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Dec 28

How to Make Changes to a Parenting Order

By Mediations Australia parenting plans, Family Law, Mediation

In Australia, parenting orders are made by a court to determine the arrangements for the care, welfare, and development of a child, including where the child will live and the time they will spend with each parent. These orders can be varied, or changed, if there has been a significant change in circumstances since the original order was made.

To vary a parenting order, you will need to file an application with the court and provide evidence of the change in circumstances that has occurred since the original order was made. This may include changes in the child’s needs, the financial circumstances of the parents, the living arrangements of the parents, or any other relevant factors.

The court will consider the best interests of the child when deciding whether to vary a parenting order. In making this decision, the court will consider the child’s physical, emotional, and educational needs, as well as the capacity of each parent to provide for those needs.

It is important to note that the court will generally only vary a parenting order if it is necessary to do so in the best interests of the child. If you are seeking to vary a parenting order, you should consider seeking legal advice to help you understand your options and the likelihood of success.

Parenting orders are made under the Family Law Act 1975 and are designed to ensure that the best interests of the child are met.

Parenting orders can be made in relation to children of any age, and can cover a range of issues including:

Who the child will live with
Who the child will spend time with
How much time the child will spend with each parent
The communication that will take place between the child and each parent
Any other matters that the court considers relevant to the care, welfare, and development of the child.

Parenting orders can be made by a court as part of the process of separating or divorcing, or they can be made separately in cases where the parents are not married but have a dispute over the care of the child. If the parents are able to reach an agreement about the arrangements for their child, they can apply to the court for consent orders, which will formalize their agreement. If the parents are unable to reach an agreement, they may need to attend court to have a parenting order made by a judge.

Section 70NBA: Variation of a Parenting Order

Section 70NBA of the Family Law Act 1975 sets out the legal test that the court must apply when considering whether to vary a parenting order. This section states that the court must not vary a parenting order unless it is satisfied that there has been a change in circumstances since the order was made and that the variation is necessary to meet the best interests of the child.

The court will consider a range of factors when determining whether there has been a change in circumstances, including:

Any changes in the child’s needs
Any changes in the financial circumstances of the parents
Any changes in the living arrangements of the parents
Any other matter that the court considers relevant
The court will also consider the best interests of the child when deciding whether to vary a parenting order. In making this determination, the court will consider the child’s physical, emotional, and educational needs, as well as the capacity of each parent to provide for those needs.

Section 70NBB: Varying a Parenting Order With Parenting Plans

Section 70NBB of the Family Law Act 1975 sets out the legal test that the court must apply when considering whether to vary a parenting order that has been made in accordance with a parenting plan. This section states that the court must not vary a parenting order that has been made in accordance with a parenting plan unless it is satisfied that:

There has been a change in circumstances since the order was made
The variation is necessary to meet the best interests of the child
The change in circumstances was not contemplated by the parenting plan when it was made

The court will consider a range of factors when determining whether there has been a change in circumstances, including:

Any changes in the child’s needs
Any changes in the financial circumstances of the parents
Any changes in the living arrangements of the parents
Any other matter that the court considers relevant
The court will also consider the best interests of the child when deciding whether to vary a parenting order. In making this determination, the court will consider the child’s physical, emotional, and educational needs, as well as the capacity of each parent to provide for those needs.

It is important to note that the court will generally only vary a parenting order if it is necessary to do so in the best interests of the child. If you are seeking to vary a parenting order that has been made in accordance with a parenting plan, you should consider seeking legal advice to help you understand your options and the likelihood of success.

Varying a Parenting Order: Final Parenting Orders

Final parenting orders are court orders that determine the long-term arrangements for the care, welfare, and development of a child. These orders are made in cases where the parties have been unable to reach an agreement about the care of their child, or where there are significant disputes that need to be resolved by a court.

Final parenting orders can be varied if there has been a significant change in circumstances since the order was made. To vary a final parenting order, you will need to file an application with the court and provide evidence of the change in circumstances that has occurred. The court will then consider the best interests of the child when deciding whether to vary the order.

It is important to note that the court will generally only vary a final parenting order if it is necessary to do so in the best interests of the child. If you are seeking to vary a final parenting order, you should consider seeking legal advice to help you understand your options and the likelihood of success.

Using Mediation to Change Parenting Orders

Mediation is a form of alternative dispute resolution that involves the use of a neutral third party, known as a mediator, to facilitate communication and negotiate a resolution to a dispute. Mediation can be an effective way to resolve conflicts, including disputes over parenting arrangements, as it allows the parties involved to have more control over the outcome of their dispute and to come to an agreement that works for them.

If you are seeking to vary a parenting order, you may be able to use mediation to help resolve your dispute. In this case, you and the other party would attend mediation sessions with a mediator, who would help you communicate and negotiate an agreement about the changes you are seeking to make to the parenting order. If you are able to reach an agreement, the mediator can help you formalize the agreement in a consent order, which can then be filed with the court.

It is important to note that mediation is voluntary, and both parties must agree to participate in order for it to be effective. If you are unable to reach an agreement through mediation, you may need to go to court to have the parenting order varied by a judge.

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Dec 28

Mediation or Litigation. What is the Best?

By Mediations Australia Mediation

As a family lawyer with 20+ years of experience, I help clients choose between mediation and litigation daily. This comprehensive guide will help you understand which path best suits your situation.

In family law cases in Australia, parties have the option of resolving their disputes through either mediation or litigation. Both approaches have their own benefits and drawbacks, and the right option for a particular case will depend on the specific circumstances of the case.

Mediation is a voluntary, confidential process in which a trained mediator helps the parties communicate and explore options for resolving their disputes. The mediator does not have the power to make decisions or impose settlements, but can help the parties reach an agreement on their own. Mediation can be faster and less expensive than litigation, and can also be less stressful and more amicable for the parties.

Litigation is a legal process in which the parties present their case to a judge or jury, and a decision is made based on the evidence and arguments presented. Litigation can be more formal and adversarial than mediation, and can be more expensive and time-consuming. However, it may be necessary if the parties are unable to reach an agreement through mediation or other means.

When deciding whether to pursue mediation or litigation in a family law case, it is important to consider the specific issues in the case, the parties’ goals and priorities, and the resources available to them. A lawyer or mediator can help you understand your options and make an informed decision.

The History of Mediation

Mediation is a process in which a trained mediator helps parties to a dispute communicate and explore options for resolving their differences. The use of mediation as a means of resolving disputes has a long history, and has been practiced in various forms in many different cultures around the world.

One of the earliest known examples of mediation is the use of the “wise woman” or “wise man” in ancient societies, who would be called upon to resolve disputes within the community. The process of mediation has also been used in traditional systems of justice, such as the indigenous justice systems of many cultures.

In more recent times, the formal use of mediation as a means of resolving disputes has developed into a distinct profession, with trained mediators facilitating the resolution of disputes in a wide range of contexts, including family law, workplace disputes, and commercial disputes.

Mediation has gained popularity as an alternative to litigation, as it can be faster, less expensive, and less adversarial than going to court. It is now widely recognised as an effective means of resolving disputes, and is used in many countries around the world.

Does Mediation Work?

Mediation can be an effective way to resolve disputes in a wide range of contexts, including family law cases. Mediation is a voluntary, confidential process in which a trained mediator helps the parties communicate and explore options for resolving their disputes. The mediator does not have the power to make decisions or impose settlements, but can help the parties reach an agreement on their own.

Mediation can be particularly effective in family law cases because it allows the parties to address the underlying issues that have led to the dispute, and to come up with solutions that meet their needs and the needs of any children involved. Mediation can also be faster and less expensive than litigation, and can be less stressful and more amicable for the parties.

That being said, mediation is not a one-size-fits-all solution, and it may not be appropriate in all cases. In some cases, the parties may be too far apart in their positions or may have other issues that make it difficult to reach an agreement. In these situations, litigation may be necessary.

Overall, whether mediation will work in a particular case will depend on a variety of factors, including the parties’ willingness to communicate and negotiate, the complexity of the issues, and the resources available to the parties.

The Mediation Methodology in Family Law

In family law cases in Australia, mediation is a voluntary, confidential process in which a trained mediator helps the parties communicate and explore options for resolving their disputes. The mediator does not have the power to make decisions or impose settlements, but can help the parties reach an agreement on their own.

There are several different approaches to mediation, but most mediators follow a similar process:

Intake: The mediator will meet with the parties separately to gather information about the case and to assess whether mediation is an appropriate option.
Joint session: The mediator will bring the parties together for a joint session to discuss the issues in the case and to explore potential solutions. The mediator may use a variety of techniques, such as active listening, questioning, and reframing, to facilitate communication and help the parties understand each other’s perspectives.
Breakout sessions: If necessary, the mediator may have the parties work separately in breakout sessions to consider different options or to negotiate a settlement.
Closing: If the parties are able to reach an agreement, the mediator will help them draft a written agreement that reflects the terms of the settlement. If the parties are unable to reach an agreement, the mediator may provide them with feedback or refer them to other resources, such as a lawyer or a support group.

Overall, the goal of mediation is to help the parties resolve their disputes in a way that is mutually satisfactory and that takes into account their needs and the needs of any children involved.

Getting Mediation Ready

Being “mediation ready” in a family law case means being prepared and willing to participate in mediation, which is a voluntary, confidential process in which a trained mediator helps the parties communicate and explore options for resolving their disputes. Here are a few steps you can take to ensure that you are “mediation ready”:

Understand the process: Familiarize yourself with how mediation works and what to expect. You may want to speak to a lawyer or mediator to get a better understanding of the process.
Identify your goals: Think about what you want to achieve through the mediation process and what is most important to you. This will help you focus on the issues that matter most and be prepared to negotiate a settlement.
Gather relevant information: Make sure you have all of the information that you will need to present to the mediator, such as financial statements, parenting plans, and any other relevant documents.
Be open to compromise: Mediation is about finding a mutually satisfactory solution, so be prepared to consider different options and to compromise on certain issues.
Be respectful: Mediation is a collaborative process, so it is important to approach the process with respect and to be open to the other party’s perspective.
By following these steps, you can help ensure that the mediation process is productive and that you are able to reach an agreement that meets your needs and the needs of any children involved.

The Stress of Family Law Litigation

Litigation in family law cases can be a stressful and emotionally challenging experience for all parties involved. The process can be time-consuming, costly, and adversarial, and it can be difficult to predict the outcome of a case.

There are several factors that can contribute to the stress of family law litigation:

The uncertainty of the outcome: When a case goes to trial, the parties are at the mercy of the judge or jury, and it can be difficult to predict how the case will be decided. This uncertainty can be stressful for all parties.
The cost of litigation: Litigation can be expensive, and the parties may have to pay for legal fees, court costs, and other expenses. This can be a financial burden and can add to the stress of the process.
The emotional toll: Family law cases often involve sensitive and emotional issues, such as child custody and property division. The process of litigating these issues can be emotionally draining, and can take a toll on the parties and any children involved.
The impact on relationships: Litigation can be adversarial and can strain relationships between the parties, which can be particularly difficult if the parties have children together or if they have a long history together.

Overall, the stress of family law litigation can be significant, and it is important for the parties to have support and resources to help them manage their emotions and navigate the process.

The Benefits of Mediation

Mediation can be an effective way to resolve conflicts because it allows the parties involved to have more control over the outcome of their dispute, as opposed to having a resolution imposed on them by a judge or jury in a litigation process.

There are several reasons why mediation may be a better option than litigation:

Cost: Mediation is typically less expensive than litigation, as it involves fewer legal fees and expenses.
Time: Mediation is often quicker than litigation, as it does not involve the same level of pre-trial procedures and discovery.
Privacy: Mediation is generally a more private process than litigation, as it is held in a confidential setting and the parties are able to control who is present.
Control: In mediation, the parties are able to have more control over the outcome of their dispute, as they are able to negotiate and come to an agreement that works for them. In litigation, the outcome is decided by a judge or jury.
Relationships: Mediation can help preserve relationships between the parties involved, as it allows them to communicate and work towards a resolution rather than engaging in a combative legal process.

