Judge allows divorce papers to be served via Facebook

Facebook has been a place for people to promote their new single status for years, but now it also has the power to help people legally reclaim their single life. In a landmark ruling, a New York City judge had declared that Facebook messages are an acceptable way to serve divorce papers, according to the New York Daily Post.

Manhattan Supreme Court Justice Matthew Cooper has given permission for a nurse named Ellanora Baidoo to serve her elusive husband Victor Sena Blood-Dzraku through a private message on Facebook.

Her lawyer Andrew Spinnell will message Mr. Blood-Dzraku, through her account, once a week for three consecutive weeks or until Mr. Blood-Dzraku acknowledges it.

While the first Facebook message was sent out last week, Mr. Blood-Drzaku has yet to respond.

Mr. Spinnell said the new law was necessary and noted that it had been incredibly difficult to try to serve Mr. Blood-Szraku by traditional methods.

“We tried everything, including hiring a private detective — and nothing,” Mr. Spinnell said.

Mr. Blood-Dzraku who has no fixed address or place of employment occasionally keeps in touch with his 26-year-old wife on the phone and through Facebook, the ruling said according to New York Daily News.

The post office has no forwarding address for Mr. Blood-Dzraku, who refused to make himself available to be served divorce papers.

‘There is no billing address linked to his prepaid cell phone, and the Department of Motor Vehicles has no record of him,’ the ruling added.

Mr. Spinnell says the couple married in a civil ceremony in 2009 but noted that the relationship began to unravel when the defendant reneged on his promise to a traditional Ghanaian wedding ceremony as well.

As a result, the couple from Ghana never consummated their marriage and the husband and wife never lived together.

Newsbreak – April 7

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So does any of this apply to Australia?

The answer is YES! It could also happen in Australia.

Normally documents are served in two ways in Australia that are acceptable to the Court.  The first means of service is personal service which cannot be done personally by the applicant.  A Process Server is engaged (or a friend or relative) to serve the documents.  Normally a photo is provided so that the respondent can be identified.  Car registration details and other information which would assist in identifying the respondent are normally provided.  The Process Server is required to ask questions to properly identify the person served.  The Process Server is then required to complete an affidavit of service setting out all relevant information in regard to the service of the documents in which the affidavit is filed with the Court.

The second acceptable means of service is by post.  Included with the documents to be served is a document titled “Acknowledgement of Service” which the respondent is required to sign and return.  If this document is signed and returned then the applicant is required to identify the signature of the person served in an affidavit titled “Proof of Signature” and this is filed with an affidavit of service setting out the details of the service of the documents by post.

If the respondent fails to complete the Acknowledgement of Service then personal service is required.

If however the whereabouts of the respondent is not known an application can be made for substituted service nominating a suitable means of service which would enable the respondent to be made aware of the proceedings before the Court.

An application can also be made for the whereabouts of the respondent to be provided by the Department of Social Security if the respondent is known to be receiving government benefits.

Before an application is made for substituted service the Court must be satisfied that all appropriate means to locate the respondent have been exhausted and the whereabouts are unable to be established.  This may mean inquiries with relatives, friends, the last place of employment, and so forth.

If the Court is satisfied the respondent will gain knowledge of the proceedings by substituted service then service may be ordered by Facebook, email, or posted to a known close relative or some other acceptable means.

In response to the article in question, yes the documents may be served by Facebook if the Court deems that to be an acceptable means of service.

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Article Source: Divorce Papers 

A DISCUSSION ABOUT CHILD CUSTODY

 

Did you know the term ‘Child Custody’ is no longer referred to in the Family Law Legislation?

It was the term used previously by the Family Court. It was considered that Child Custody donated property rights to children that are that one party owned the children whilst the other party had the rights to have the children visit from time to time.

It was considered that the term should be changed to the children living with one party and spending time with the other party. These are the terms that are now used by the Court when making parenting orders. This came into effect in 2006.

Decisions in cases involving disputes about where the children should live and how much time they should spend with the other parent or other significant adults in their lives are now made pursuant to the Family Law Act.

