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Family Law Seminar Riverland Community Legal Service 8 Wilson Street, Berri SA 5343 Phone: 08 8582 2255 Fax: 08 8582 2266.

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Presentation on theme: "Family Law Seminar Riverland Community Legal Service 8 Wilson Street, Berri SA 5343 Phone: 08 8582 2255 Fax: 08 8582 2266."— Presentation transcript:

1 Family Law Seminar Riverland Community Legal Service 8 Wilson Street, Berri SA 5343 Phone: Fax:

2 Divorce  Ground for divorce:  Irretrievable breakdown of marriage  No likelihood of reconciliation  Living in Australia 12 months prior to seeking divorce  Separation must be clearly expressed and articulated  Fault is not an issue with divorce in Australia  Requirements – for application in Federal Magistrates Court:  Marriage Certificate –Certified copy not the original Application – original and two copies Self addressed stamped envelope Payment for lodging - $550 approx or a reduction of payment form – will need a concession card to aid exemption

3 Divorce  Marriage certificates not in English additional requirements  Translated by an authorised translator  There is a fee involved in this  Riverland Community Legal Service can find a translator but we are not liable to any costs involved  The authorised translator need to sign a supporting affidavit stating who they are, and that they are an authorised translator  Need a certified copy of the marriage certificate  The affidavit needs to state what foreign language it is translated from

4 Divorce – Separation Under One Roof This can occur under the Family Law Act 1975 section Need to present reasons to the Court why this is occurring Financial reasons are generally main reason as to why this is occurring Needs to be confirmed by an independent witness affidavit who can state the parties have:  Separate domestic lives  No sexual relationship  Separate rooms  Not socialising together  Individual chores around the house

5 Divorce – Resuming Cohabitation If the parties to a divorce resume cohabitation on one occasion but within a period of 3 months they separate again and have thereafter lived separately and apart, these time periods may be calculated together for the purposes of 12 months separation.

6 Divorce – Short Marriages Parties to a short marriages of under two years under the Family Law Act must attend counseling to attempt or look at reconciliation with the assistance of a specified person or organisation before they can file for divorce This requirement for counseling can be waived under special circumstances For an application to waiver, decided by the Court from evidence in a supporting affidavit

7 Divorce – Service Service is the process of sending or giving court documents to a party after they have been filed, in accordance with the Rules of Court Service ensures that all parties have received the documents filed with the Court and are aware of the Court date and time Court requires proof of service through their own forms

8 Divorce – Time Limits for Serving If your spouse is in Australia, the documents must be served at least 28 days before the Court hearing  If not the matter will be adjourned If your spouse is overseas, the documents must be served at least 42 days before the Court hearing

9 Divorce – Your responsibilities to serve the application on ex If you have made a sole application you must arrange to serve the following documents on your spouse:  A sealed copy of the Application for divorce A copy of the Marriage, Families and Separation brochure Any other documents filed with the Court, except original of your marriage certificate  Acknowledgement of service – must be signed and dated by ex Self addressed stamped envelope Covering letter stating please sign, date, put in envelope and send back the Acknowledgement of Service

10 Divorce – How to serve? Service by Post  You should only attempt this if you are certain that your spouse will return the signed and dated Acknowledgement of Service (Divorce) to you  Without this the Court cannot be sure your spouse has received the documents and will adjourn the matter Service by Hand  YOU CANNOT SERVE THE DOCUMENTS ON YOUR SPOUSE YOURSELF  You must arrange for a person over 18 years of age to serve the documents on your spouse

11 Divorce – How to serve? The server can be:  A family member  A friend  A professional process server such as the Sheriffs Officer of Court (a fee is involved with the Sheriffs Officer) If a family member or a friend serves the documents they must complete a supporting affidavit detailing all that they did, that they identified who the person is or how they know that person they are serving the documents on, how they identified them, etc There are specific forms for this

12 Divorce – How to serve? Serving your spouse’s lawyer  If your spouse has a lawyer and they are willing to accept service, you can serve the documents on your spouse’s lawyer  A signed Acknowledgment of Service from your spouse’s lawyer is proof of service  This Acknowledgement must be filed with the Court

13 Divorce – Filing after service After the documents have been served on your spouse you need to make a copy of the service forms and file the original at the Family Law Registry If you attend the Court hearing, take the copy of your service forms with you