Overall, mediation can be a useful tool for resolving disputes in a cost-effective, timely, and private manner, while also helping to preserve relationships between the parties involved.

At Mediations Australia, regardless of what is best for your circumstance, We have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne, Sydney, Brisbane and all other locations in Australia. Get legal advice from us today!

Dec 27

Final Hearing in Family Law Disputes

By Mediations Australia Family Law

What is a final hearing in family law in Australia?

A final hearing in family law in Australia is a court proceeding in which a judge makes a final decision on the issues in a family law case. These issues may include matters related to the care and protection of children, property division, and spousal maintenance. The final hearing is usually the last stage of the court process, and it is typically held after the parties have had the opportunity to present their evidence and arguments to the court.

In a final hearing, the judge will consider all of the relevant evidence and arguments presented by the parties and will make a decision based on the best interests of the children and the principles of fairness and justice. The judge may also issue orders or make declarations that are binding on the parties, such as orders for child support or orders for the sale of the property.

It is important for parties to a family law case to be prepared for the final hearing and to present their case in a clear and persuasive manner. Parties should also be prepared to comply with any orders or declarations made by the court, as failure to do so may result in further legal proceedings.

What is the first Court event in family law?

In family law cases in Australia, the first court event is typically a case management hearing. This is a short hearing that is held early in the court process, and its purpose is to manage the progress of the case and ensure that it is dealt with efficiently.

During the case management hearing, the judge will discuss the issues in the case with the parties and their lawyers, and may make orders or give directions to help move the case forward. The judge may also set dates for future court events, such as mediation or a final hearing.

It is important for parties to a family law case to attend the case management hearing, as failure to do so may result in the case being dismissed or the party being penalized. Parties should also be prepared to discuss the issues in their case and any orders or directions that the judge may wish to make.

What are Interim Hearing in Family Law in Australia

An interim hearing in family law in Australia is a court proceeding that is held during the course of a family law case, before a final decision is made. The purpose of an interim hearing is to address any urgent or interim issues that need to be resolved before the final hearing. These may include issues related to the care and protection of children, such as temporary orders for child custody or parenting arrangements.

During an interim hearing, the parties have the opportunity to present evidence and arguments to the court, and the judge will make a decision based on the best interests of the children and the principles of fairness and justice. The judge may also issue orders or make declarations that are binding on the parties, such as orders for child support or orders for the sale of property.

It is important for parties to a family law case to be prepared for an interim hearing and to present their case in a clear and persuasive manner. Parties should also be prepared to comply with any orders or declarations made by the court, as failure to do so may result in further legal proceedings.

What is Dispute Resolution Conference in family law?

A dispute resolution conference (DRC) in family law in Australia is a conference that is held to try to resolve disputes between the parties to a family law case. The purpose of a DRC is to help the parties reach an agreement on the issues in their case, without the need for a full court hearing.

A DRC is usually conducted by a family dispute resolution practitioner (FDRP), who is a trained mediator. The FDRP will work with the parties to facilitate communication and help them explore options for resolving their disputes. The FDRP may also make recommendations or suggestions for resolving the disputes, but the parties are free to accept or reject these suggestions.

A DRC is a voluntary process, and the parties are not required to attend or participate. However, if the parties are unable to reach an agreement at the DRC, the case may proceed to a court hearing. It is important for parties to a family law case to carefully consider whether a DRC is the right option for them, and to be prepared to participate in good faith if they decide to attend.

What is a Trial Management Hearing?

A trial management hearing in family law in Australia is a court proceeding that is held to manage the progress of a case that is going to trial. The purpose of a trial management hearing is to ensure that the case is ready for trial and to identify any issues that need to be resolved before the trial takes place.

During a trial management hearing, the judge will discuss the issues in the case with the parties and their lawyers, and may make orders or give directions to help move the case forward. The judge may also set dates for the trial, and may order the parties to attend certain pre-trial conferences or to exchange certain documents.

It is important for parties to a family law case to be prepared for a trial management hearing and to follow any orders or directions made by the court. Parties should also be prepared to present their case at trial, and to be ready to negotiate a settlement if the opportunity arises.

What Does Final Hearing Family Law Include in Australia?

During a final hearing, the parties have the opportunity to present evidence and arguments to the court, and the judge will consider all of the relevant information in making a decision. The judge may also hear from expert witnesses or other third parties, such as social workers or valuers.

The judge will make a decision based on the best interests of the children and the principles of fairness and justice. The judge may also issue orders or make declarations that are binding on the parties, such as orders for child support or orders for the sale of property.

How to Prepare for the Final Hearing in Australia?

If you are involved in a family law case in Australia and are preparing for the final hearing, there are a few steps you can take to ensure that you are well-prepared:

Gather all relevant documents: You should ensure that you have all of the documents that you will need to present to the court, such as financial statements, parenting plans, and any other relevant documents.

Review the court’s orders and directions: Make sure you are aware of any orders or directions that the court has made in relation to the case, and ensure that you are in compliance with these orders.

Understand your case: Familiarize yourself with the issues in your case and be prepared to explain your position to the court.

Prepare your evidence: If you have any witnesses or other evidence that you want to present to the court, make sure you have the necessary documents or other materials ready.

Consider settlement options: If you are open to settlement, consider whether you are willing to negotiate a resolution to your case. You may want to speak to a lawyer or mediator to discuss your options.

Dress appropriately: You should dress in a way that shows respect for the court and the legal process. This means wearing business attire or smart casual clothing.

By following these steps, you will be better prepared for the final hearing and will be in a better position to present your case to the court effectively.

Importance of Seeking Legal Advice from Family Lawyers at Mediations Australia

Seeking legal advice from a family lawyer in Australia is important for several reasons.

First, a family lawyer can provide you with advice and guidance on your legal rights and obligations, and can help you understand the legal process and your options for resolving your case. This can be particularly important if you are unfamiliar with the legal system or are feeling overwhelmed by the legal proceedings.

Second, a family lawyer can help you negotiate a settlement or resolution to your case, which may be faster and less costly than going to trial. A family lawyer can also represent you in court, if necessary, and can advocate for your interests and protect your rights.

Third, a family lawyer can provide you with emotional support and guidance during a difficult time. Family law cases can be emotionally challenging, and it can be helpful to have someone to talk to who understands your situation and can provide you with advice and support.

Overall, seeking legal advice from a family lawyer can be an important step in helping you navigate the legal process and achieve the best possible outcome in your case.

We have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne, Sydney, and all other locations in Australia. Get legal advice from us today!

Dec 18

Consent Orders. All Your Questions Answered. 2023 Update

By Mediations Australia consent orders, Family Law

What are Consent Orders?

A consent order is a legally binding agreement that is made between parties involved in a legal dispute and is approved by a court in Australia. It is used as a way to resolve a dispute without the need for a full trial or hearing.

Consent orders can be made in a variety of legal matters, including family law, civil disputes, and bankruptcy proceedings. They can be used to resolve issues related to property, finances, children, and other matters.

To be effective, a consent order must be agreed upon by both parties and approved by a court. It is usually drafted by a lawyer and then presented to the court for approval. Once a consent order is approved, it has the same legal force as a court judgment.

There are several advantages to using a consent order to resolve a legal dispute. One of the main benefits is that it can save time and money by avoiding the need for a full trial. It can also provide a sense of closure and finality for the parties involved, as the matter is resolved through mutual agreement rather than through a decision made by a judge.

However, it is important to note that consent orders are not appropriate in every situation. They are generally only used when both parties are willing to reach an agreement and are able to negotiate in good faith. If one party is not willing to negotiate or if the dispute is too complex to be resolved through negotiation, a consent order may not be an option.

It is also important to carefully consider the terms of a consent order before agreeing to it. A consent order is a legally binding agreement and once it is approved by a court, it is difficult to change or challenge. Therefore, it is important to seek legal advice before entering into a consent order to ensure that your rights and interests are protected.

Why Think About Content Orders?

There are several reasons why people may choose to apply for a consent order in Australia. Some of the most common reasons include:

To resolve a legal dispute without the need for a full trial: Consent orders provide a way to resolve a legal dispute without the time and expense of a full trial. This can be especially appealing in cases where the parties are able to negotiate in good faith and reach an agreement.
To provide a sense of closure and finality: A consent order can provide a sense of closure and finality for the parties involved, as the matter is resolved through mutual agreement rather than through a decision made by a judge.
To avoid the uncertainty of a trial: Going to trial can be a stressful and unpredictable experience. A consent order allows the parties to control the outcome of the dispute and avoid the uncertainty of a trial.
To maintain privacy: Trials are public proceedings, which means that the details of the case may be reported in the media or made available to the public. A consent order allows the parties to maintain privacy and keep the details of the case confidential.
To save time and money: The legal process can be time-consuming and costly. A consent order can save time and money by avoiding the need for a full trial.

It is important to note that consent orders are not appropriate in every situation. They are generally only used when both parties are willing to reach an agreement and are able to negotiate in good faith. If one party is not willing to negotiate or if the dispute is too complex to be resolved through negotiation, a consent order may not be an option.

Before applying for a consent order, it is important to seek legal advice to ensure that your rights and interests are protected. A lawyer can help you understand the process and ensure that the terms of the consent order are fair and reasonable.

Common Uses of Consent Orders

Consent orders can be made in a variety of legal matters in Australia. Some common examples include:

Family law: Consent orders can be used to resolve issues related to property, finances, and children in the event of separation or divorce. For example, a consent order may be used to divide assets, determine spousal maintenance, or establish parenting arrangements.
Civil disputes: Consent orders can be used to resolve disputes between individuals or businesses, such as disputes over contracts, debt, or property.
Bankruptcy proceedings: Consent orders can be used in bankruptcy proceedings to determine how assets will be distributed and how debts will be repaid.
Employment law: Consent orders can be used to resolve disputes between employees and employers, such as disputes over termination, discrimination, or unfair dismissal.
Consumer law: Consent orders can be used to resolve disputes between consumers and businesses, such as disputes over faulty products or services.

What are the advantages of having consent orders?

There are several advantages to using a consent order to resolve a legal dispute in Australia. Some of the main benefits include:

Saving time and money: Consent orders can save time and money by avoiding the need for a full trial. Trials can be time-consuming and costly, and a consent order can provide a quicker and more cost-effective resolution.
Providing a sense of closure and finality: A consent order can provide a sense of closure and finality for the parties involved, as the matter is resolved through mutual agreement rather than through a decision made by a judge.
Avoiding the uncertainty of a trial: Going to trial can be a stressful and unpredictable experience. A consent order allows the parties to control the outcome of the dispute and avoid the uncertainty of a trial.
Maintaining privacy: Trials are public proceedings, which means that the details of the case may be reported in the media or made available to the public. A consent order allows the parties to maintain privacy and keep the details of the case confidential.
Facilitating cooperation and compromise: Consent orders can facilitate cooperation and compromise between the parties, as they are based on mutual agreement. This can be especially beneficial in cases where the parties need to continue to work together or have ongoing relationships, such as in family law matters.

What are the disadvantages of having consent orders?

While consent orders can offer many benefits in certain situations, there are also some disadvantages to consider. Some of the potential drawbacks of consent orders include:

Limited legal recourse: Once a consent order is approved by a court, it is a legally binding agreement and it is difficult to change or challenge. This means that if one party does not comply with the terms of the consent order, the other party may have limited legal recourse to enforce the agreement.
Loss of control: In a trial, the outcome is determined by a judge or a jury. With a consent order, the parties are responsible for negotiating and agreeing to the terms of the agreement, which means that they may have to compromise or make concessions in order to reach an agreement. This can result in a loss of control over the outcome of the dispute.
Limited options: Consent orders are only appropriate in situations where both parties are willing to negotiate and are able to reach an agreement. If one party is not willing to negotiate or if the dispute is too complex to be resolved through negotiation, a consent order may not be an option.
Risk of being taken advantage of: If one party has more bargaining power or is more experienced in negotiation, there is a risk that they may take advantage of the other party and obtain an unfair agreement. It is important to seek legal advice before entering into a consent order to ensure that your rights and interests are protected.
Need for legal representation: In order to draft and present a consent order to a court, it is generally necessary to have legal representation. This can add to the cost and complexity of the process.