The Attorney General when making changes to the Family Law Act summarised the principles as follows:

“The law will take the view that parenting is a responsibility which should be shared and, in most cases, parents will need to consult and agree on major issues affecting their children.”

“Where both parents share responsibility, consideration will also be given to the children spending equal or at least substantial time with both parents providing that this is practical and not contrary to the best interests of the child.”

It was the intent of the legislation to changing the culture around family separation.

The changes to the legislation were designed to support and promote shared parenting and encourage people to reach an agreement about parenting of children after separation. Changes made were to encourage parents to take responsibility for resolving disputes themselves and not in an adversarial manner.

Has the Government’s wishes in this regard been achieved? I think not.

The Federal Government also introduced family relationships centres being centres where parties are required to mediate matters relating to the parenting of their children. A number of family relationship centres were established in the Brisbane area. It is a requirement now that where parenting issues cannot be determined that the parties must first attend a mediation to try and resolve the parenting issues amicably and the family relationship centres were established for this purpose. Unless there are urgent matters requiring urgent attention or where the welfare of the children is in jeopardy then the Courts may hear applications in regard to the parenting of children without the parties attending on mediation. The parties can attend mediation at other centres such as Relationships Australia if they so wish. The persons conducting the mediation must issue a section 601I certificate confirming that mediation had been appointed and this certificate must be filed with the Court with any application by a party concerning his/her children. A Court will not hear a child custody application regarding parenting without such a certificate being filled with the Court.

These principles relate to all children under the age of 18 years that is prior to children becoming adults, whether the parties are married or unmarried.

The Family Law Act and therefore the Federal Circuit Court (Family Court) applies in all states of Australia except Western Australia. Western Australia did not refer its legislative powers in regard to family law to the Federal Parliament and now operates its own Court system in relation to such matters.

When considering parenting issues the overriding principal the Court must apply is that the best interests of the children are the paramount consideration. That is the Court is required to protect the rights of children and promote their welfare. The principal overrides the wishes and desires of either the mother or the father. The principal was established in an English decision. ‘When all the relevant facts, relationships, claims and wishes of parents, risks, choices, and other circumstances are taken into account and weighed, the course followed will be that which is most in the interests of the child’s welfare.

INTERESTS OF CHILDREN

Section 60B of the Family Law Act states that the best interests of children are met by;

1. ‘ensuring that children have the benefit of both of their parents, having a meaningful involvement in their lives, to the extent consistent with the best interests of the child’; and
2. protecting the child from physical or psychological harm from being subjected to or exposed to, abuse, neglect, or family violence; and
3. ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
4. ensuring that parents fulfill their duties and meet their responsibilities, concerning the care, welfare, and development of their children.

Section 60B(2) of the Family Law Act states that except when it is or would be contrary to the child’s best interest;

1. ‘children have a right to know and be cared for by both their parents; and
2. children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents or other relatives);
3. parents jointly share duties and responsibilities concerning the care, welfare, and development of their children;
4. parents should agree about the future parents of their children; and
5. children have a right to enjoy their culture.’

In regard to the children having a right to enjoy their culture the rights of Aboriginal and Torres Straight Island children to access, explore and appreciate their particular culture is clearly, and distinctly, set out in the principles of the Family Law Act.

One wonders if this principal would also apply to other cultures such as the Muslim, Jewish, Hindu, or other such cultures in which the children have been raised or in which the parents have an interest. As stated it clearly applies to Aboriginal or Torres Straight Island children. I am unaware of these principals being applied in relation to other cultures.

Section 64B(2) of the Family Law Act sets out particulars of parenting Orders that the Court can make. The section sets out the following provisions;

1. the persons with whom a child should live;
2. the time a child is to spend with another person;
3. the allocation of parental responsibility for a child;
4. the form of consultations to be had between persons who share responsibility; and
5. the communication a child is to have with another person.