14 Divorce – What if you cannot serve your spouse? If you are having trouble serving the divorce application on your spouse because you do not know their whereabouts you need to take reasonable steps to find their address The steps you need to take involve:  Reasonable efforts to locate spouse  Contact family and friends  Contact last known place of employment  Contact last know place of accommodation  Search electoral role  File a supporting affidavit to dispense with normal service this needs to show the Court what steps you have taken to ensure service  Application in a case  Maybe ordered to place an advert in paper

15 Divorce – What if you cannot serve your spouse? Court may agree to dispense with normal service, though can order you to serve the documents on the parent’s of your spouse MUST TAKE REASONABLE EFFORTS

16 Divorce - Hearing Attendance in court generally only be required if you have children under the age of 18. Federal Magistrates Court only Request permission to appear by phone or electronic communication if over 250 kms away  Need to fax a written application to the Federal Magistrates Court  A form from the Federal Magistrates Court needs to be used

17 Divorce – Decree Nisi and Decree Absolute If your application for divorce is approved in Court you will be granted a ‘decree nisi’ on that day Following this one month later you will receive a ‘decree absolute’ and you will be free to remarry CHANGE YOUR WILL

18 Terminology The terminology in regards to Parenting Orders has changed, it is no longer:  Custody  Residency Now it is referred to as:  Child lives with  Child spends time with  Orders made in favour of

19 Parenting Orders - Obligations On Lawyers Amendments to the Family Law Act in 2006 introduced greater obligations on lawyers with regards to Parenting Orders Must give the client information relating to non-Court based family services and Court Processes.  The legal and possible social effects of the proposed proceedings on children  The services provided by family counselors and family dispute resolution  The steps in proceedings  The role of family consultants  Counseling facilities in relation to separation  Relationships Australia  Costs

20 Parenting Orders - Obligations On Lawyers The following brochures must be given to clients:  Marriage, Families and Separation  Pre-action Procedures for Parenting Orders  Family Consultants  Costs notice x 2  Relationships Australia for Compulsory Family Dispute Resolution Relationships Australia is the place to go in regards to Compulsory Family Dispute Resolution, mediation & parenting plans.

21 Parenting Orders Parenting Orders come under the Family Law Act 1975 How Court determines the substance of Parenting Orders:  What is in the best interests of the child by examining:  The benefit of the children having a meaningful relationship with both parents  The need to protect the children from physical or psychological harm from being subjected to, exposed to, abuse, neglect or family violence  Any views expressed by the children and any factors that the Court thinks are relevant  The likely effect and change in circumstances will have on the children

22 Parenting Orders  The willingness and ability of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent  The practical difficulty and expense of the children spending time with and communicating with a parent  To provide for the needs of child including emotional and intellectual needs  The children are of paramount consideration  The maturity, sex, lifestyle and background of the children and of either of the children’s parents

23 Parenting Orders  This includes Aboriginal and Torres Strait Islander backgrounds  Whether either party has failed to take the opportunity to participate in making decisions about major long-term issues in relation to the children, spending time with the children and communication Under the Family Law Act there is a presumption of:  Equal and shared parental responsibility for the child or children’s long-term welfare, care and development  That both parents spend significant and substantial time with the children – unless not practicable.  That both parents have involvement in the children’s day to day routine unless not practicable. If equal and shared responsibility for the child is found the Court will then assess if it is in the best interest of the children that they spend equal and shared time with their parents

24 Parenting Orders Examples of what Parenting Orders can be comprised of:  Equal and shared responsibility for the child or children’s long- term welfare, care and development  The children live with the mother or father  The children spend time with the mother or father  Alternative weeks living with the mother or father (50/50)  The children spend time with the mother or father on a particular week night  Children spend time with mother or father on alternate Thurs/Fri/Sat/Sun

25 Parenting Orders  Regular weekly phone communication  Alternative or shared Easter  Alternative or shared Christmas  Shared school holidays  That the children spend time with the father on Father’s Day, and same with the mother  That the children spend time with both parents on their birthdays, and the parents birthdays as well  Any special/religious days at any other time as agreed

26 Parenting Orders  That both parents notify the other of any emergency involving the children  That both parents be able to access and speak to the Doctors about children’s health  Neither parent denigrate the other parent in front of the children  Neither parent can consume illegal substances while having responsibility for the children  Pick up and drop off place for the facilitation of parents spending time with children  Injunctions restraining parents from leaving the state or area