It is important to carefully consider the potential advantages and disadvantages of a consent order before deciding whether it is the right option for your situation. In some cases, a consent order may be the most appropriate way to resolve a dispute, while in other cases, a trial may be a better option.

How Do I Get a Consent Order?

To obtain a consent order in Australia, the following steps should be followed:

Negotiate an agreement: The first step in obtaining a consent order is to negotiate an agreement with the other party or parties involved in the dispute. This may involve discussions or negotiations with the other party or their lawyer, or it may involve the use of alternative dispute resolution techniques such as mediation or arbitration.
Draft the consent order: Once an agreement has been reached, the next step is to draft the consent order. This should be done by a lawyer, who will ensure that the terms of the agreement are clearly stated and legally enforceable.
Present the consent order to the court: The consent order must be presented to the court for approval. This generally involves filing the consent order with the court and providing copies to the other party or parties involved in the dispute.
Attend a court hearing: The court will generally schedule a hearing to consider the consent order. Both parties must attend the hearing, and the court may ask questions or seek further information before deciding whether to approve the consent order.
Obtain court approval: If the court approves the consent order, it will become a legally binding agreement. Both parties are required to comply with the terms of the consent order, and failure to do so may result in legal consequences.

Can an application for a consent order be rejected?

Yes, it is possible for an application for a consent order to be rejected by a court in Australia. The court has the discretion to decide whether to approve a consent order and will consider a number of factors in making its decision.

Some of the factors that the court may consider when deciding whether to approve a consent order include:

Whether the terms of the consent order are fair and reasonable: The court will consider whether the terms of the consent order are fair and reasonable, taking into account the circumstances of the parties and the nature of the dispute.
Whether the consent order is in the best interests of any children involved: In cases involving children, the court will consider whether the consent order is in the best interests of the children, taking into account their needs and welfare.
Whether the consent order is legally enforceable: The court will consider whether the terms of the consent order are legally enforceable and whether they are clearly stated and adequately cover all relevant matters.
Whether the parties have entered into the consent order willingly and without duress: The court will consider whether the parties have entered into the consent order willingly and without duress. If there is evidence that one party has been coerced or pressured into agreeing to the consent order, the court may reject the application.

If the court decides to reject an application for a consent order, it may suggest alternative options for resolving the dispute, such as mediation or arbitration. In some cases, the parties may need to proceed to trial in order to resolve the dispute.

Does a consent order expire?

A consent order is a legally binding agreement that is approved by a court in Australia. Once it is approved, it has the same legal force as a court judgment. As such, a consent order does not expire unless it is specifically stated to be temporary or subject to a specific time period.

However, it is possible for a consent order to be varied or terminated in certain circumstances. For example, a consent order may be varied if there has been a significant change in circumstances that affects the terms of the order. A consent order may also be terminated if both parties agree to do so or if the court determines that it is no longer necessary or appropriate.

It is important to note that the process for varying or terminating a consent order can be complex and may require legal assistance. If you are seeking to vary or terminate a consent order, it is advisable to seek legal advice to ensure that your rights and interests are protected.

What happens when a consent order is breached?

If a party breaches the terms of a consent order in Australia, the other party may have legal remedies available to enforce the order. The specific remedies available will depend on the nature of the breach and the terms of the consent order.

Some potential remedies for a breach of a consent order may include:

Contempt of court proceedings: If a party intentionally breaches the terms of a consent order, the other party may be able to bring contempt of court proceedings against them. If the court finds that the party has been in contempt of court, they may be ordered to pay a fine or may be sentenced to imprisonment.
Damages: If a party breaches the terms of a consent order and this results in a financial loss for the other party, the other party may be able to seek damages to compensate for their loss.
Specific performance: In some cases, the court may order a party to perform a specific action or to take a specific course of action in order to remedy a breach of a consent order.
Variation or termination of the consent order: If the breach of the consent order is significant or ongoing, the other party may be able to apply to the court to vary or terminate the consent order.

It is important to note that the process for enforcing a consent order can be complex and may require legal assistance. If you are seeking to enforce a consent order, it is advisable to seek legal advice to ensure that your rights and interests are protected.

How can Mediations Australia help with consent orders?

One of our lawyers can help with consent orders in a number of ways in Australia. Some of the ways in which a lawyer can assist with consent orders include:

Negotiating an agreement: A lawyer can help negotiate an agreement with the other party or parties involved in the dispute and can provide legal advice on the terms of the agreement.
Drafting the consent order: A lawyer can draft the consent order to ensure that it is legally enforceable and clearly states the terms of the agreement.
Presenting the consent order to the court: A lawyer can present the consent order to the court for approval and can represent the client at any court hearings that may be required.
Advising on the terms of the consent order: A lawyer can advise on the terms of the consent order to ensure that the client’s rights and interests are protected.
Enforcing the consent order: If the terms of the consent order are breached, a lawyer can assist in enforcing the order and can advise on the legal remedies that may be available.

It is advisable to seek legal advice before entering into a consent order to ensure that your rights and interests are protected. A lawyer can help you understand the process and ensure that the terms of the consent order are fair and reasonable.

Dec 10

Commonly Asked Family Law Questions

By Mediations Australia Family Law, Estate Planning

When Can I Get a Divorce in Australia?

In Australia, a couple can apply for a divorce if they have been separated for a period of at least 12 months. This means that the couple must have been living separately and apart for at least 12 months, with no reasonable likelihood of resuming their relationship. The couple must also demonstrate that their marriage has broken down irretrievably. In order to apply for a divorce in Australia, at least one of the parties must be an Australian citizen or a permanent resident of Australia.

What is a Property Settlement in Australia?

A property settlement is a process of dividing the assets and liabilities of a married or de facto couple who are separating or divorcing. In Australia, the Family Court has the power to make orders for the division of property between married couples and de facto couples, including same-sex couples. The court considers a range of factors when determining how to divide the couple’s property, including the financial contributions made by each party, the future needs of each party, and the care and support of any children. The court’s ultimate aim is to reach a fair and just division of the couple’s property.

What is Mediation?

Mediation is a form of alternative dispute resolution that is commonly used in Australia to resolve disputes between parties without going to court. In mediation, a neutral third party called a mediator facilitates communication and negotiation between the parties to help them reach an agreement on the disputed issues. Mediation is voluntary, and the parties have control over the outcome of the mediation. The aim of mediation is to help the parties reach a mutually acceptable resolution of their dispute in a confidential, informal, and cost-effective manner. Mediation can be used to resolve a wide range of disputes, including disputes related to family law, commercial law, and workplace issues.

What is a Parenting Plan in Australia?

A parenting plan is a written agreement that sets out the arrangements for the care of children after their parents have separated or divorced. In Australia, parenting plans are encouraged by the Family Court as a way for parents to reach an agreement on important issues relating to their children’s care, such as where the children will live, how much time they will spend with each parent, and how major decisions about their welfare will be made. Parenting plans are not legally enforceable, but they can help to reduce conflict and provide a framework for parents to communicate and make decisions about their children’s care. The court may take a parenting plan into account when making orders about the children’s care.

What is a Binding Financial Agreement?

A binding financial agreement, also known as a prenuptial or postnuptial agreement, is a legal contract between two individuals who are planning to marry or are already married. The agreement outlines how their assets will be divided in the event of a divorce or separation. These agreements can be useful for protecting the financial interests of both parties, especially if one or both individuals have significant assets or debts. It is important to note that the terms of a binding financial agreement must be fair and reasonable, and the agreement must be properly executed in order for it to be enforceable in court.

What are Consent Orders?

Consent orders are court orders that are made with the agreement of all parties involved in a legal dispute. In Australia, consent orders are commonly used in family law cases to formalise agreements reached between separating or divorcing couples about issues such as property settlement, parenting arrangements, and spousal maintenance. Consent orders are made by the court and are legally binding, so they can be enforced if one party fails to comply with the terms of the agreement. Consent orders can be made in relation to both contested and uncontested matters, and can be applied for at any time during court proceedings. Consent orders can save time, money, and stress by avoiding the need for a contested hearing.

What is a De Facto Relationship in Australia?

In Australia, a de facto relationship is a relationship between two adults who live together on a genuine domestic basis, but are not married or related by family. De facto relationships are recognized under Australian Family law, and de facto couples have many of the same rights and obligations as married couples. In order to be considered a de facto relationship, the couple must have lived together for at least two years, or they must have a child together and be in a genuine domestic relationship. The couple must also not be married to each other, or in another de facto relationship. De facto couples can apply to the Family Court for orders relating to property settlement, spousal maintenance, and parenting arrangements if their relationship breaks down.

How does a Court determine who the child shall live with/spend time with?

In Australia, when parents are unable to agree on arrangements for the care of their children after separation or divorce, the Family Court can make orders to determine who the children will live with and how much time they will spend with each parent. The court’s primary concern when making these decisions is the best interests of the children. The court considers a range of factors when determining the children’s best interests, including the children’s views and preferences, the nature of the children’s relationships with each parent, and any potential risks to the children’s physical, emotional, and psychological well-being. The court may also consider any family violence that has occurred, and the ability of each parent to provide for the children’s needs.

How does a Court determine a property settlement?

In Australia, the Family Court has the power to make orders for the division of property between married and de facto couples who are separating or divorcing. The court uses a four-step process to determine how to divide the couple’s property, which includes:

Identifying and valuing the couple’s property and financial resources, including any real estate, personal property, financial assets, and debts.
Considering the contributions made by each party to the acquisition, conservation, and improvement of the property, including financial and non-financial contributions.
Considering the future needs of each party, including their age, health, financial resources, and the care and support of any children.
Considering any other relevant factors, such as the parties’ conduct, any hardship that may result from the proposed division, and the parties’ ability to support themselves after the property settlement.

The court’s aim is to reach a just and equitable division of the couple’s property, taking into account the factors above and the individual circumstances of the case.

What is spousal maintenance?

n Australia, spousal maintenance is a payment made by one spouse to the other to provide financial support after separation or divorce. Spousal maintenance can be ordered by the Family Court, or it can be agreed upon by the parties and formalized through a binding financial agreement or consent orders. The court can order spousal maintenance on a temporary or permanent basis, and the amount and duration of the payments will depend on the parties’ individual circumstances. The court considers factors such as the parties’ income and financial resources, the standard of living enjoyed during the marriage, and the parties’ capacity to earn an income when determining the amount of spousal maintenance. Spousal maintenance can be paid as a lump sum or as regular payments.

Do I need to formalise my property settlement?

In Australia, it is not necessary to formalize a property settlement through the Family Court in order for it to be legally binding. Couples can reach an agreement on the division of their property through negotiation, mediation, or collaboration, and can then formalize their agreement through a binding financial agreement or consent orders. Formalizing a property settlement through the court can provide certainty and enforceability, and can be helpful if the parties are unable to reach an agreement on their own or if there are significant assets or complex financial issues involved. It is important to note that the court has the power to make orders for the division of property even if the parties have reached their own agreement, so it is always advisable to seek legal advice before making any decisions about property settlement.

Do I need to change my estate planning documents upon separation?

In Australia Family Law, it is advisable to review and update your Will, powers of attorney, and enduring powers of attorney after separating from your spouse. This is because separation can have significant legal and financial consequences, and it is important to ensure that your wishes and instructions are accurately reflected in these documents. For example, if your Will names your spouse as the beneficiary of your estate, you may want to update your Will to reflect your current circumstances. Similarly, if you have granted your spouse power of attorney, you may want to revoke that power and appoint a new attorney. It is also important to review your superannuation and other financial assets to ensure that your spouse is not named as a beneficiary or nominated person. It is recommended to seek legal advice before making any changes to these documents.

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We have a team of family law lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne, Sydney, and all other locations in Australia. Get legal advice from us today!