There is an underlying presumption in the family law legislation that the parents of a child have a shared parental responsibility that is that parents share a shared parental responsibility in making decisions about major long-term issues affecting their children. A parent cannot unilaterally make a decision in regard to such long-term issues without the consent and consultation with the other parent. A major long-term issue in regard to a child is something that could be related to the care, welfare, and development of the child and could include but would not be limited to the child:

• name, health, and education (both current and future);
• religious and cultural upbringing; and
• changes to the child’s living arrangements that may make it significantly more difficult for the child to spend time with either parent.

DAY TO DAY PARENTING

Day-to-day parenting of a child does not normally fall within the definition of shared parental responsibility. Parents are not obliged to consult each other on issues that are not major long-term issues. This means that the parent with whom the child is spending time will usually not need to consult with the other parent about the day-to-day decisions for that child in such circumstances in regard to the meals to be provided to the child, what the child wears, or what activities the child will be involved in, whilst residing with that parent.

However, unilaterally enrolling a child in a sporting or other activity which would affect the other parent’s time with the child may be considered a shared parental responsibility in which case the consent of the other parent should first be obtained.

If a court decides that the parents have shared parental responsibility for their child, the Court must consider whether the child spending equal time with the parents is in the child’s best interests and reasonable practicable and if so the Court must then consider making an Order for the child to spend equal time with their parents. If equal time is not practicable and not in the child’s best interests, the Court must then consider whether the child should spend substantial and significant time with the other parent.

However, the overriding principal of what’s in the child’s best interests must always apply when making decisions in regard to shared parental responsibility and the parties spending equal time with the child or significant time with the child.

Clearly, the Family Law Legislation covers every aspect of a child’s life and the parenting of that child.

The majority of matters proceeding to a trial in the Family Court relate to children’s issues, the requirements for parents to seek counseling or mediation prior to bringing any application in the Court has not deterred to any great degree, the number of applications which are made in the Court relating to parenting of their children. When considering the best interest of a child the Family Law Act set’s out other considerations.

These are:

• any views expressed by the child and any factors (such as the child maturity level or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
• the nature of the relationship of the child with:
• each of the child’s parents; and
• other persons (including any grandparent or other relative of the child);
• the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
• the likely effect on any child in the child’s circumstances including the likely effect of any separation from;
• either of his or her parents; or
• any other child or person (including any grandparent or relative of the child) with whom he or she has been living;
• the difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense with substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
• the capacity of:
• each of the child’s parents;
• any other person (including any grandparent or other relative of the child); and
• to provide for the needs of the child, including emotional and intellectual needs;
• the maturity, sex, lifestyle, and background (including lifestyle, culture, and traditions) of the child and either of the child’s parents and any other characteristics of the child the Court thinks are relevant;
• if the child is an aboriginal child or Torres strait island child;
• the attitude to the child, and to the responsibilities of parenthood, demonstrated by the child’s parents;
• any family violence involving the child or a member of the child’s family;
• any family violence order that applies to the child or the member of the child’s family if;
• the Order is a Final Order; or
• the making of the Order was contested by a person;
• whether it would be preferable to make the Orders that would least likely to lead to the institution of further proceedings in relation to the child; and
• Any other factor or circumstances that the Court thinks is relevant.

The Court will also look at a parent’s involvement in the past parenting of the child and whether that parent has shown interest in the parenting and development of the child.

It is interesting to note that the legislation does consider other persons apart from the parents when making Orders in regard to children. That is persons that have a significant interest in a child’s life such as grandparents or relatives also have rights to that child and the Courts will consider any application by such persons to continue with their parenting or involvement in a child’s life. In most cases, persons who have a significant interest in a child apart from the parents are normally subordinate to the parents’ rights and in most cases, any application brought by such persons the Courts will consider their rights to a continuing relationship to the child and how that effects the primary parent’s roles in regard to such parenting.

Article Source: CHILD CUSTODY

5 Common Family Law Myths

Our family lawyers chime in on their top 5 family law myths that you may not know about…

1. A Couple needs to live together for 6 months to qualify as a de facto relationship.

We hear this one a lot, and we don’t know where it comes from! The Family Law Act says that in order to commence proceedings for a property settlement, a de facto relationship must have lasted for at least 2 years, or the couple must have a child or the party to the de facto relationship who applies for the order or declaration made substantial contributions and a failure to make the order or declaration would result in serious injustice to the applicant.

