Mcphee Lawyers

Services

  • My ex-partner and I get on well. Can we come and see you together?

    Generally speaking it is a conflict of interest to see both parties.  It is great if you have an amicable relationship and we work towards maintaining that.  We would have a meeting with you alone and discuss how to finalise your agreement.  Contact us if you would like to make an appointment for an initial consultation.

  • I have reached an agreement with my ex-partner. Do I still need to see a Solicitor?

    We would recommend you obtain at least initial legal advice to ensure the agreement reached is just and equitable and drawn up in a way that is legally binding and enforceable.  Contact us if you would like an initial consultation.

  • What happens if my ex-partner will not agree?

    If negotiations between the parties are unsuccessful, then proceeding to Court may be the only option to progress the matter.  Matters that are before the Court can still be agreed upon by consent at any time during the process.  Just because you have filed in the Court does not necessarily mean your matter will go to trial.

  • What happens if I go to Court?

    Sometimes we will recommend to you that you should issue an application in a Court.  We will usually make this recommendation if we consider that you will obtain a better result by issuing an application. Sometimes we will make this recommendation because the other side is not being responsive or is being obstructive. We will discuss this with you at the time of the recommendation. Of course, it is always your choice whether you want to issue proceedings or not.

    Issuing an application does not necessarily mean that you will have to go to trial. All Courts have compulsory mediation and conciliation procedures that ensure an early resolution if possible. Only a small fraction of cases actually go to trial. The rest are settled “out of court”, by consent (consent orders). Consent orders can be made at any stage during the proceedings.

    There are generally time delays from when you issue proceedings to when the proceedings finally come on for trial. This can vary from 6 to 18 months. You will have to attend Court at least once before a trial.

    Each Court has different procedures once proceedings are issued. If you are married or not married and separated from your partner after 1 March 2009, or the issue is in relation to children, the proceedings will be in either the Family Court or the Federal Circuit Court. If you are not married and you separated before 1 March 2009 and the issue relates to property, the proceedings will be issued in the Magistrates Court, District Court or Supreme Court depending on the amount that you claim. Applications for protection orders are dealt with by the state Magistrates Courts.

    Each of the Courts have websites that you’ll find on our ‘Links‘ page which provide more information about their processes.

    Talk to us if you are unsure about anything.

  • Do I have to go to Court?

    If the parties can agree on settlement terms, then no, you do not necessarily need to go to Court.  If the parties cannot agree on settlement terms, there are various dispute resolution processes available, such as family dispute resolution, mediation, and collaboration which the parties can utilise before having to go to Court.

  • How long does the Court process take?

    There is no definitive answer to this question.  The Court process can take anywhere between 3 weeks to many years depending on the complexity of the matter, the willingness of each party to reach an agreement and the type of matter.

  • What is the cheapest and quickest way to resolve my family law matter?

    The simple answer to this is by agreement.  The more amicable the parties are, the easier and cheaper it is to resolve matters.

  • We have separated. What are the grounds for divorce?

    The grounds for divorce are the irretrievable breakdown of marriage as evidenced by 12 months’ separation between the parties to the marriage. Separation occurs when one or both of the spouses form the intention to sever or not to resume the marital relationship. This can include separation under one roof.

  • How do I apply for divorce?

    To obtain a divorce you need to have been separated for 12 months. Once you have been separated for 12 months you can apply for a divorce and, provided there is no likelihood of reconciliation, the divorce order will be made.  There are particular rules that govern the calculation of the 12 month separation requirement where parties have reconciled and then separated again.  There is no longer any requirement to show “fault” to obtain a divorce.

    Applications for divorce are filed in the Federal Circuit Court of Australia. The Application can be filed by one party alone or jointly by the parties.  When your Application is filed you are given a hearing date. The application must then be served on the other party.

    You will need to attend the Court if you are applying alone and you have children under 18. Otherwise the Court can, if you want, deal with the application in your absence.

    At the hearing the Court will assess whether the ground for divorce has been established (irretrievable breakdown of the marriage) and whether the other party has been properly served.  The Court will also make sure that there are adequate arrangements in place for the care, welfare and development of any children of the marriage. There are also particular requirements to meet in situations where the parties lived separately and apart under the one roof and where the Application is made less than 2 years after a marriage.

    So long as you have made out the ground for divorce, can prove to the Court that your Application was properly served and can show the Court that there are adequate arrangements in place for any children of the marriage, your application can proceed successfully. Your spouse need not attend at the hearing.

  • What is collaborative law?

    Please see ‘Collaborative Law’.