Sep 05

What Happens to Superannuation if I Separate or Divorce?

By Mediations Australia Family Law, Property Settlement, Superannuation

The regulations governing superannuation splitting permit divorcing couples to appraise and distribute their super benefits after their marriage has ended.

According to the legislation, after a separation, one partner may divide the balance in their superannuation fund and contribute to the superannuation fund of the other partner.

Superannuation is treated as property under the Family Law Act, despite the fact that it differs from other types of property in that it is kept in trust. The super funds are still governed by superannuation legislation and the customary conditions of release; splitting superannuation does not turn it into a cash asset.

What is taken into account when splitting super?

Because every divorce or separation is unique, it is a good idea to get professional guidance from a family lawyer. If not resolved privately, any property division, including superannuation, is likely to be based on the grounds outlined in The Family Law Act of 1975. (Cth).

This may take into account your individual financial and non-financial contributions throughout your relationship, your individual financial requirements and situations following your separation or divorce, any additional assets you’re likely to divide, and a host of other things.

To ensure that any potential tax implications are taken into account, it is crucial to receive guidance on arranging any superannuation settlement.

Please be aware that there is a deadline for submitting a super split application. A smart tip is to make sure you discuss the time restriction with your family lawyer because it differs depending on whether you were married or in a de facto relationship.

Do I qualify for a split of my superannuation? Or do I have to give my ex-partner super?

If you were married or in a de facto relationship before separating, you might be eligible for a superannuation split or you might be required by law to split your superannuation. According to the Family Law Act, a couple is “living together on a true domestic basis” if they are not legally married to one another, are not related by blood, and have a romantic relationship. Unless there is a child or children of the relationship, the party seeking superannuation orders must have been in a de facto relationship with the other party for at least two years. The two-year limit does not apply if there is a child from the partnership or if one person contributes significantly, and an application can be made for superannuation orders even if the relationship ended earlier than two years.

How can super be handled during a separation or divorce?

In a separation or divorce, one of the following three choices is typically available for managing superannuation funds:

Divide the super
The complete superannuation fund may be divided between the former couple, whether by private agreement or by court judgement. In a split, one person’s superannuation is typically divided and shared with the other person; a 50/50 split is uncommon. What each party receives will depend on a number of variables.When super is divided up right away during a divorce or separation, it stays in the superannuation system and isn’t turned into a cash asset. A person is only eligible for a payout if they have reached retirement age or met the requirements for release.
Postpone making a choice
The divorcing or separating spouse may postpone making a decision about how to administer a super account. A flagging agreement is involved, which essentially precludes the super fund from making a payment until the flag is removed.This flag may occasionally remain in place until one of the couple members reaches retirement age, but it is typically employed to guarantee that no withdrawals from the fund are made until a property settlement has been reached.This is not a typical practise, and it is more likely to be observed if one of the pair members is close to retirement age.
Super is taken into account but left alone
In this case, the ex-couple may divide their assets equally, taking into account their superannuation pool, but leaving their super accounts alone and undisturbed. Instead, they may divide their other assets while keeping the superannuation amounts in mind.

How much superannuation do I get from my ex-partner? What possible superannuation obligations might I have?

Parties will often calculate a superannuation split that equalises their superannuation interests in a long-term partnership if neither party had significant superannuation at the beginning of the relationship. In order to do this, the value of the superannuation interests of both parties must be added up, divided by two, and then split between the two parties, with one party’s superannuation interest being used to pay the other party’s fund of choice. As a result, superannuation is distributed equally to both parties.

This isn’t always the case, though. Parties may be able to negotiate a superannuation split customised to their circumstances as part of a larger package of property settlement, either between themselves or with the help of legal representatives. For instance, one party might want a larger portion of the monetary assets in order to buy a house, while the other side might be close to retiring and would prefer to keep their retirement savings. In order to obtain a larger share of the cash assets at settlement, the party seeking the cash assets may give up its superannuation entitlements.

The Courts have a lot of latitude to decide how to divide the parties’ superannuation interests in a fair and just manner. The Family Law Act treats superannuation as property, so if the dispute were decided by a Court, the following four steps would be used to assess each party’s entitlement:

Superannuation must first be valued;
Second, it’s important to evaluate each party’s financial and non-financial contributions to the creation, preservation, and advancement of the superannuation fund;
Thirdly, the Court shall take into account the following factors listed in Sections 75(2) or 90SF(3) of the Family Law Act:
- the parties’ ages and physical condition, their ability to earn a living, if they have children together, and where those children reside.
- the parties’ current financial obligations and liabilities.
Finally, it is determined if the settlement is fair and just given all the facts.

How soon after a divorce or separation can I file a superannuation claim?

If you were a spouse, you must file a superannuation order request with the court within 12 months of the day your divorce decree became final. If a divorce order has not been obtained, you may file a claim for superannuation at any point following your separation.

If you were a de facto partner, you have two years from the date of separation from your partner to file a court application for superannuation orders.

If a party to a marriage or de facto relationship can demonstrate hardship, the Court may grant the party permission to file for a superannuation order after the 12-month or 2-year limitation period. As the party must submit a special application to the Court for permission to proceed outside of the allotted time, this can be a highly costly and difficult process. It is crucial for parties to be aware of deadlines because there is no assurance the court will grant the leave.

What if my ex-partner has a self-managed fund or a defined benefit super fund?

Defined benefit funds provide members benefits in line with a predetermined formula that is laid out in the trust deed establishing the fund. The length of service and retirement wage level of the member are taken into consideration in the formula. It may be necessary to hire a forensic accountant to assess the superannuation interest because these funds are difficult to evaluate precisely.

Private funds that are organized and maintained by the parties themselves, frequently with the help of a lawyer and/or accountant, are known as self-administered super funds. The parties are in charge of investing the fund’s money by buying stocks, bonds, real estate, and other items to raise the fund’s worth. By summing up the value of the assets held by the fund, one can determine the worth of a self-managed super fund. An accountant may need to be hired to help with this process.

We have reached an understanding of how to divide our superannuation interests. How can our agreement be made official?

By signing a Financial Agreement or requesting Consent Orders from the Court, parties can formally ratify their agreement about the split of superannuation.

You can file an application for consent orders and a minute documenting the agreement with the Family Court of Australia. The Orders are enforceable by both parties and the trustee of the superannuation fund once they have been approved by a Registrar of the Court.

A Binding Financial Agreement is another option for parties to formalize their agreement. There is no requirement that a Financial Agreement be submitted to the Court. But before the agreement is signed, each party must have independent legal counsel in order for it to be enforceable and binding. The advice must cover how the agreement will affect the parties’ legal rights as well as the arrangement’s benefits and drawbacks at the time the advice was given. Financial Agreements must be properly structured in accordance with the Family Law Act’s provisions in order to be enforceable and legally binding.

Other things to consider

Superannuation interests can typically be divided. However, in general, any interest with a $5,000 or less withdrawal benefit is not split because it would not be financially advantageous.

Making a choice regarding how to divide a superannuation interest can be delayed or put off. To restrict the superannuation trustee from releasing or handling the superannuation entitlements until a decision is made and the flag is raised, you can create a flagging agreement in this situation.

You must inform the trustee of the superannuation fund of any court orders you are requesting regarding superannuation. The trustee must be given a chance to appear in court and contest the orders you are requesting.

A sealed copy of the superannuation order must be given to the trustee as soon as one is made, whether by consent or following a hearing.

Summary

When a marriage or de facto partnership dissolves, dealing with superannuation in a property settlement may be a challenging procedure. In addition to legal issues, splitting superannuation may have tax repercussions, and the process can be challenging, confusing, and time-consuming.

An adept family lawyer will assist in making the application as precise and effective as feasible and will aid in your comprehension of the procedure and whatever facts you are provided.

What’s Your Next Step?

We have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne, Sydney, and all other locations in Australia. Get legal advice from us today!

Aug 01

How to Sell Property During a Divorce

By Mediations Australia Family Law, Financial Agreements

Selling Property During a Divorce

Divorce is a challenging process on both an emotional and financial level. Unfortunately, the split of a couple’s assets is the one item that cannot be avoided during a time like this. While some couples may go through this without any issues, many find it impossible to distribute their assets on their own.

Priorities should be given to the kind of property the couple is dividing. When a marriage or partnership dissolves, it is common for a number of different types of property to need to be divided. Among the several property types are:

Real estate, such as a vacation home or the family’s primary residence
Superannuation or retirement savings
Investments
money on hand or at a bank
Personal effects
Cars, motorbikes, boats etc

For the sake of this article, we’ll concentrate on the division of real estate, which includes primary dwellings and/or second homes. There are a few options available if the couple owns the asset jointly when selecting how to sell it. A couple can decide between:

Sell the house altogether and divide the proceeds of the sale’s costs.
One spouse or partner may propose to purchase the other’s half of the property and take sole ownership.
Agree to continue being co-owners of the property and rent it out, utilizing the rental income to cover the mortgage and other related expenses. If the couple rents the house for more than it costs to keep it up, they can divide any surplus income between them in line with a written agreement.

The following actions must be taken by the divorcing couple in order to sell real estate:

Determine the property’s true value.
Check to see if the house may be sold for enough money to pay off the outstanding mortgage.
Determine how the profit will be split between the two owners if the property can be sold for more than it will cost to pay down the mortgage.

The third step may be the only one in which actual problems may develop and become challenging to resolve. Several considerations will be taken into account at this point when determining how to divide the cash asset from the sale of the home. Among these elements are:

both parties’ financial contributions toward the home’s initial purchase
Did one party own the house before the marriage?
What were each party’s non-monetary contributions?
The parties’ long-term requirements
The potential earnings of each party
Unpaid debts from the marriage that would need to be settled with proceeds from the sale of the house

It is always preferable if the pair can reach an informal agreement on these matters. The couple may, however, feel that putting the agreement in writing will help safeguard their financial arrangement. The couple’s next course of action is to ask the court for a consent order if they are unable to reach an informal or formal financial agreement on their own. The areas of agreement and dispute between the couple might be presented to the judge for review and decision-making in court. This alternative, meanwhile, is pricy and time-consuming. Therefore, it is always preferable if the couple can reach a written or informal financial arrangement independently.

When the property is finally sold, the proceeds will be distributed in line with the pre-established arrangement, and the couple can then proceed.

While selling real estate and splitting assets during a divorce can be challenging, with careful planning and the aid of specialists with experience in these areas, the process can be made considerably simpler.

How to get a court order to have your ex sell your house

You can obtain a court order to force the sale of the home if your ex-spouse won’t sell it. If you choose this course of action, a judge may order the sale of a house as part of a property settlement. A real estate agent will be chosen to sell the home for that figure as part of the order, which also includes having the property independently evaluated. If the court issues the order, it will often be given to the party who is not impeding the sale and will include a deadline for when the house must be sold.

Please get in touch with one of our family lawyers at Mediations Australia if you need help with this or any other legal matter. We can assist you in Canberra, Perth, Adelaide, Melbourne, Sydney, and all other locations in Australia. Get legal advice from us today!

Jul 29

divorce property settlement examples australia

Divorce Property Settlement Examples in Australia

By Mediations Australia Property Settlement, Family Law

Divorce Property Settlement Examples in Australia

In Australia, when a couple decides to end their marriage, one of the most significant aspects to consider is the division of property. Divorce property settlements can be complex and emotionally charged, requiring careful consideration of various factors. To provide insight into this topic, this article will explore what to expect from a divorce property settlement in Australia, common scenarios that arise during these settlements, ways to divide property, methods to protect assets, strategies for fair negotiation, and the advantages of choosing Mediations Australia for mediation in family law property disputes.

In Australia, property settlement can be reached through various methods, including negotiation, mediation, and court proceedings. Each method has its own benefits and considerations, and it is important to seek legal advice to determine which approach is best for your specific situation.

The Family Law Act 1975 sets out the principles that the court considers when determining property settlement. These principles include:

1. Financial contributions: This refers to the direct and indirect financial contributions made by each party to the acquisition, preservation, or improvement of the property.