2. As soon as you “hit the threshold” of a de facto relationship, all of your property and assets will be divided equally with the other person in the event of a split.

Whilst, in theory, this is a possibility, there are a number of factors that the Family Law Act specifies a Court must take into account when deciding a property settlement division, and there is no automatic assumption of an equal split.

3. If 2 parents who have separated have children and those children spend equal amounts of time with each parent, then no child support is payable.

Whilst on the face of it we can see why this is a common assumption, in practice, this is not the way it works. If either parent applies to the Child Support Agency they will use a formula set out in the legislation to work out if child support is payable, and if so, how much. The amount of nights a child spends with each parent is one factor, but there are others, including how much each parent earns.

4. If you didn’t get married in Australia you can’t get divorced in Australia.

Again we can understand why this seems possible, but in fact, it is not the case. If one spouse is an Australian Citizen, or regards Australia as their home and intends to live here permanently, or ordinarily lives in Australia and has done so for 12 months prior to filing an application, then an Australian Court has the power to grant a divorce. That is of course provided that the couple was validly married in another country.

5. The Court will “punish” the person who is at fault for the breakdown of the relationship.

When we meet with clients for the first time, we are often asked about the consequences of behaviour and whether behaviour is relevant – in effect will the Court decide who is at fault for the relationship breaking down, and will that affect the property settlement outcome. Whether you think that is a good or a bad thing perhaps depends on your perspective, but the legal position in Australia is that the Court will not investigate the reasons behind the relationship ending.

What do you think? Check out some of our other blog posts:

• Mental Illness In The Workplace

• Discrimination on Public Transport

• Is Surrogacy Legal In Australia?

Contact
United Service Club
Level 4, 183 Wickham Terrace, Brisbane QLD 4001

Free: 1800 217 217
Phone: 07 3236 0001
Fax: 07 3236 0005

Email: mail@aylwardgame.com.au 

Article Source: Family Law Myths 

Many couples separate and can agree on what they wish to happen in relation to a distribution of the asset pool (property settlement) and if there are children, the arrangements that they wish to put in place for the children’s future.

When couples are in agreement the options for formalising the property settlement and arrangements for the children are:

• Consent Orders
• Parenting Plan
• Financial Agreement

These options are discussed in more detail under the children and financial issues sections of this booklet.

WHAT HAPPENS IF COUPLES ARE UNABLE TO AGREE ON FINANCIAL AND CHILDREN’S ISSUES?

There are a number of ways to resolve diffences after a relationship has broken down.

1. Counselling
2. Collaborative Practice
3. Mediation
4. Family Law Litigation

1. Counselling

Counsellors can help you to work through problems after the breakup. You can find qualified counsellors in private practices, as well as in government and community-based organisations.

Counselling works best if you and your partner attend sessions of your own free will. However, if you and your partner go to the Family Court, you may be ordered to attend Counselling before a decision is made by the Court.

If Counselling does not prevent your relationship from breaking down it can still help with resolving emotional issues that result from the separation. It is a good idea to shop around to find a counsellor with whom you feel comfortable and confident.

2. COLLABORATIVE PRACTICE – THE NEW ALTERNATIVE TO LITIGATION

Collaborative practice is a popular dispute resolution method developed in the United States in the early 1990s. It has gained rapid popularity in the United States, the United Kingdom, and Canada. Now Collaborative practice is available to help people in Australia

Benefits of Collaborative Practice

• You have the benefit of being advised and supported by your lawyer at all times.
• The outcomes are generally faster than traditional negotiation methods and most certainly quicker than court outcomes.
• The outcomes are certain and long-lasting because they are owned by you as you assisted in creating the outcomes.
• The process promotes co-operation in the future, particularly where long-term investments are involved.
• Resolutions are reached in a dignified and respectful way.
• The outcomes are often tailor-made and more creative providing fairer settlements. 