27 Compulsory Family Dispute Resolution The Family Law Act 1975 as amended in 2006 requires parents to obtain a certificate from a registered Family Dispute Resolution practitioner before you file an application for an order in relation to a child. Relationships Australia provide mediation

28 Compulsory Family Dispute Resolution Exclusions to Compulsory Family Dispute Resolution include:  Those lacking the capacity to contribute to Compulsory Family Dispute Resolution  Urgent applications e.g. when a child or children are at risk and their health and wellbeing is going to be or is undermined, parent threatening to take the child interstate or overseas  Applications to the Family Court for Consent Orders  If it is not practicable, for example there is not facilities available to one of the parties  Known family violence  Placing any party in mediation which would put one them at risk

29 Compulsory Family Dispute Resolution Certificates that can be awarded are:  To the effect that the person did not attend Family Dispute Resolution with the other party, and this was due to: Refusal The counselor deems it not appropriate to attend Family Dispute Resolution  Person attended Family Dispute Resolution but did not make a genuine effort to resolve the issue or issues Parents can get a certificate stating mediation can’t take place or in the application have a supporting affidavit of evidence as to how you meet the exceptions criteria

30 Compulsory Family Dispute Resolution If there is known family violence a further form also needs to be submitted to the Court stating that they have attended Relationships Australia and know of the services available to them If you make a knowingly false accusation of family violence costs may be awarded against you

31 Urgent Applications When matters are urgent area:  Child at risk  Parent is threatening to take the child out of the state or country Apply for legal aid straight away to have proceedings initiated as quickly as possible, and in the case of urgent applications legal aid can be approved within 24 hours and then the application can me made Forms and processes

32 Child Recovery Orders Child Recovery Order is a made by the Court requiring the return of a child  Parent refuses to return child  Child at risk

33 Child Location Orders Child Location Orders can be gained through the Family Court to ascertain the whereabouts of the mother/father and the children An example would be a Commonwealth Information Order seeking Orders for Centrelink to provide contact details to the parent’s lawyer  Complex application must seek legal advice

34 Child Relocation Orders Changes to the Family Law Act in 2006 have made it harder to seek Relocation Orders Those who seek a Relocation Order need to show:  Why in best interest to relocate Based on the principles of  Equal and shared parental responsibility for the child or children’s long-term welfare, care and development  That both parents spend significant and substantial time with the children  That both parents have involvement in the children’s day to day routine unless not practicable The Family Court has a duty solicitor available but will mostly likely not take on your case, or fill out forms for you To relocate may effectively undermine the Family Law Act and the best interests of the children

35 Injunctions Restraining Parents Movement The following is taken into account one parent wants to move away with the children from the other parent:  Equal and shared Parenting Orders under the Family Law Act  Involvement in day to day routine  Significant and substantial time to spend with children  Best interest of the children principles make it When one parent is intending to relocate with the children and without the other parents consent then an urgent application in the form of an injunction should be made to prevent the other party from leaving with the children Especially if satisfactory arrangements cannot be agreed as to the other parent spending time with the children

36 Contravention Of Family Court Orders A person will have contravened an Order under the Family Law Act if:  Intentionally failed to comply with the Order  Made no reasonable attempt to comply with the Order  Intentionally prevented compliance with the Order by a person who is bound  Aided or abetted a contravention of the Order by a person who is bound by it

37 Contravention Of Family Court Orders Consequences can be exposed to:  Vary the primary order  Order attendance at a post separation parenting program  Compensate for time lost with a child as a result of the contravention  Require you to enter into a bond  Order you to pay all or some of the legal costs of the other parties  Order you to pay compensation for reasonable expenses lost as a result of the contravention  Require you to participate in community service  Order you to pay a fine  Order you to a sentence of imprisonment

38 Contravention Of Family Court Orders When you are alleging a contravention you need to file:  An application alleging contravention  A supporting affidavit

39 Parenting Plans Parenting Plan scenario’s  Informal agreement is not a Court Order, and not binding  You do not have to see a lawyer, or have a Court Order but it is always advised especially if there is a disagreement and potential for future arguements  It produces stability and clear understanding as to who will have the children and when  It reduces disagreement if a written document exists  Parenting Plan formulated in consultation with Relationships Australia, Riverland Community Legal Service or private lawyers  Minutes of Consent mirror Parenting Plan  Application in Family Court or Federal Magistrates Court: Consent Orders Binding, Formal and consequences for breach of contravention