2. Non-financial contributions: Non-financial contributions such as homemaking and childcare are also taken into account. This recognizes the valuable contributions made by a spouse who may have forgone career opportunities to support the family.

3. Future needs: The court also considers the future needs of each party, including their age, health, income-earning capacity, and caregiving responsibilities.

It is important to note that property settlement does not always result in a 50/50 split. The aim is to achieve a fair and just outcome based on the individual circumstances of each case. In some cases, a court may order a sale of assets or make adjustments to ensure a fair outcome.

What to Expect from a Divorce Property Settlement in Australia

Entering a divorce property settlement in Australia can be overwhelming, but understanding what to expect can help alleviate some of the stress. Before the settlement process begins, it is crucial to be aware that the court will assess the assets and liabilities of both parties, considering their financial contributions, future needs, and the welfare of any children. It is essential to gather all relevant financial documents, such as bank statements, property valuations, and tax returns, to present a clear picture of the couple’s financial situation.

During the settlement process, it is typical for parties to engage in negotiations either directly or through legal representation. In cases where an agreement cannot be reached, the court may intervene and make a determination based on the presented evidence and applicable laws.

When it comes to assessing the assets and liabilities, the court takes into account various factors. Financial contributions made by each party during the relationship, including income, property, and other assets, are considered. Contributions can also include non-financial contributions, such as homemaking and child-rearing responsibilities.

Future needs are another crucial aspect that the court considers. This includes factors such as the age and health of each party, their respective earning capacities, and whether they have any dependent children. The court aims to ensure that both parties can maintain a reasonable standard of living post-divorce.

Furthermore, the welfare of any children involved is of utmost importance. The court will assess the financial needs of the children and the ability of each party to provide for them. This may include considerations such as education expenses, medical costs, and living arrangements.

Once all the relevant financial documents have been gathered and the court has considered the various factors, negotiations between the parties can begin. These negotiations can take place directly between the spouses or through their respective legal representation. The goal is to reach a mutually agreeable settlement that takes into account the interests and needs of both parties.

However, in some cases, reaching an agreement through negotiations may prove challenging. When this happens, the court may need to intervene and make a determination. The court will carefully review all the evidence presented, including the financial documents and arguments made by both parties. They will also consider the applicable laws and precedents to make a fair and just decision.

It is important to note that the court’s decision may not always align with the expectations of either party. However, the court’s primary objective is to ensure a fair and equitable distribution of assets and liabilities, considering the unique circumstances of each case.

In conclusion, a divorce property settlement in Australia involves a thorough assessment of the assets and liabilities of both parties, taking into account financial contributions, future needs, and the welfare of any children. Negotiations between the parties are common, but in cases where an agreement cannot be reached, the court may intervene and make a determination based on the presented evidence and applicable laws. It is essential to approach the settlement process with a clear understanding of these factors to navigate the process effectively.

Common Divorce Property Settlement Scenarios in Australia

Divorce property settlements vary significantly depending on the couple’s circumstances. Some common scenarios that arise during these settlements include:

Equal division of assets: The court may opt for an equal split of assets if both parties have made relatively equal financial contributions during the marriage.
Unequal division: In situations where one party has made significant non-financial contributions, such as caring for children or maintaining the household, the court may consider an unequal division of assets to address this imbalance.
Business ownership: When one or both parties own a business, the court may consider its value, profitability, and the spouse’s role in its operation during the property settlement.
Contributions post-separation: Financial contributions made by either party after separation, such as payments for mortgage or renovations, will be considered during the settlement process.

Let’s delve deeper into each of these scenarios:

Equal division of assets: In cases where both parties have made relatively equal financial contributions during the marriage, the court may decide to divide the assets equally. This means that each spouse will receive an equal share of the property, including real estate, investments, and other assets accumulated during the marriage. The aim of this approach is to ensure fairness and avoid any perceived advantage or disadvantage for either party.

Unequal division: In certain situations, the court may consider an unequal division of assets to address any imbalance caused by significant non-financial contributions made by one party. For example, if one spouse has dedicated their time and effort to caring for the children or maintaining the household while the other focused on their career, the court may award a larger share of the assets to the spouse who made these non-financial contributions. This recognizes the value of the non-financial contributions and aims to provide a fair outcome for both parties.

Business ownership: When one or both parties own a business, the court takes into account various factors to determine the division of assets. These factors may include the value of the business, its profitability, and the role each spouse played in its operation. If one spouse has actively contributed to the success of the business, their efforts may be recognized by awarding them a larger share of the business or compensating them in other ways. The court aims to ensure that the division of assets takes into consideration the economic value of the business and the contributions made by each party.

Contributions post-separation: Financial contributions made by either party after separation can also be considered during the property settlement process. For example, if one spouse continues to make mortgage payments or invests in renovations to increase the value of the property, these contributions may be taken into account when determining the division of assets. The court aims to recognize and fairly distribute any financial contributions made by either party after the separation to ensure an equitable outcome.

These scenarios highlight the complexity and nuances involved in divorce property settlements. It is important for individuals going through a divorce to seek legal advice to understand their rights and options in order to achieve a fair and satisfactory outcome.

Let’s consider a hypothetical case involving John and Sarah, a couple who have decided to end their marriage. Throughout their relationship, they both worked and contributed equally to their joint finances. They also acquired various assets, including a family home, two cars, a savings account, and some investments.

When it comes to property settlement, John and Sarah have decided to divide everything equally. They both understand the importance of a fair and equitable division, and an equal split seems to be the best solution for them. They agree to sell their family home and divide the proceeds equally, resulting in an equal financial contribution from both parties.

In addition to the family home, John and Sarah decide to sell their two cars and split the proceeds equally as well. They also divide their savings account and investments down the middle, ensuring that each party receives an equal share.

It’s important to note that an equal split may not always be feasible or suitable for every divorce case. In this scenario, John and Sarah were able to come to an agreement based on their financial circumstances and mutual understanding. However, for couples with significant differences in their financial contributions or future needs, an equal split may not be the most appropriate option.

Each divorce case is unique, and property settlement outcomes should be tailored to the specific circumstances of the divorcing parties. It is essential to seek legal advice and consider various factors, such as financial contributions, non-financial contributions, future needs, and the length of the marriage or relationship.

Consider the case of Alex and Emma, a couple who have decided to end their marriage after ten years. Throughout their relationship, Alex had been the primary breadwinner, earning a significantly higher income than Emma. He contributed the majority of the finances towards their joint savings account, investments, and the purchase of their family home. Emma, on the other hand, took on the role of a stay-at-home parent and managed the household and childcare responsibilities.

When it comes to property settlement, Alex and Emma agree to a contributions-based split that takes into account their respective financial contributions during the marriage. They recognize that while they both made valuable contributions to the relationship, there was a significant difference in their financial contributions.

In this scenario, Alex and Emma agree that Alex will retain a larger portion of the assets to reflect his higher financial contributions. They agree to divide the family home, investments, and savings account in a way that ensures a fair and equitable outcome. Emma understands that her financial future may be more challenging, but she acknowledges the significant financial contributions made by Alex throughout the marriage.

It’s important to note that a contributions-based split may not always result in an equal division of assets. This approach acknowledges and reflects the financial disparities that may exist between the divorcing parties. Each case is unique, and property settlement outcomes should be based on the specific circumstances and financial contributions of the parties involved.

Ways to Divide Property in a Divorce Settlement in Australia

When it comes to dividing property in a divorce settlement, there are various methods that can be employed. These include:

Mutual agreement: If both parties can reach a mutual agreement on how to divide their assets, they can create a binding financial agreement or consent orders.
Mediation: Mediation involves engaging a neutral third party to assist in reaching an agreement. Mediation can be an effective method to resolve disputes and avoid costly court proceedings.
Court determination: In situations where parties cannot reach an agreement, the court will make a determination based on the evidence presented and relevant legal principles.

It is essential to consider the specific circumstances of each case when choosing the most appropriate method to divide property.

When opting for a mutual agreement, it is crucial for both parties to engage in open and honest communication. This allows them to express their needs, concerns, and priorities regarding the division of property. By actively listening to each other and being willing to compromise, a fair and equitable agreement can be reached.

Mediation offers a structured and guided approach to resolving property division disputes. The neutral third party, known as the mediator, facilitates communication between the parties and helps them explore various options for dividing their assets. The mediator does not make decisions but assists in finding common ground and reaching a mutually beneficial agreement.

During mediation, the parties have the opportunity to present their perspectives and provide supporting evidence for their proposed division of property. This can include financial documents, valuations, and expert opinions. The mediator helps the parties evaluate the strengths and weaknesses of their arguments, facilitating a more informed decision-making process.

When all attempts at reaching a mutual agreement or mediation have been exhausted, the court becomes the final arbiter in property division. The court will consider various factors, including the financial contributions of each party, non-financial contributions such as homemaking and child-rearing, future needs, and the overall fairness of the proposed division.

It is important to note that court determination can be a lengthy and costly process. Parties involved in a divorce settlement should carefully consider the potential financial and emotional toll of going to court before pursuing this option. However, in some cases, where there is a significant power imbalance or complex financial arrangements, court determination may be necessary to ensure a fair outcome.

Ultimately, the most appropriate method to divide property in a divorce settlement will depend on the unique circumstances of each case. Seeking legal advice from a family lawyer experienced in property division can help individuals navigate the complexities of the process and make informed decisions that protect their interests.

Protecting Your Assets During a Divorce Settlement in Australia

Protecting your assets during a divorce settlement is a crucial consideration. Here are some strategies that can help safeguard your financial interests:

Financial disclosure: Ensure that both parties provide full and accurate financial disclosure to avoid any surprises or hidden assets during the settlement process.
Engage legal representation: Seeking professional legal advice can help protect your rights and ensure that your financial interests are properly represented.
Consider a prenuptial agreement: A prenuptial agreement can define how assets will be divided in the event of a divorce, providing a level of protection for each party.
Seek expert valuation: Obtaining expert valuations for assets such as property, businesses, and investments can help ensure a fair division.

By taking these steps, individuals can strengthen their position during a divorce property settlement and protect their assets.

When it comes to protecting your assets during a divorce settlement in Australia, it is important to be well-informed and proactive. Financial disclosure is a critical step in the process, as it ensures that both parties are fully aware of each other’s financial situation. By providing full and accurate financial disclosure, you can avoid any surprises or hidden assets that may come up during the settlement process.

Engaging legal representation is another important strategy to consider. By seeking professional legal advice, you can ensure that your rights are protected and that your financial interests are properly represented. A skilled divorce lawyer can guide you through the complexities of the legal system and help you make informed decisions that will benefit you in the long run.

One effective way to protect your assets is by considering a prenuptial agreement. This legal document can be drafted before marriage and outlines how assets will be divided in the event of a divorce. By having a prenuptial agreement in place, you can provide a level of protection for both parties and avoid potential disputes over asset division.

In addition to financial disclosure and legal representation, seeking expert valuation for your assets is crucial. Obtaining professional valuations for assets such as property, businesses, and investments can help ensure a fair division during the settlement process. By relying on experts who have experience in valuing different types of assets, you can have confidence in the accuracy and fairness of the division.

Protecting your assets during a divorce settlement requires careful planning and consideration. By taking these steps, individuals can strengthen their position and protect their financial interests. It is important to remember that every divorce case is unique, and seeking personalized advice from professionals is essential to navigate the complexities of the legal system and achieve a favorable outcome.

How to Negotiate a Fair Divorce Property Settlement in Australia

Negotiating a fair divorce property settlement requires patience, preparation, and a focus on achieving a mutually satisfactory outcome. Here are some strategies to consider:

Clear communication is a key factor in successfully negotiating a fair divorce property settlement. Engaging in open and honest communication with your former partner can foster understanding and help identify areas of agreement. By expressing your needs and concerns, you can work towards finding common ground and reaching a fair resolution.