The collaborative practice may be suitable for you and your partner if both of you: 

• Wish to spare your children from the emotional damage litigation can cause.
• Accept personal responsibility in moving forward and reaching an agreement.
• Believe it is important to create healthy and more holistic solutions for your future.
• Understand and embrace the necessity to make full and frank disclosure about financial issues.

The collaborative practice may not be suitable for you and your partner if either of you:

• Have a primary aim to seek revenge against your former spouse or partner.
• Are looking for a “soft option”.
• Believe the procedure will pressure your spouse or partner to agree to your wishes.
• Want to avoid giving certain financial information to your spouse or partner.
• Where your relationship has experienced domestic violence or any form of abuse. If this is the case, the lawyers will first have to determine whether Collaborative practice is appropriate. It may be that other professionals are required to be involved to assist and support you through the process and to ensure that your interests are promoted and protected.

Make your own decisions

The Collaborative approach will enable you and your partner to resolve your issues respectfully so that you can arrive at dignified solutions to your dispute with your partner and maintain a sound relationship with each other in the future, especially if long-term financial interests are involved. In the Collaborative practice process, emphasis is placed on reaching an agreement, rather than having to ‘battle it out in Court’.

Commitment to the non-confrontational dispute resolution

In the Collaborative practice, you will be asked to sign a Participation Agreement so that you demonstrate your commitment to resolving your differences with your partner in a respectful manner, with full and frank disclosure of information, and with a minimum of conflict. Open communication will build an environment of trust. This trust will help you, your partner, and both of your lawyers to work together in finding workable solutions to your dispute.

In Collaborative practice, you and your partner and your lawyers will work together to share information and to arrive at solutions through a series of meetings. Your lawyer will never negotiate deals without your active participation. A major benefit of Collaborative practice is that you and your partner can each contribute to the compromised agreements that you make together, instead of having to settle with a decision imposed upon you by the Court.

Total ‘out-of-Court’ settlement with Collaborative practic 

At the commencement of the collaborative process all parties and their lawyers will enter into a Participation Agreement. Pursuant to the terms of the Participation Agreement the parties agree that they will not litigate their matter in the Family Court. This means that if either you or your partner decides to commence proceedings in Court and continue with such proceedings during the collaborative process, your collaborative lawyer will not be able to represent you in the collaborative process they will only be able to refer you to another trusted practitioner to handle your Court case.

How does it all work?

Collaborative practice is different from going to Court. You will be in a room with your lawyer as well as your partner and their lawyer. Both lawyers will be properly trained in the collaborative approach. We all work together towards the common goal of resolving the dispute between you and your partner, with emphasis on retaining your dignity and best interests.

You will have your collaborative lawyer advising and assisting you throughout the negotiations. The playing field will be more even between you and your partner, because you and your partner will have your respective lawyers to support you, as well as other professionals if necessary and with your consent.

The integrated approach of Collaborative practice

Collaborative lawyers often work with other professionals, such as accountants, financial planners, valuers, counsellors and mental health professionals, who are trained in the collaborative approach. These people will work together with your collaborative lawyers with your consent with a focus on developing an overall dispute resolution package that will provide both you and your partner with security and direction.

Note: In Collaborative practice, your lawyer and your partner’s lawyer will draft your agreement in legal terms.

3. MEDIATION

Overview of Mediation

Mediation is a voluntary process, but the Family Court may order that you and your partner participate in mediation, depending on your circumstances. Only you, your partner and the Mediator will be part of the Mediation process. Depending on the level of conflict and personal dynamics of the relationship between you and your partner two Mediators may be necessary.

Role of the MediatorIf the Family Court orders mediation or you and your partner agree, you may be allowed to have your lawyer present in the mediation. The Mediator’s role is to assist communication between you and your partner so that you can have open discussions and negotiate a settlement.

The Mediator’s aim is to facilitate open communication between you and your partner so that you can:

• identify issues of the dispute;
• generate options to address these issues; and
• agree upon ways to resolve the issues (i.e. ‘settlement’).

