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I  am announcing that I am winding back my practice and will not be taking on any new clients.

I am often asked by people planning to marry:

What happens to the property I own before I marry ?

Does my wife automatically get a half share?

Surprisingly, the answer is no. Watch this space for a full explanation soon.

Divorce

Today we are going to talk about Divorce applications.

The Cost.

Filing for divorce is quite expensive. $910, if you are not on Centrelink or in financial difficulty. About $305 if you are on Centrelink.

It can be a sole or joint application. Naturally, if it is joint, you will share the cost.

The Application can be done on line. Just go onto the www.federalcircuitcourt.gov.au website and follow the prompts.

You will need a photocopy of your marriage certificate. Either the simple “Certificate of Marriage” or the one that contains details of extended family will suffice. It does not have to be a certified copy.

 

What if I don’t have a marriage certificate?

Then get hold of one. Apply for one through Registrar of births, or the equivalent in your country of origin.

 

What if my marriage certificate is not in English?

Then you must obtain a translation from an accredited translator.

 

What if I come from a country that does not supply those things, because it is a wartorn country or those kinds of departments do not exist, or we do not have marriage certificates in our country?

Then you may need help from a lawyer to do an Affidavit, explaining why you can’t obtain a marriage certificate, explaining the circumstances around your marriage and even annexing photos of the wedding.

Do you have to attend a hearing?

If you have children, yes, you do have to attend court, unless it is a straight forward joint application.

If you do not have children under 18,

What reasons must I give for the marriage breakdown?

In Australia, the only reason you need to apply for a divorce, is that you have been separated from your spouse for 12 months. This separation period can be living separately under the one roof, or party actually physically moving out of the house.

If you lived separately under the one roof for 12 months, you will need to do an affidavit, setting out your daily routine during that time. You will also need an Affidavit from an independent third party, who has visited your home during the separation period.

What if I can’t find my spouse?

The Court expects you to make every effort to find your spouse. This includes making phone calls to overseas relatives, looking up the electoral roll and so on Make a note of these searhes and conversations and times and dates. You will need to apply to the court ti give yui permission not to serve the documents on your spouse. This is called “Application to dspensse with service” and must be accompanied by your Affudavit, setting out your efforts to find your spouse. If the Ciurt is satisfied that, despite your best efforts,your spouse cant be found, you will be granted your divrce, nevertheless.

If, on the other hand, you have been out of communication with your souse and you have been separated for well over 12 months, check with the Dederal Curcuit Ciurt to mak sure. Your spouse has not divorced you, without your knowledge.

When can I re-marry?

Your divorce becomes absolute, one month after the hearing. At t hat point,, you are permitted to re-marry.

Don’t forget that you only have 12 months from the time your divorce becomes absolute, to bring an Application fir property orders.

This website contains legal information only. Please do not act on this information, until you have legal advice for your particular matter.

The next blog will be about grandparents and their rights.

 

Setting the Record Straight 10 March, 2020

Moving interstate with your child

These are the hardest matters to advise on. The cases become very expensive and, generally go to full trial. Often they are appealed.

It all comes back to “what is in the best interests of your child”. That won’t be easy to answer. In the past many of these types of cases have gone all the way to the Full Court and High Court.

People feel they should be free to move around the country, yet children need to maintain a relationship with both parents. Sometimes the grandparents live interstate and the mum, needing support, wants to live close by.

Sometimes, there is a re-partnering or re-marriage. Sometimes a parent just wants to put some distance between their past and their future.

It all comes down to showing that your child will benefit greatly from this move. It is not always easy to do this. School age children, in particular often don’t want to be parted from their friends. Younger children can’t travel on their own.

As a starting point, you need to demonstrate that you have been realistic and have investigated what your new location has to offer in terms of school, your family network, employment, friends etc. You need to show that you have thought about how often your child would spend time with the other parent and are you prepared to pay for some of the travel? Are you happy for the child to be away for weeks at a time?

In particular, you would need to show the Court that you are fully aware that there will be an impact on the relationship between your child and the other parent. You will need to show that you have considered ways to enhance the quality of that relationship, through frequent facetime sessions, email, phone conversations etc.

There are no fixed regimes or easy answers. Again, you would need to be creative. There will be times, when your former partner may visit. Is there reasonably priced local accommodation available? Some families have the ex partner stay with them in their new home, to spend time with the children.

Judges will take different approaches to these matters. The outcomes can be most unpredictable. Sometimes a Judge will make the decision based on the enormous impact of a parent, who is restricted from relocating where, say, they are a member of say, the armed forces or another career that requires relocations. At times, a Judge has refused the Application to relocate, because the relationship between the child and the other parent requires serious engagement, in order to have any hope of improvement.

The next blog will be about divorce applications.

 

Warning…this website contains legal information only.

You must obtain legal advice about your individual

Matter before acting.

Setting the Record Straight 6

2 March,2020

What if I don’t know where my ex- partner, daughter-in-law, son etc lives with the child?

This could be a question asked by a parent or grandparent. We can lose touch for many reasons— family breakdown, arguments, illness and so on.

The Court will actually assist you in “serving” documents on (or arranging for them to be delivered to ) the person, whose address you don’t have. sometimes the Court will order, what is known as “substituted service”. which may consist say, of uploading documents onto electronic apps, such as “WhatsApp”.

You can apply to the Court for an Information/Location Order. The other party is likely to receive Centrelink or to pay tax. You can obtain an Order from the Court that a Government Agency (such as Centrelink or the Australian Tax Office) disclose the other party’s address.