Identifying priorities is another important step in negotiating a fair divorce property settlement. Determine what assets are most important to each party and be prepared to compromise on less significant items to reach an equitable settlement. This requires careful consideration of your financial and emotional needs, as well as an understanding of the value and significance of different assets.

Exploring alternative dispute resolution methods can also be beneficial in reaching a fair divorce property settlement. Mediation and collaborative law are two popular alternatives to resolving disputes without going to court. These methods involve the assistance of a neutral third party who can help facilitate discussions and guide the negotiation process. By choosing these alternative methods, parties can often reach a more amicable and mutually beneficial agreement.

Consulting with professionals is highly recommended when negotiating a fair divorce property settlement. Seeking advice from financial advisors, accountants, and experienced family lawyers can provide valuable insights and ensure that you are making informed decisions. These professionals can help you understand the financial implications of different settlement options and provide guidance on the legal aspects of the process.

By approaching negotiations in a fair and collaborative manner, parties can increase the likelihood of reaching a satisfactory settlement. It is important to remember that the goal is to find a solution that is fair and reasonable for both parties involved. With patience, preparation, and the right support, negotiating a fair divorce property settlement in Australia can be a smoother and more successful process.

Common Mistakes to Avoid During a Divorce Property Settlement in Australia

Divorce property settlements can be complex and emotionally challenging. It is essential to navigate this process carefully to avoid common mistakes that could negatively impact the outcome. By understanding and avoiding these pitfalls, individuals can protect their interests and achieve a fair divorce property settlement.

One common mistake to avoid is the failure to disclose assets. Concealing assets or providing inaccurate financial information can undermine trust between the parties involved and lead to unfavorable outcomes. It is crucial to be transparent and honest about all assets, including properties, investments, bank accounts, and other valuable possessions. By providing accurate and complete financial information, both parties can work towards a fair division of assets.

Relying solely on emotions is another mistake to avoid during a divorce property settlement. While divorce is an emotionally charged process, it is crucial to make decisions based on logic and a clear understanding of the legal principles. Emotions can cloud judgment and lead to impulsive decisions that may not be in one’s best interest in the long run. Seeking support from a therapist or counselor can help individuals manage their emotions and make rational decisions during this challenging time.

Ignoring tax implications is another common mistake that can have unintended financial consequences. Dividing assets without considering the tax implications can result in unexpected tax liabilities or missed opportunities for tax benefits. It is essential to consult with a tax professional or financial advisor who specializes in divorce to understand the potential tax implications of different asset division scenarios. By considering taxes upfront, individuals can make informed decisions that minimize their tax burden and maximize their financial well-being.

Not seeking legal advice is a significant mistake that individuals should avoid during a divorce property settlement. The complexity of divorce property settlements necessitates expert legal advice to navigate the process effectively. An experienced family law attorney can provide guidance on the legal aspects of property division, help negotiate fair settlements, and ensure that all legal requirements are met. By working with a knowledgeable attorney, individuals can protect their rights and interests throughout the settlement process.

In conclusion, divorce property settlements in Australia require careful consideration and avoidance of common mistakes. By being transparent about assets, making decisions based on logic rather than emotions, considering tax implications, and seeking legal advice, individuals can navigate the process successfully and achieve a fair settlement. It is crucial to approach the settlement process with diligence and seek professional support to ensure the best possible outcome.

Property Settlement Statistics in Australia

When it comes to property settlements in Australia, it is essential to understand the statistics surrounding them. These statistics can provide valuable insights into the trends and outcomes of divorce proceedings, helping individuals make informed decisions and ensure a fair and equitable result.

According to recent data, property settlements are a common occurrence in Australian divorces. In fact, around 85% of divorces involve a property settlement, highlighting the importance of this process in ensuring the financial stability and future well-being of both parties. These settlements aim to divide the assets and liabilities acquired during the marriage in a just and equitable manner.

The average duration of a marriage before a divorce occurs in Australia is around 12 years. This means that couples going through a property settlement may have accumulated significant assets and liabilities over that period. Understanding the statistics can help individuals gauge what to expect and how their circumstances compare to others in similar situations.

In terms of asset distribution, the courts aim to achieve a fair division by taking various factors into account. These factors include the financial contributions made by each party during the marriage, the length of the marriage, and the future needs of both individuals. In cases where one party has made substantial financial contributions or has greater future financial needs, the court may deviate from an equal division to achieve a just outcome.

Another important statistic to consider is the resolution of property settlements. While some settlements are resolved through negotiations between the parties, others may require court proceedings if an agreement cannot be reached. Approximately 95% of property settlements are resolved through negotiations or alternative dispute resolution methods, indicating that most couples are able to come to a mutual agreement without resorting to lengthy and costly court battles.

By understanding the statistics related to property settlements in Australia, individuals can gain insight into the prevalence and outcomes of divorce proceedings. This knowledge can help them navigate the process with confidence, seek appropriate legal advice, and work towards a fair and equitable resolution that allows both parties to move forward with their lives.

Negotiating a Property Settlement: The Do’s and Don’ts

Navigating the process of property settlement during a divorce can be complex and overwhelming. However, there are certain dos and don’ts to keep in mind when negotiating your property settlement in Australia. By following these tips, you can ensure that you are advocating for your rights and achieving a fair and equitable outcome.

1. Do Seek Legal Advice: It is crucial to consult with a family lawyer who specializes in property settlement. They can provide you with expert advice and guidance based on your unique circumstances. A lawyer will ensure that your rights are protected and that you are aware of all your legal options.

2. Do Gather All Relevant Information: It is important to have a comprehensive understanding of your financial situation. Collect all necessary documentation, including bank statements, property titles, loan agreements, and superannuation statements. This information will be crucial when determining the division of assets.

3. Do Consider Mediation: Mediation can be an effective method for resolving disputes and reaching a mutual agreement on property settlement. It allows both parties to have a say in the decision-making process and can often result in a more amicable outcome. Mediation also tends to be less costly and time-consuming than court proceedings.

4. Do Prioritize Your Needs: Consider your future financial needs and the needs of any dependents. Think about factors such as your earning capacity, health, and caregiving responsibilities. Understanding your future needs will help you determine what is fair and reasonable in terms of property division.

1. Don’t Rush the Process: Property settlement is a significant aspect of a divorce, and it is important to take the time to thoroughly assess your financial situation and negotiate a fair outcome. Rushing the process may lead to an unfavorable agreement.

2. Don’t Make Emotional Decisions: Emotions can run high during a divorce, but it is important to approach property settlement decisions with a level head. Making decisions based solely on anger or hurt can lead to regret later on. Instead, focus on the long-term financial implications and seek guidance from a legal professional.

3. Don’t Hide or Undervalue Assets: Honesty and transparency are crucial during the property settlement process. Hiding or undervaluing assets can have serious legal consequences. Disclose all assets and liabilities accurately to ensure a fair outcome.

4. Don’t Neglect Your Mental Health: Divorce can take a toll on your mental and emotional well-being. It is important to prioritize self-care and seek support from friends, family, or professionals.

Common Myths about Family Law Property Settlements

Property settlements in a divorce can be a complex and challenging process, and it’s important to have accurate information to navigate it successfully. Unfortunately, there are several common misconceptions surrounding property settlements that can lead to confusion and misinformation. In this section, we will debunk some of these misconceptions and provide clarity on what to expect during a property settlement in Australia.

Misconception 1: “Everything will be divided equally”

One of the biggest misconceptions about property settlements is that all assets and liabilities will be divided equally between the parties. While an equal division is often the starting point, the court will consider various factors, including the financial contributions made by each party, the length of the marriage, and the future needs of both individuals. The goal is to achieve a fair and equitable outcome, which may not always be an equal split.

Misconception 2: “Property settlements only involve physical assets”

Property settlements encompass not only physical assets such as houses and cars but also financial assets, investments, and debts. It is essential to take into account all assets and liabilities acquired during the marriage to ensure a comprehensive and fair division.

Misconception 3: “Superannuation is not included in property settlements”

Superannuation, or retirement savings, is considered an important part of the asset pool and is subject to division in property settlements. It is crucial to seek legal advice to understand how superannuation will be treated in your specific circumstances.

Misconception 4: “I don’t need legal advice for a property settlement”

While it is possible to navigate a property settlement without legal advice, it is highly recommended to seek legal assistance. A family lawyer can provide guidance, ensure your rights are protected, and help negotiate a fair settlement. They can also explain the relevant laws and help you understand your entitlements.

Misconception 5: “Once a property settlement is reached, it cannot be changed”

While property settlements aim to provide finality and closure, there may be circumstances where a settlement can be revisited. Significant changes in circumstances, such as financial hardship or undisclosed assets, can potentially lead to a review of the settlement. It is important to consult with a lawyer if you believe your settlement needs to be reviewed.

By debunking these common misconceptions, divorcing couples can have a clearer understanding of the property settlement process and make informed decisions. Seeking legal advice and relying on accurate information will help ensure a fair and equitable outcome for both parties involved.

Why Choose Mediations Australia to Mediate Your Family Law Property Dispute

When it comes to resolving family law property disputes, choosing a reputable and experienced mediator can make a significant difference in achieving a satisfactory outcome. Mediations Australia offers several advantages in this regard:

Expert mediators: Mediations Australia have highly trained and skilled mediators who specialize in family law property disputes.
Neutral and impartial: Mediations Australia mediators are neutral and impartial, ensuring a fair process for all parties involved.
Cost-effective: Mediation is generally a more cost-effective option compared to court proceedings, making it an attractive choice for many individuals.
Flexible and confidential: Mediations Australia provides flexible mediation sessions, ensuring convenience for all parties. Moreover, all mediation discussions are confidential, providing a safe and secure environment for open dialogue.

By selecting Mediations Australia, individuals can benefit from the expertise and professionalism of their mediators, achieving resolution and closure in their family law property disputes.

When it comes to family law property disputes, the stakes are high. These disputes can involve significant assets, emotional turmoil, and complex legal issues. It is crucial to choose a mediator who understands the intricacies of family law and has the expertise to guide parties towards a fair and mutually agreeable resolution.

At Mediations Australia, our mediators are not just highly trained professionals; they are also experts in family law property disputes. They have an in-depth understanding of the relevant legislation, case law, and legal principles that govern these matters. This knowledge allows them to provide informed guidance and facilitate productive discussions between the parties involved.

Moreover, our mediators are committed to maintaining neutrality and impartiality throughout the mediation process. They create a safe and respectful environment where all parties can express their concerns, interests, and perspectives freely. By ensuring that each party feels heard and understood, our mediators help build trust and foster constructive dialogue, increasing the chances of reaching a mutually beneficial resolution.

One of the significant advantages of choosing Mediations Australia is the cost-effectiveness of our services. Court proceedings can be lengthy and expensive, often resulting in a significant financial burden for the parties involved. In contrast, mediation offers a more affordable alternative. By engaging in mediation, individuals can save on legal fees, court costs, and other expenses associated with litigation.

Furthermore, Mediations Australia understands the importance of convenience for all parties involved. We offer flexible mediation sessions that can be scheduled at a time and location that suits the participants. This flexibility allows individuals to attend mediation without disrupting their work or personal commitments, making the process more accessible and convenient.

Confidentiality is another crucial aspect of our mediation services. All discussions that take place during mediation sessions are strictly confidential. This confidentiality ensures that parties can speak openly and honestly without fear of their statements being used against them in court. It creates a safe and secure environment where individuals can explore potential solutions and negotiate in good faith.

By choosing Mediations Australia, individuals can have peace of mind knowing that their family law property dispute is being handled by professionals who are dedicated to achieving a fair and satisfactory outcome. Our expert mediators, combined with our commitment to neutrality, cost-effectiveness, flexibility, and confidentiality, make us the ideal choice for resolving family law property disputes.

Need Family Law Help?

Our skilled Mediators and Family law team works arduously to make sure you get the best result possible in the event of a divorce or separation when it comes to divorce property settlement case studies in Australia.

We have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne, Sydney, and all other locations in Australia. Get legal advice from us today!

May 23

What are Family Reports in Family Law Matters?