The Mediator’s role is essentially a neutral one.  The Mediator:

• will not take sides;
• will work with both you and your partner to help you negotiate your own decisions together; and
• will not represent either of you in Court either before or after the Mediation.

Characteristics of Mediation

• All decisions in mediation will be made by you and your partner, not the Court or anyone else.
• Mediation will help you to identify important issues that relate to your assets and finances and/or care arrangements for your children.
• Mediation is readily accessible, making it fast and efficient.
• Mediation is a popular form of alternative dispute resolution.

THE MEDIATION PROCESS

1. Fact finding and isolation of issues

At this stage the Mediator will obtain from you as much relevant information as possible, identifying the issues to be discussed and identifying any underlying conflict which may be associated with such issues. The issues will deal with such matters as property, financial assistance and the children.

Once the issues have been identified, the Mediator will then establish an agenda setting out the order in which the issues should be dealt with and which you believe would be the most appropriate way of dealing with such issues.

2. Creation of options and alternatives

At this point, you and your partner will be looking at all the options and alternatives which could apply and which could be of assistance in resolving the issues which have been identified. By dealing with the options and alternatives, you will determine the most effective way of dealing with each issue. At this time, the Mediator will encourage you to be as creative as possible in setting up these options and alternatives.

3. Negotiation and decision-making

At this point, you will be:

1. Choosing options which you can best live with;

2. Ensuring that you fully understand the details and implications of each proposal and what their consequences will be for you. This stage of the process may extend over one or two sessions. As you could imagine there will be a lot of discussion at this point in reaching agreement on those options and alternatives.

4. Clarification of agreements reached

Hopefully, agreements will be reached on issues which have been isolated and discussed, and the Mediator will then prepare a written draft setting out your concerns, intentions, the facts agreed and decisions which have been reached. The agreement can also deal with your future dealings and relationships.

5. Review of Process

At this point you can look at the matters that need to be made legally binding and determine the future review procedures required, if any.

6. Implementation stage

This really speaks for itself in that the agreement is then put into practice.

What is the difference between Collaborative Practice and Mediation?

Mediation involves an independent neutral professional who facilitates discussions between the parties and helps them to reach an agreement. The Mediator does not provide legal advice to either party during the discussions.

In Collaborative practice, the lawyers provide advice to their clients and help them assess realistic options. The lawyers then support the clients through the negotiation process to reach an agreement.

Costs associated with the Collaborative Practice and Mediation

• Initial consultation with your lawyer.
• Assistance of the lawyer to complete a short history statement, if necessary.
• Assistance of the lawyer to provide full disclosure of documents, if necessary.
• Attendance by the lawyer in the Mediation session and in the Collaborative meetings.
• Attendance by the lawyer in the Mediation, or throughout the entire collaborative process.
• Preparation of consent documents by the lawyers.
• Involvement of the lawyer throughout the collaborative process.

Other information relating to costs of Collaborative practice and Mediation

• Discussions and agreement on the payment of the fee.
• The fee may be a shared arrangement.
• The costs of the Mediator will be agreed prior to the commencement of the process.
• Because of the short duration for the preparation for attending on and completion of the Mediation and Collaborative practice processes, the costs are limited.

Cost of Collaborative practice Mediation compared to Litigation

Because Mediation and the Collaborative process resolve matters speedily and amicably, the financial and emotional damage normally caused by Litigation will be avoided by you, your family and your friends.

Mediation and Collaboration will also serve to minimise conflict between you and your partner, so that you can make amicable decisions regarding your finances and other personal interests. It will form a basis for your ongoing relationship with each other.

How is Collaborative practice different from traditional Court proceedings?

When one party commences Court proceedings they file an Application with the Court setting out the orders they want the Court to make. Both parties then go through a sequence of Court proceedings and conferences and hearings that can take many months or possibly years before they have a final trial where a Judge makes a decision as to what orders will be made.

