comes to matters of family law, it can often be hard to accept a decision that a judge has made as it often affects areas of our lives that matter most to us. However, it is possible to have the case reconsidered in some circumstances where there is legitimate reason to believe that the judge made an error. This is called an appeal, but before you decide to go down this avenue, there are a few things you should be aware of.

What is the process of filing for an appeal?

As mentioned previously, you cannot appeal a decision simply because you are unhappy with it; you must prove that there are valid grounds on which to assume that there was an error in law or fact. Because of this, you must follow a strict procedure to ensure that all the necessary needs are met within a specific timeframe.

The process is as follows…

Within 28 days of an order being made from a judge, a Notice of Appeal can be filed in the Regional Appeal Registry. When doing so, the appellant must pay a filing fee.

An appellant must also submit a draft index to the appeal books within 28 days of filing the Notice of Appeal. If this requirement is not met within the prescribed timeframe, the appeal is considered to be abandoned.

Once the draft index is filed, the appeal is then taken to a procedural hearing. During this hearing, the appellant will receive orders in regards to what documents and other information is required for the Full Court hearing.

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Appeal hearings are taken before the Full Court, which in family law is three judges from the Family Court.

What you should know before pursuing an appeal

Like any legal process, appeals can be lengthy, expensive and very emotionally taxing on all parties involved. Before you file for appeal, it is important that you speak to an experienced family lawyer about your options and get their advice as to whether you should proceed in this direction.

An important thing to remember during this process is that appealing a court’s decision does not stop that order taking effect. This means that all parties involved must obey the order handed down from the court until it is overturned by the Full Court, if it is at all.  Your may therefore wish to apply for a “stay” of the original decision until the appeal has been heard.  Your lawyer can assist you with this process also.

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What You Need to Know Before Filing for Divorce

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It goes without saying that the breakdown of a marriage is difficult for everyone involved, especially when you’re working through the emotional and legal repercussions at the same time. While divorce proceedings are rarely a walk in the park, there are a few important things for you to know before you go ahead with such a big decision.

It’s a process

In Australia, the dissolution of marriage is done in multiple separate steps; the granting of a divorce order, property arrangements and, if there are kids involved, parenting arrangements (although not necessarily in that order). Contrary to what many people expect, the granting of a divorce is usually the most straightforward step, while the other arrangements are lengthier and more tedious due to the nature of what is being discussed and agreed upon. Some simple research from reputable sources either online or in person will help you better prepare for what is to come.

divorce order

Going to court shouldn’t be the goal

We hear it in movies all the time – “I’ll see you in court!” – but when it comes to divorce proceedings, it’s best to try and avoid this situation altogether. What the movies don’t tell you is that walking into the courtroom to fight with your ex-husband or wife is not only emotionally taxing, but time consuming and expensive. That’s why it’s always best to explore other avenues for resolution, such as mediation or arbitration, leaving a court case as a last resort if you can’t seem to come to a fair agreement. This will allow you to discuss your wants and needs with your ex-partner in person, with the hopes of it remaining civil and both of you can leave happy with what is agreed upon.

You will want the advice of professionals

Divorce can be tricky, especially if you’re not on the friendliest of terms with your ex-partner. Luckily, there are a range of professionals who you can go to for valuable advice about how to move through the process in a way that will hopefully provide you with a fair outcome. Finding a good family lawyer whom you feel comfortable speaking openly with is crucial to achieving a positive outcome that you are happy with. You might need to talk to a few different lawyers before you find the person you want representing you, but it will be worth it in the long run. Consulting a financial advisor or accountant, in conjunction with your lawyer, is also a great way to determine what you should be asking for in the settlement. And finally, a therapist or counsellor for you or your kids should be a priority, as it will ensure that you get the emotional support you need during such a difficult time.

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What Is a Prenuptial Agreement and Do I Need One?

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Whether you are married or in a de-facto relationship with your partner, putting the appropriate framework in place to easily and fairly divide your assets in the event that you separate is very important. A Financial Agreement (“prenuptial agreement”) helps to do this by representing both of your wishes in a way that is recognised by the court, with the aim being to make the process easier if the need to redistribute your common assets ever arises.

Also known simply as a “prenup”, a common misconception about these contracts is that they are only for couples who are about to get married. While this is certainly one situation in which a prenuptial agreement is signed, the truth is that any two individuals in a relationship can enter into one of these contracts before, during or after the relationship.

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So how do you know if a Financial Agreement is right for you and your relationship?

Contrary to what many people think, these agreements aren’t only beneficial to couples in a high income bracket, or for people who earn significantly more than their partner. A “prenup” is a great option for any situation where one or both people involved are bringing significant assets into the relationship, or to protect anticipated future assets, such as a future inheritance. This can include property, businesses in your name and any money that might be in a savings account. It’s also a good way to determine how you will split any common assets you may already have – such as a house or a car – if you happen to end the relationship. As many of us know, deciding who gets what after a break up or a divorce can get very messy very quickly, so it’s wise to agree upon a civil resolution while you are in the midst of love.

However, for some people, it’s not about the assets at all; it’s about the debts. Throughout the prenuptial process, you and your partner can contractually agree on how you will go about paying off important financial obligations such as outstanding loans, university fees or credit card debt. Along with this, you can also get into detail about how this will influence the amount each person contributes to other costs like household fees and bills etc.

While nobody enjoys thinking about the potential for their relationship to not last the distance, a Financial Agreement provides a foundation of open communication and transparency on which two people can build their lives. Not only does it ensure that you both have your respective assets accounted for, but it can help you to avoid a lot of post break up stress if you ever have to go your separate ways.