By Mediations Australia Family Law, Child Custody, Family Law Disputes

What is a Family Report?

The court may direct a family consultant to submit a family report on subjects the court deems relevant under Section 62G(2) of the Family Law Act (1975).

But what exactly does this imply?

A Family Report is a document written by a court-appointed psychologist or social worker (typically one of these two professions) for the purpose of advising the court on the best course of action for children involved in a case.

Why should you utilise a Family Report?

Experts are consulted by judges. They rely on forensic scientific evidence, eyewitness reports, and other evidence in criminal cases.

There is frequently no concrete evidence in family matters. School records, psychologist reports, and domestic and family violence orders are examples of supporting documentation, although they are not proof by themselves. But, more often than not, one parent’s account of events is pitted against another’s. A family report is intended to provide an expert opinion on the pertinent facts and data.

What does the family report do?

The following are the requirements of Section 62G(3A), (3B), (4), and (5) of the Family Law Act (1975):

If the child is mature enough to express their opinion and there are no other specific circumstances that prevent them from doing so, they will be considered.
Child protection, well-being, and development;
Any other matter that the court finds relevant to the child’s care, welfare, and development.

Due to the intricacy of these reports, we have explained some of the reports you may encounter and the purpose that each of these reports serves below.

Child Impact Assessment

A Court Child Expert hired by the Court Children’s Service can only create a Child Impact Report, which is a preliminary report.

This report focuses on the child’s or children’s needs, as well as their perspectives and family experiences. The goal of this report is to help the Court determine whether the child faces any risks from spending time or living with the parties, the nature of the child’s relationship with each parent or the parties involved in the dispute (if necessary), and any developmental requirements the child may have.

While the specific method of a Child Impact Report varies based on the needs and circumstances of each child and family, it is commonly done in two stages:

the Court Appointed Child Expert meets with each party (typically both parents);
the Court Appointed Child Expert then meets with the child or children, unless it is ruled that doing so is inappropriate.

This decision is frequently made in situations where the child or children are very young, or if they have a health condition that may limit their capacity to participate in the process.

The Child Court Expert may choose to witness how the child/ren interacts with each of the parties if the meeting takes place in person.

This type of report is only likely to be requested if there are parenting difficulties that need to be resolved before an interim hearing (usually being the intermediate point of a Family Court matter, where orders are made on a temporary basis or until final orders are made by the Court). Otherwise, the Court may require the parties to hire a privately paid organisation to do a Child Impact Assessment (which is conducted in a similar way to the internal Court process outlined above).

Depending on the nature of the parenting dispute and the lingering issues that a Court is required to resolve, four additional reports may be requested if the matter proceeds to a final hearing (meaning the parties are still unable to reach an agreement).

The Executive Summary

A court may order one or more parties to parenting proceedings to attend a family consultant appointment or series of consultations, as well as to arrange for a child to attend such an appointment. Following the appointment, the family consultant will submit a report to the Court, which will be in a condensed form and will usually give the Court an overview of the parties’ difficulties.

These reports (commonly referred to as ‘S11F reports’) are used at interim hearings (as opposed to S 62G reports) and can form the basis of a final resolution of a parenting matter by consent, where the parties agree to the report writer’s recommendation or the Court incorporates it in a Final Order.

The Specific Report

The Court may order a family consultant to provide the Court with a report on any relevant aspects to the proceedings that the Court deems appropriate. The court may postpone the hearing until the report is delivered. The Court may issue orders requiring the parties to attend appointments and arrange for their children to attend such appointments.

Unless it would be inappropriate due to the child’s age, maturity, or some other particular condition, the family consultant must gather the views of the child/ren on the matter and incorporate them in the report. The Family report may include any information about the child’s care, development, and welfare.

Family Report

A Family Report is used to give an objective evaluation of a family law dispute to a court. It provides an objective, expert assessment of the issues surrounding the parental disagreement, assisting the court in reaching a conclusion regarding the child’s best interests in settling the case. We’ll cover everything you need to know about Family Reports right here.

What is the purpose of family reports?

Family Reports are created to help parents agree about what is in their child’s best interests, or to help the Court determine what is in a child’s best interests if the matter is in litigation.

In parenting conflicts, the writer’s responsibility is to provide observations and recommendations for future care and living arrangements that are in the best interests of the children.

The Court can appoint a family report writer or the parties in a parenting dispute can jointly nominate one.

Family reports are frequently created in the hope of assisting parties in reaching a settlement in a family law matter. They can offer opinions and assist judges in making decisions concerning child custody arrangements by providing an objective assessment of the problems in the matter.

Who Writes Family Reports?

A court-appointed Family Consultant is frequently the writer of a Family Report. In cases when there is a parenting dispute, they can also be jointly elected by both parties.

A psychologist or a social worker prepares and writes the Family Report. These individuals have the necessary abilities and experience working with children and families to help children reach the greatest potential outcome. As a result, Family Consultants are considered specialists in the field of children’s issues.

What is the price of a Family Report?

If neither party has the financial means to pay for a Family Report and the Court requires one, the costs are covered by the Court and the parties pay nothing. If the parties have agreed to organise a private family report, you may be requested to pay half of the fees unless the other party is willing to pay the full cost. Privately prepared Family Reports can cost anywhere from $3,000 to $5,000, depending on the report writer.

Interviews with family members and family report questions

After a Family Report has been ordered, the Family Consultant will schedule appointments for the parents, children, and any other key individuals, such as family report interviews.

The times and venue of the interviews will be communicated to you. It is vital that you attend all of the interviews that the report writer has planned. Only under extreme situations can interview appointments be modified. If you do not show up for your appointment, the Family Report may not be completed, or it may cause delays or additional charges, which you may be required to pay. If you fail to show up for planned family report interviews, the family report writers are required to notify the court.

Individual interviews with each of the parents and children, as well as other relevant people in the children’s life such as partners, siblings, or grandparents, will be conducted by the Family Report Writer.

Consider the interviews to be an observation session done by the Family Report Writer. They’ll watch how you connect with the kids and the other party, as well as any other important people being interviewed.

Unless there are specific circumstances that preclude the children from being interviewed alone, which is rare, your children will be interviewed apart from any adults. You may have a joint session with the children in addition to the children having individual visits, so the report writer can see your relationship with the children and their behaviour towards you.

The goal of having individual appointments for your children is to allow them to talk freely and express their wishes without the pressure of either parent being there, though they will not be forced to do so if they do not wish to.

Your children may be monitored by qualified professionals in a secure and neutral area away from any potential adult conflict during interviews, but you should check with the Family Report Writer ahead of time to see what services they can provide. It’s possible that you’ll need to bring someone to look after the kids while you’re being interviewed.

How long does it take to complete a Family Report?

Once a Family Report has been ordered by the Court, scheduling appointments for family report interviews might take up to two months. For Family Reports, where report writers have been hired and are paid privately by the parties, interviews are frequently scheduled much more quickly.

Interviews with family members usually last a full day. If the problem is complicated and the Family Report Writer requires more time for interviews, extra appointments may be planned for another day.

It can take up to six weeks for the report writer to issue the Family Report after all of the interviews have been completed.

Are the Family Report Interviews Confidential?

The interviews for the Family Report are not kept private. If it is relevant, anything you tell the Family Consultant or anything the Family Consultant sees will be reported.

The Family Report is a private document. The Family Report is only visible to the parties and anyone interested in the proceedings (if your case is in court). Without the Court’s authorisation, it is illegal to show the Family Report to anyone else, including any people questioned by the Family Consultant. If the Family Report is acceptable and/or helpful, the Court can make Orders allowing psychologists to view it.

We have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne, Sydney, and all other locations in Australia. WE offer a free, no-obligation consultation with a family lawyer or mediator. Get legal advice from us today!

May 13

The Difference Between a Divorce Lawyer and a Mediator

By Mediations Australia Divorce, Family Law, Mediation

With the heightened emotions (and sometimes anger) that accompany the end of a marriage or de facto partnership, many people believe that hiring a lawyer to put on the proverbial boxing gloves and to fight for them is the only way to go proceed through the maze of family law. Nothing could be further from the truth. The objective of resolving a family law dispute is to get in and out as quickly as you can with an outcome that you can live with.

That said, there are of course circumstances where this isn’t going to happen and you’re in for a long and expensive road ahead.

So, if you’re in the former situation, what’s best a divorce lawyer or mediator?

Mediation or Litigation

It is important to note that having assertive and smart legal representation can aid parties in limiting the points in dispute and empowering clients to feel comfortable settling matters, resulting in a good outcome. It may be the case that all you initially need is some legal advice.

So, what’s the best option for you? We’ll look at the variations in definitions and techniques when deciding between a divorce lawyer and a mediator in this post to help you figure out what’s best for you.

What is the function of a mediator?

A mediator is a professional third person (typically a family law solicitor or barrister) whose role it is to smooth discussions between the parties, encourage conversation, and ensure that they are working towards a mutually acceptable result.

However, mediators do not give legal advice to the parties. People going through a family law dispute can hire a mediator or have lawyers engage a mediator on their behalf. At Mediations Australia, we have both. This is unique because our family lawyers and mediators work together to work out what’s the best option in the circumstances.

In what circumstances would a mediator be the best option?

A mutual agreement on the desired goal is the first requirement for a successful mediation. This is what we mean:

Both parties can have a friendly relationship throughout the process, but they must understand that a negotiated conclusion means forsaking their “best-case scenario” in order to achieve a compromise.
Second, the parties should be able to negotiate amicably. This is a less combative procedure, even if they don’t have to be best friends. As a result, the parties must establish a baseline of commitment to an overall settlement in order to avoid deviating from the main purpose.
Finally, all parties must be happy with the level and quality of the information provided in private mediation. Settlements in family law cases are most common when both parties feel empowered and have a complete understanding of their financial situation.

People frequently participate in mediations when they are unprepared or under-equipped. This can lead to a worse result than if mediation had not taken place at all. When there is an information imbalance (for example, one party controlling finances and not sharing all required information to comprehend financial concerns), the parties are not on a ‘level playing field,’ and the outcome is likely to be unsatisfactory.

What is the difference between a divorce lawyer and a mediator?

Simply described, a divorce lawyer is a person who acts as an advocate for one of the parties. Their task is basically twofold:

They give legal counsel to a party about their rights and the range of legal options available,
as well as preparing and presenting their client’s case in court or mediation, depending on the situation.

In what circumstances might be hiring a divorce lawyer to be the best option?

It’s important to understand that hiring a divorce lawyer does not rule out the prospect of family law mediation. In truth, any expert in family law would evaluate all options for resolving a conflict.

A party in a dispute may not always provide all of the essential financial information. Mediation should be avoided in such situations. A lawyer can help a party get all the required facts so that their client fully comprehends their financial situation.

Similarly, the parties may be at odds, and a lawyer is required to ensure that each party is fully empowered to present their case.

Which is better for you: a divorce lawyer or a divorce mediator?

Finally, both mediators and lawyers have the same goal: to help parties going through a divorce reach a conclusion and move on from what is often a difficult and trying time in their lives.

Their key distinction is in their approaches:

A mediator’s primary purpose is to find common ground and facilitate parties reaching mutually accepted conclusions;
whereas, by presenting their client’s case, a lawyer seeks to empower, advocate, and secure the best possible outcome.

Each has a distinct function to play, utilising both methods and methodologies as required.

Ultimately, we recommend that if you and your former partner are amicable, then each seeking independent legal advice will provide not only a useful framework, but will take care of all the elements regarding disclosure of all financial information. Once this is all in hand, having a family lawyer that is prepared to hand the matter across to a mediator for resolution is the best outcome.

What Should You Do Now?

At Mediations Australia, our family lawyers and mediators work collaboratively in order for you and your former partner achieve the best results in the quickest amount of time and importantly, with the least amount of expense. We have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne, Sydney, and all other locations in Australia. Get legal advice from us today!