40 Role Of Family Consultant If no agreement, no consent, no parenting plan or certificate gained – then the application to Court for Orders follows the following process:  Forms  Affidavits  Hearings  Docket system  Family Conference Family Consultants are psychologists or social workers who specialise in child and family issues after separation and divorce

41 Role Of Family Consultant They can:  Help you and the other party resolve your dispute  Assist and advice the Courts and give evidence about your case  Write and provide a report to the Courts about your family  Advise the Courts about the services provided to families by government, community and other agencies

42 Independent Child Representative The Court may make an Order for an independent representative for the child If you have money you will have to pay for this. If not, the Court can make orders for the Legal Service Commission to represent the child

43 Property Division Property Division:  The property settlement must be just and equitable  You do not have to see a lawyer, or have a Court Order but it is always advised especially if there is a disagreement It is best to ensure that property division matters are formally finalised preventing either of the parties from coming back at a later date  Encourage pre-action procedures and strong efforts to reach a resolution is best for both parties it saves the parties time and money if they can come to an agreement without going to Court  If agreement can be reached then a Binding Financial Agreement or Consent Orders can be obtained without either party attending Court In both situations independent legal advice is imperative

44 Property Division  What the Court takes into account when dividing a property:  Future earning capacities  Needs to be taken into consideration if one party is going to earn substantially more than another  Non-financial contributions of both parties to the acquisition, maintenance of the property of the marriage  Financial contributions of both parties to the acquisition, maintenance of the property of the marriage  Who the children are living with generally get a ruling of 60/40 (rule of thumb)

45 Property Division The Court will take into account for the division of property under the Family Law Act 1975: Assets What did you have at the commencement of the relationship What do you have at separation What property was purchased during the marriage  What is included in assets?  House and contents  Vehicles  Investments, stocks, shares, bonds  Furniture, jewelry, art, china, silver, antiques, heirlooms  Books, cameras, wine collection, stamp collection  Electronic equipment, appliances  Records, CD’s, DVD’s etc  Superannuation

46 Property Division  If assets valuation can’t be agreed upon independent valuation will need to be organised at a cost to the parties  Capital Gains Tax  Where any of the assets acquired after 19 September 1985 as you need to take into account any potential capital gains tax issues  Liabilities  What did you have at the commencement of the relationship  What do you have at separation  What do you have now  Tax debt  Under the Family Law Act 1975 you can seek orders binding third parties eg creditors from only recouping part of the debt from either or of the parents – complex area seek legal advice

47 Property Division  Superannuation  Splitting and Flagging Orders may be granted by the Court

48 Property Division  You will need to take into account who has paid these expenses during the marriage, and after separation:  Insurance  Mortgages  Council rates  School fees  Utilities  Maintenance for the children  Must assess whether there is any danger of:  Bank accounts being emptied  Overdrafts increased  Land sold or mortgaged etc  Further debts incurred  Exploitative use of credit cards  Joint accounts being abused  Any other property being sold or disposed of

49 Property Division  If yes, then apply to the Courts for an urgent application seeking an Injunction restraining the other party from disposing or selling the property, and or preventing access to accounts/investments/superannuation funds

50 Property Division Assess if there are any issues regarding:  Gifts  Inheritances

51 Property Division  If marriage is less than five years need to take into account that most relationships take out what they brought in  Re-finance  Choice if one party seeks to purchase matrimonial property  Need to take into account  How much is to be paid out to the other party  Mortgage payments  Contributions  If consent orders are being drafted under the Family Law Act financial statements are required:  Tax returns last three years  Full and frank disclosure

52 Property Division  Property division can be finalised by:  Applications for Consent Orders  Minutes of Consent  Full and final satisfaction of property division of the marriage  Clean break principle  All property of the marriage must be declared, under the Family Law Act 1975 you must give FULL AND FRANK DISCLOSURE TO THE COURT  Binding financial agreement – independent legal advice, lawyer has to sign statement etc about advice etc  Full and final satisfaction of property division  Can be registered in family court

53 Property Division  Once binding financial agreements are finalised and/or Court Orders made by Consent, overturning such will be a serious challenge

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