The Court Order will normally say that the address be only disclosed to the process server. In other words, you can prepare your Application say, for Parenting Orders, and the process server will be given the address details, on a confidential basis so that the documents can be “served” or delivered to the other party.

This is what you have to do

  1. Prepare your court documentation for your Initiating Application
  2. In your list of Interim Orders Sought, you state that you are also seeking information from, say, Centrelink, about the other party’s address.

(Your affidavit material will need information as to why you are seeking this type of order)

  1. The Application and accompanying documents have to be delivered to
    (served on) the government agency in question, before the matter
    comes before a Judge.

There will then be a hearing, which you must attend, before the Judge makes the necessary Order. The Judge will decide to make the Order, based on whether you appear to be genuine in your need to obtain the necessary details.

These types of Orders are available because of the right of children to know

their parents, grandparents and so on. There is also information on the Family Court website and the staff will answer your questions through the “Live chat”.

THIS BLOG CONTAINS INFORMATION ONLY. DO NOT ACT ON THIS INFORMATION, UNTIL YOU HVE HAD PROPER LEGAL ADVCE.

You can find old blogs by putting “archived blogs” into the search engine.

NEXT BLOG: What if I want to move interstate with my child?
Setting the Record Straight 5
24th February, 2020

Parenting arrangements (2)

People often get frustrated with mediation, because it involves a lot of time and give and take.

Many of my clients have gone through this. They simply “just want the judge to decide”.

If the other party just won’t be reasonable, is very violent or suffers from a mental illness, it may be the only option.

Please don’t embrace court lightly. It is by no means a “quick fix solution “. Parenting takes working with the other parent, whether you are separated or not.

Even once you have court orders, you wikl need to communicate in a civil and productive manner about your children’s needs, problems, aspirations etc. It will continue as long as your children need you. Then there will be weddings to plan and grandchildren’s birthday parties and weddings and the like.

Going to court is very expensive. People tell me they have spent over $100, 000 on lawyers in family law matters.

It involves putting your relationship history into affidavits. What is said in affidavits can push many buttons and hinder the negotiating process.

A judge will encourage to mediate negotiate, even on the day of the hearing. At court there may be a power imbalance, depending on whether you are both represented.

A judge may not give you orders that either of you is particularly happy with. Yet you will be stuck with them for a number of years, at least, unlesd you both agree to change them by consent.

Thr message is clear. Make every effort to negotiate from the start. Effective negotiation will set the tone for the next 35 or so years (or more), that you will be involved in each other’s lives.
Parenting Arrangements.

Most people say they will lay down their lives for their children.

Self sacrifice is an intrinsic aspect of parenthood. Consider laying aside some of your differences , to negotiate arrangements that best suit your children.

Be gracious and tolerant., even forgiving and flexible. At the moment it is not at all about you. It is about your child’s best interests. You will be a superb role model, if you prioritise these things.

If considering your child’s safety, be realistic.

There is so much to be said for creative parenting arrangements. You will benefit from working together as a couple to make arrangements to suit your children. It is not easy to put your differences aside to work towards this, but you are adults now and parenting is one of the most important tasks you will perform in life. This is certainly not the time to be petty and vindictive. It is time to muster up as much forgiveness as you can, to negotiate a fair and loving solution for your traumatised children. They did not want you to split up. You may have had very good reasons to break up. However, the majority of children grieve and want to be with both parents, no matter what they say to you.

Children will inevitably tell both of you what you each want to hear. They want their time with you to be pleasant, so they will attempt to please you.

Don’t introduce your new partner straight away. Give it time. And always make time to be alone with your biological children. Don’t let the child support considerations influence your parenting decisions. Again, be creative. Arrange what suits your child best. Some people leave their children in the matrimonial and move in and out as parents. At least that allows the children to have some stability. Don’t either of you move too far away from the other. It would be best for your children, if you were both involved in their education, extra-curricular and sporting activities.

Most mediation centres accommodate creative and convoluted, individual parenting plans. Make sure they are signed and dated. This makes them official parenting plans, which can be submitted to the Court, if you do eventually have to litigate.

What if the other party does not return the children?

Even if you don’t have court orders or even a parenting plan, you are eligible to apply for a recovery order to have the children returned.
When should I arrange for parenting court orders?

If there is a history of breaching agreements or a likelihood of serious breaching, or outright refusal to let you see the children, then apply for order. Then you have an option to bring a contravention application.

However, remember other party does not have to comply with orders, if there is a reasonable excuse.

This could be if there is a safety issue, an older child, say, reaching teenage years, does not want to go for good reasons or your child might be so unwell that he/she can’t be transferred from the home of one parent to another.

In any event, you should inform the other parent, in good time. If there is an issue, such child not wanting to go, or a genuine safety concern, you will also have to bring an application to change the orders.

Warning—if you alienate your child from the other parent and refuse to send the child to the other parent without a decent excuse, the court can and will…in fact, they have done so in the past..it is not an empty threat..order a change of the child’s living arrangements…so that the child actually lives with the other parent. I can hear your gasp ..yes, be warned, indeed

Next blog…..what if we want the Court to decide on our parenting orders?

THIS BLOG CONTAINS INFORMATION ONLY. DO NOT ACT ON THIS INFORMATION, UNTIL YOU HVE HAD PROPER LEGAL ADVCE.

 

Warning…this website contains legal information only.

You must obtain legal advice about your individual

Matter before acting.

Search for “archived old blogs” in the search engine and you will find the old blogs