Through Collaborative practice, separating couples and their lawyers work together, sometimes with other professionals such as relationship therapists, valuers, accountants and financial planners, to find out what each party wants and how that can be achieved. The Court is not involved in this process and no documents are filed with the Court whilst the negotiations are ongoing. If an agreement is reached, the parties can elect for it to be drafted as a consent order to be lodged at the Court or to be incorporated in a binding financial agreement.

Don’t be frightened to make enquiries and conduct your own research. It is better to be empowered with legal and other knowledge than to worry about problems that may not exist.

Invitation: You are welcome to arrange an obligation free 20 minute consultation with one of our qualified lawyers, to discuss your circumstances.

Efficiency of Collaborative practice and Mediation

Dispute resolution via Mediation or Collaborative practice can be arranged in a timely manner and satisfactory outcomes can be reached relatively quickly. With either method, negotiations usually take place either over a number of sessions, or during one day, depending on the complexity of the dispute. By using either Mediation or Collaborative practice settlements can usually be reached after 6 to 8 hours of negotiation. Sometimes, Collaborative practice may take longer depending on the complexity of the dispute and whether other support professionals need to be consulted.

4. Family Law Litigation

Overview

Family Law exists to deal with legal issues resulting from separation. Our principal Ian Field is an accredited Family Law Specialist. We can provide you with advice that will empower you with knowledge of your legal rights and obligations following the end of your relationship. Our advice to you can also assist you in negotiating a settlement with your partner because you will have better knowledge of how to effectively deal with your partner’s needs and requests.

Family Court of Australia

The Family Court of Australia is the final resource available to you to reach settlements on issues in dispute. The Family Court is conscious of the expense involved in resolving issues and the emotional turmoil that is normally associated with the breakdown of a relationship. The Family Court will make orders on matters requiring urgent attention.

Financial issues relating to marriages can be brought before the Family Court:

• at any time after separation; and
• up to 12 months (1 year) after the granting of the divorce.

Financial issues relating to de facto relationships can be brought before the Family Court within a period of 24 months (2 years) after a separation of the relationship.

the matter is urgent;Parties who wish to make an application in relation to children’s issues (other than an Application for Consent Orders) must first participate in family dispute resolution in an attempt to resolve the care arrangements in relation to children. A party must file a mediation/counselling certificate together with their application for children’s orders unless one of the following circumstances apply:

• one or both parties are unable to participate in family dispute resolution;
• there has been or is a risk of family violence by one party of the parties; and
• there is a risk of abuse of a child/children by one of the parties.

The Federal Circuit Court

The Federal Circuit Court offers a Court system parallel to the Family Court. This Court also has other federal jurisdiction, including bankruptcy. It combines its federal jurisdiction with family law matters

The purpose of the Federal Circuit Court is to provide a faster, less expensive and less complex option for litigants and also to ease the workload of the Family Court. This allows the Family Court to focus on complicated matters that require the attention of a superior Court Judge.

The use of conciliation counselling and mediation will be strongly encouraged in appropriate cases, using both community-based counselling and mediation and the Family Court services.

The Federal Circuit Court shares its jurisdiction with the Family Court and the Federal Court. The Federal Circuit Court legislation includes provisions that enable Federal Circuit to develop procedures that are simple and as efficient as possible, including power to make rules to set time limits for witnesses and to limit the length of both written and oral submissions.

Costs of Proceedings in the Family Court or the Federal Circuit Court

Normally, each party pays their own costs associated with the Court proceedings. In some instances, a party may seek a ‘Costs Order’ against the other party in their application brought before the Court.  The Courts do have discretion to award costs against the other party in certain circumstances.

Costs may be awarded where the proceedings that have been instituted are frivolous or for some other reason the party was unreasonable in opposing or bringing applications. Costs are awarded on the actual work relating to the Court proceedings and are based on the Family Court scale, at the discretion of the Court or an indemnity basis.

Fact: An overwhelming majority of cases are resolved by agreement between parties. Historically, only 4% of matters in the Family Court have required a judicial decision.

 

Marriages Families and Separation factsheet

Link to the Queensland Collaborative Law website

http://qcl.org.au/

FROM OUR LINKS DROPDOWN

Feeling Stressed

Article Source: Separation And Divorce