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      1. Divorce
      2. Domestic Violence
      3. Property Settlement
      4. Parenting Orders
      5. Wills, Probate &
          Estate Disputes
Family Law

1. Divorce

In Australia, a divorce may be obtained in either the Family Court of Australia or the Federal Magistrates Court.

For obtaining a divorce in Australia, you must first satisfy the Court that you have a valid marriage. A marriage certificate, with a sworn translation into English, if necessary, will suffice. If no marriage certificate is available the Court may require you to give some alternate evidence of the marriage prior to granting divorce.

The Court only has power to grant a divorce if the applicant has one of the following attributes: Regards Australia as home; Intends to live in Australia indefinitely; Has lived his or her whole life in Australia; Is an Australian citizen; or Ordinarily lives in Australia and has lived in Australia for the 12 months prior to the making of the application for divorce.

The Court must be satisfied that the relationship has broken down irretrievably. A period of separation of 12 months immediately before filing the application satisfies the Court of this fact. A couple may be separated and still live together provided they satisfy the Court that they are not living as husband and wife. The Court is normally satisfied that separation has taken place by the applicant swearing as to the separation on the application for divorce.

The Court will not grant a divorce in Australia unless it is satisfied that appropriate arrangements for any children are in place. That does not mean those arrangements are formal, nor does it mean that there is no dispute, but rather that the children are at the time of the divorce hearing are being appropriately cared and provided for.

An application for divorce is required to be completed, sworn by the applicant before a lawyer and filed with the correct filing fee paid.

2. Domestic Violence

Apprehended Violence Orders (AVOs) can be made by consent and without any admission of wrongdoing. This can avoid the need for the matter to proceed to a hearing before the court. This can be a cost effective way for parties to resolve a dispute where fear of domestic violence or abuse is an issue. In other cases a full hearing of evidence may be necessary to prove the need for an order to be made. The making of a DVO does not necessarily mean the end of a relationship. In the majority of cases where courts make domestic violence orders, the parties intend to continue living in the same house, but with some protection in place.

There is a range of orders commonly made by the Court in relation to Apprehended Violence Order proceedings. Those common orders are Statutory Domestic Violence Orders and Discretionary Domestic Violence Orders.

The examples of the statutory domestic violence orders are the defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) and/or the defendant must not reside at the premises at which the protected person(s) may from time to time reside or work, or other premises:(Home/premises).

The examples of the discretionary domestic violence orders are as follows:
    1. The defendant must not enter the premises at which the protected person(s) may from time to time reside or work, or other specified premises:(Home/work/premises);
    2. The defendant must not go within of the premises at which the protected person(s) may from time to time reside or work, or other specified premises:(Home/work/premises);
    3. The defendant must not approach, contact or telephone the protected peron(s) except as agreed in writing or for the purpose permitted by an order or directions under the Family Law Act 1975, as to counseling, conciliation, or mediation. The defendant must not approach, contact or telephone the protected person(s) except for the purpose of arranging or exercising access to children as agreed in writing or as otherwise authorized by an order, or a registered parenting plan under the Family Law Act 1975;
    4. The defendant must not contact the protected person(s) by any means (including through a third person) except through the defendant's legal representative;
    5. The defendant must surrender all firearms and related licenses to Police;
    6. The defendant must not approach the protected person(s) within twelve (12) hours of consuming intoxicating liquor or drugs; and
    7. The defendant must not destroy or deliberately damage or interfere with the property of the protected person(s).

3. Property Settlement

Property settlement occurs when the matrimonial asset pool is divided up between the parties to the marriage. It takes into account all income, all assets and all liabilities. Essentially the courts look at the parties' financial and non-financial contributions and future needs. In many cases the contributions of homemaker are important particularly for long term marriages. Although property matters may be dealt with between the parties this may be unwise and it is always best to formalise any agreement by consent orders. Where independent legal advice and consent orders are not sought then it is highly likely that one party to the arrangement would be significantly disadvantaged. In these matters the court always takes into account what is fair and reasonable and it is always best to obtain independent legal advice before doing so as it is the best method available to ensure that both parties are properly protected.

As a general rule although parties have to wait at least 12 months prior to the time they divorce they do not have to do so in the case of property settlement. The Family Law Court has extremely extensive powers in the area of property settlements and can make orders to adjust the interests of parties in any property. In fact when the court is asked to make an order it requires that it has all information before it so that it may do this fairly and reasonably. As a result the court requires all information about all income, assets and liabilities both here and overseas so that proper consideration can be given to the adequacy of any property settlement including income derived from assets held in or on trust. Superannuation is one of those assets which now falls into the matrimonial pool and may require to be split.

The Court considers four key factors in assessing property settlements.

1) The Court will ascertain the net asset pool of both parties.

The net asset pool is the total value of all the assets owned by either or both parties. The net asset pool includes anything acquired before or during the relationship, as well as after separation.

In ascertaining the net asset pool, the Court will also consider other financial resources over which a party has influence, control or prospective entitlements.

Ascertaining the net asset pool can be highly complicated. Accurate valuation of assets requires that many factors are taken into consideration, such as issues regarding taxation, stamp duties, and the appreciation or depreciation of asset values.

2) The Court will assess the contributions from both parties (both financial and non-financial).

There are many types of contributions that may have been made by either spouse. The Court considers all of the following: financial contributions, non-financial contributions (as a homemaker or primary carer of children), gifts, bonuses and inheritance and initial contributions (assets attained before marriage).

3) The Court will assess the future needs of both parties:

The Court takes into account many factors when deciding on the future needs of both parties. These include age and health, capacity to earn money, the property and assets of each party, new relationships (and new financial circumstances) and future parenting responsibilities (care and support).

4) The Court will consider the practical effect of the proposed property settlement, and whether it is ¡°just and equitable¡± to both parties. The decision is made taking into account all of these factors.

4. Parenting Orders

Before the courts make a parenting order they always consider what is in the best interests of the child which involves the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from harm or abuse, neglect or family violence.

There is now a resumption of equal shared parental responsibility unless there are issues which point to family violence or child abuse or where it would not be in the best interests of the child. Where the court finds that there is equal shared parental responsibility it must look to both parents sharing equal time with children and where this is not practicable then the option becomes substantial and significant time spent with any child. Where parents cannot agree then the best option is to apply for court orders. Orders can be changed or varied particularly where one party cannot reasonably comply with it.

A parenting order in relation to a child may be applied for by either or both the child's parents; or the child; or a grandparent of the child; or any other person concerned with the care, welfare or development of the child.

5. Wills, Probate & Estate Disputes

When making a will it is absolutely necessary that it is drafted with precision to ensure that your intentions will receive full force and effect allowing all of your nominated beneficiaries to share in your estate in the manner in which you intended. Even where wills have received care and attention when drafted it is essential to bear in mind that not only the main beneficiaries but others may also have a right to claim on your estate eg. under the Family Provisions Act.

Many wills are being contested today because a class of beneficiary(s) surfaces after the demise of the testator and the will fails to reflect the testator¡¯s true state of mind with respect to these individuals at the time the will was made.

Obviously there is a lot to think about whether you be testator or testatrix, executor, beneficiary or a person whom the deceased has overlooked where they were responsible for your welfare. Irrespective prudence dictates that you obtain competent, independent, legal advice to guide you to your desired outcome.

LSB Lawyers is able to assist clients with the following: Contested Wills & Estate Disputes, Executor¡¯s, Family Provision Act claims, Probate, Inheritance Disputes, Intestacies & Mistakes, Making a Will and Restructuring of Assets.


      P: 02-9746-3588             Email : info@lsblawyers.com.au

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