  • What is a pre nuptial agreement?
  • What is a de facto relationship?

    A de facto relationship is a relationship between two people (whether same or opposite sex) who are unmarried and unrelated but living together on a genuine domestic basis.

  • I am in a de facto relationship. Am I entitled to a property settlement?

    Possibly.  To be eligible to apply for a property settlement the parties must:

    • Have lived together for at least two years; and/or
    • Have had a child together; and/or
    • Have made a significant contribution to the other’s property.

    There is a time limitation in relation to de facto property matters.  You must issue a Court Application within 2 years of the date of separation.  After that time leave of the Court will be required.

  • I am married. Am I entitled to 50% of the asset pool?

    There are many factors to be considered when determining the distribution of a matrimonial asset pool.  Factors include contributions (both financial and non-financial) and future needs of the parties.  The Court must also be satisfied that any agreement reached is just and equitable.  See ‘Property Matters’.

    Applications for property matters must be filed within 12 months of a Divorce Order issuing.  After that time leave of the Court will be required.

  • Am I entitled to a portion of my ex-partner's superannuation?

    Superannuation is treated by the Court as property available for distribution between the parties. See ‘Property Matters’.

  • My ex-partner is now bankrupt. Can the trustee in bankruptcy take all the property?

    The bankruptcy trustee is able, and in some cases obliged, to participate in proceedings between a bankrupt and his or her spouse. Your (ex) partner upon becoming bankrupt is unable to participate and make submissions to the Court about property that has vested in the Trustee.  The Court will not afford priority to unsecured creditors over your interests in property and will make Orders that are just and equitable in the circumstances.

  • Can the Court set aside final property Orders?

    Yes. The Court can set aside property Orders in circumstances where there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, giving false evidence or any other circumstance. The Court can also set aside property Orders if circumstances have arisen that make it impractical to carry out the Order, or if circumstances of an exceptional nature have arisen relating to the care and welfare of a child of the marriage and the applicant would otherwise suffer hardship.

  • What is Domestic Violence?
  • What is mediation?

    Please see ‘Mediation’.

  • What is Family Dispute Resolution?

    Family Dispute resolution is a process in which a family dispute resolution practitioner helps separated or divorced parties to resolve their disputes with one another. The practitioner is independent of all the parties. Except in certain emergency circumstances, prior to filing any parenting application in the Court, the parties must attempt Family Dispute Resolution (“FDR”).  If the FDR is unsuccessful, the FDR practitioner will issue a Section 60i Certificate.  This Certificate will then need to be filed with any Application made in the Court for parenting orders.

  • What is a Family Report?

    A Family Report is a written report prepared by a psychologist or a social worker and is usually appointed by the Court or jointly instructed by the parties in relation to their parenting dispute.  The purpose of the Report is for the psychologist or social worker to make recommendations about the future care arrangements for the children.

  • Are child maintenance and spouse maintenance the same?

    No they are not.  Please see ‘Spouse Maintenance’ and ‘Child Support and Child Maintenance’.

  • My ex-partner has taken the children. How can I find them?

    You can apply for a Commonwealth location order. A location order requires a person, or the Secretary of a Department or Commonwealth instrumentality, to provide the Registrar of the Court with information that the person has about the child’s location.

  • What is the Hague Convention?

    The Hague Convention is aimed at discouraging international child abduction by parents.  There are currently 83 member countries.  The Convention is in place to ensure that children who have been internationally abducted by their parents are returned to their country of habitual residence.  Please see ‘Interstate and International Matters’.

  • Am I entitled to 50/50 care of my children?

    Children have a right to have a meaningful relationship with each of their parents.  What is in the best interests of the children will determine what parenting arrangements are put in place.  Please see ‘Parenting Matters’.

  • How old do the children need to be before the Court will accept their views?

    The Court is simply required to give the child’s views such weight as the court considers appropriate in the circumstances of the case. The Court will attach varying degrees of weight to a child’s stated wishes depending on, among other factors, the strength and duration of the wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issues before the Court and their longer term implications. Generally the older the child, the more weight will be placed on their views, however this will always be considered in light of the case as a whole.

  • What happens if my ex-partner ignores parenting Court Orders?

    A person can be punished for contravening a Parenting Order without reasonable excuse.  Penalties for failing to comply with a Parenting Order can include varying the original Order, make up time, costs and compensation orders, community service, a fine or imprisonment.

    Contravention of a Court Order is a serious issue.  If you would like to discuss a contravention, please contact us today.

 

Mcphee Lawyers
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