May 13

Trial Separation: Everything You Need to Know

By Mediations Australia Mediation, Family Law

Trial Separation

A trial separation offers couples an opportunity to assess their relationship challenges without fully committing to divorce. It provides space for reflection, allowing partners to evaluate their issues, understand the potential financial and emotional impacts of divorce, and possibly reconcile. While it can be stressful, a well planned trial separation can be beneficial, offering time to address problems, gain perspective, and potentially strengthen the relationship. Key considerations include setting clear guidelines, maintaining open communication, addressing logistical matters, and seeking legal and financial advice. Whether the separation leads to reconciliation or divorce, it can provide valuable insights and clarity for both parties involved.

Trial Separation Benefits

Draw Breathe

It goes without saying that there can be significant advantages of a Trial Separation. In particular, it gives the relationship time to breath. A Trial Separation might provide you with the time and space you need to address issues and return to your marriage as your best self.

Allows Big Issues to Become Small

Relationships in full swing have a massive degree of pull and push. At times, the balance can be outweighed and couples can become withdrawn. A Trial Separation gives a couple time to be introspective about what really matters.

It helps to avoid early divorce.
Divorce, like marriage, is not something you want to take lightly. A trial separation might help you take a step back and think things over before making a costly and life-altering choice.

The heart can grow fonder while away

You’ll be able to notice all the things your partner does that make you happy more clearly while you’re apart. Separation can make you appreciate your spouse even more.

It provides you and others with a taste of living on your own.

A trial separation is exactly what it sounds like: a separation practice run. You may determine whether you are codependent and ‘need’ your partner or actually desire them in your life by seeing how well you both perform while living apart.

Trial Separation Checklist

Couples and families are increasingly using trial separations to help them decide whether or not to continue their relationship. While living in the same house, couples can have their own area for a set length of time.

When is it appropriate to try a separation in the same house?

If you’re having issues in your relationship and/or getting your partner to understand how serious you are about the need for a change, a trial separation in the same residence might be a good method to get the other person to comprehend your goals. It should not be used as a tool of manipulation, and it should not be suggested rashly.

It can be a helpful transition for couples with children into any prospective changes in the family dynamic, such as one parent moving out. Parents can keep track of their children’s needs and reactions to the trial separation and gain a better knowledge of how separation might affect them and what each parent should do in the children’s best interests.

It can also be beneficial in times of stress when you are feeling overwhelmed by external causes such as a global epidemic, job security, living costs, and so on. This has been especially true in the last two years, as the global pandemic has taken a psychological, emotional, and physical toll on people. Having your own time may be all you require, or it may provide you with the necessary space to clear your mind and make the decision to go forwards with your life.

Have the logistics of how you think everything will work before proposing a trial separation with your partner in the same residence. Such as:

Where will each of you sleep;
how long will it last;
how will finances be handled during this time;
how will meals and food shopping be handled, and so on.

Get legal and financial advice

Understanding the legal and financial implications of a trial separation will help you avoid emotionally and financially costly mistakes. Consulting with legal and financial professionals can help you establish ground rules, identify legal issues, and avoid costly mistakes. Gaining knowledge will help you approach your divorce with confidence and direction.

Negotiate the mechanics of the separation with your spouse.

A trial separation presents its own set of practical issues and decisions. The more you and your husband can agree on ahead of time, the easier your divorce will be.

Consider the following:

Who is leaving the marital residence?
What will the moving-out spouse take, and how and when will they remove their belongings?
When and how will the departing spouse gain access to the house?
How will the new home be paid for and furnished?

Make a temporary parenting plan and agree to it.

Children frequently struggle to comprehend separation. It will be easier to adjust if you provide a sense of security, safety, and consistency. Consider:

When and where will the kids see their respective parents?
Where is the headquarters?
What happens if a scheduling conflict arises? How will the cost of child care be handled?
You may desire to travel with your children on holidays, vacations, and other events.
What about the pets?

Establish a schedule

When critical decision-making expectations are specified ahead of time, anxiety and frustration might be reduced. When will the move take place, and how long will it take you to evaluate the separation’s productivity, three, six, nine, or twelve months? Setting a time limit gives the non-initiating spouse the assurance that the problem will not drag on indefinitely. Predetermined assessment dates will also aid in the accountability of the initiating spouse.

Maintain constructive communication.

A trial separation will reveal where you and your partner have communication issues. People who are going through a trial separation should try their utmost to keep all communication productive and focused on fixing problems. It’s not easy to keep emotions out of communication, but keeping your side of the street clean pays off in the end.

Trial Separation Rules

If you and your spouse are unable to agree on the parameters of a trial separation in the same house, or if you have tried it and decided to separate, the next step is to get legal counsel from a family lawyer who can discuss your options for separation under one roof or other options.

If you finish your trial separation and determine that you’d rather be apart than together, consider the following:

Choosing to be polite to one another

You may or may not wish to be together in the future, but you must have open lines of communication in order to address issues and make decisions. Maintaining respect goes a long way and will seriously help get through any family law disputes efficiently and effectively. If you’re at this point, it’s likely that you will be able to resolve issues through mediation and not litigation.

Avoid making rash decisions.

Your circumstance isn’t going to alter overnight, so take your time and make informed decisions together.

From the start of the break-up, consult your Separation Checklist for suggestions and considerations of items to gather, accomplish, or act on. It will address topics like as finances, home, paperwork, and who you may need to notify.

Whether you want to engage in a trial separation and work on your relationship or you choose to leave the relationship after the trial separation, make sure it is a decision that you are truly pleased with.

A few last things!

While you don’t need to hire a lawyer to figure out how to live in different places for a while, having one on your side can help keep everything running smoothly. You’ll need to figure out finances, custody difficulties, and even physical possession of some assets, such as who is accountable for payments on your current house or apartment. When and with whom will the youngsters spend the most time? Is it necessary to assess child support? What about the pet in the family? A separation agreement will be required.

Don’t give up just yet if saving your marriage seems impossible. Instead, try out a trial separation. You might learn something in the process if you’re both just relieved to be away from each other.

If, on the other hand, you miss each other more than you expected, the time apart may be just what you need to keep you together for longer. Separations have often astonished partners with how much clarity they bring to a relationship, and you may learn things about yourself that you didn’t know before.

What Should You Do Now?

May 13

How is Mediation Different from Collaborative Law?

Pre-Separation Checklist

By Mediations Australia Family Law, Divorce

Important Things to Consider Before Separation

Separation, in the worst-case scenario, involves a person leaving the marital or de facto home in haste and not returning. Conversely, the best-case scenario is when someone leaves after exploring all the options, both in regard to reconciling the relationship and of course, in the event that it’s unlikely, separating with things in place.

In this article, we identify a number of things that you should be considering prior to separation.

The first stage is to determine whether your relationship has irreversibly broken down or whether the issues may be resolved. Remember that once you’ve started the separation process, there’s often no going back.

If you’re on the fence regarding separation and divorce, we strongly advise you to seek marriage, family, or individual counselling.

A counsellor can assist you in determining whether divorce or separation is the best solution to your problems or whether they can be resolved through counselling. Counselling can assist couples in regaining intimacy, improving communication, resolving trust issues, and implementing conflict-resolution tactics. If counselling fails to resolve the concerns, a therapist can help ensure that the separation is done amicably and compassionately by offering emotional and practical support for the transition into separate lives. Please contact our family law department if you would want a recommendation to a counsellor who is most suited to your individual or family’s requirements.

Once you’ve made the decision to divorce your partner, there are a few things to bear in mind. Beginning to protect yourself and your interests (and the interests of your children) can only help you in the future.

The following points should be kept in mind:

Keep a Diary

Keep a diary as proof of your separation date. This is important for your divorce application;
Ensuring that you do not exceed the time limit for bringing de facto relationship procedures; and
Assists in determining post-separation contributions.

Mailing Address

Set up a private PO Box or contact your local post office to have all of your mail routed to your workplace. You want to make sure that you have control over all crucial mail and that you don’t miss important payments or letters because you didn’t receive it.

The New Location

Consider your living alternatives and whether you intend to stay on in the property (and if you can afford to do so). If there are children involved, you should think about who they will live with, keeping in mind that it is normally in the best interests of the children to keep them in the matrimonial home.

Be Safe

Consider how your ex-partner will respond if you tell them you’re separating from them, and whether domestic violence is a possibility (particularly if there are any children involved).

Your Finances

Start organising your finances. For instance:

Create a separate bank account and re-direct your earnings or government pensions there;
Know about the bills that must be paid on a regular basis.
Check who owns all of the family’s accounts, including internet, home phone, mobile, energy, Netflix, and so on. Change the account holder if necessary to the individual who plans to keep using the account after the separation;
To prevent your previous partner from accessing your phone records, make sure your phone is registered in your name. Phone accounts might be tough to switch over to your sole name without the account holder’s permission, so do it when you’re on good terms.
Gather financial documents such as tax returns, important invoices, trust deeds, Business Activity Statements, and so on (this will establish a history of contributions and other transactions paid on behalf of or by either party);
If you and your former partner share an accountant or financial adviser, inform them of your plans to separate and keep all personal information separate in the future.

Gather Sentimental Things

If you’re leaving the matrimonial home, remember sentimental items. At times, once a person leaves the house it can be difficult to gain entry again to access these items.

Get Legal Advice Early

Getting legal advice early is crucial. It can be the case that during this emotionally difficult time, people make decisions that can compromise their legal position. By speaking to a family lawyer at Mediations Australia, we can advise you of the road ahead and strongly encourage an early resolution of any disputes that may occur with regard to property or parenting matters.

Apr 21

Divorce Property Settlement – Your Best Options in 2022

By Mediations Australia Divorce, consent orders, Family Law, Mediation, Property Settlement

Separation from a relationship can be a traumatic and stressful experience. When a relationship ends, it’s never easy, and it’s common for people to feel adrift and unsure of what to do next. At the forefront of their mind, is often a divorce property settlement. Aside from the emotional toll, there are also financial and legal aspects to consider after separation. This all of course happens when you’re often not in a great emotional space to deal with them effectively. In this article, we give you some clarity on the path and options ahead, as well as debunk a few myths.

Divorce Property Settlement

When considering a divorce property settlement, a key thing to understand is reaching a financial agreement with your former partner, including a property settlement is a vital aspect of this process that can help you both move forward with your life. For example, if you have reached an agreement on parenting and/or property matters, you can get a ‘Consent Order’ from the Family Court of Australia to make that agreement legally binding.

Here, we’ll look at how to get a Consent Order, what to do if you and your partner can’t come to an agreement, and other family law issues to think about the following separation.

What is a Consent Order, and How does it Work?

A Consent Order is a written agreement that the Court has approved. A Consent Order can address both parental and financial arrangements such as property and care for children. In order for a Consent Order to be finalized, the Court must be satisfied that the agreement reached is both just and equitable, as well as in the “best interests” of any children involved in the relationship. Our family lawyers at Mediations Australia can help you in this regard.

What is the procedure for obtaining a Consent Order?

A Consent Order can be obtained directly from the Federal Circuit and Family Court of Australia. You run the danger of the court rejecting your application for consent orders if you don’t get competent legal guidance from an experienced family lawyer, as well as overlooking critical components of the proposed parenting/property arrangements. It’s critical that you take these documents seriously. Think of them as a contract. You wouldn’t dare construct your own contract, so be very careful about considering drafting consent orders. Once consent orders have been endorsed by the Court, it can be very difficult and expensive to have them changed.

We can assist you in preparing the Consent Order and answering any concerns you may have concerning the separation process, including property settlement issues, parenting arrangements, and other family law issues.

It’s also worth noting that initiating an application for a Consent Order for property settlement or parenting/child support issues has a time limit. The application must be submitted within the following timeframes:

For married couples, one year from the date of divorce.
De facto couples have two years from the date of separation.

Here is much more information about consent orders.

What if My Partner and I are unable to agree on matters relating to Property and/or Parenting?

There is assistance available if you and your former spouse are having trouble reaching an agreement on property or family/parenting issues. Importantly, seek the opinion of an expert family lawyer who can offer specialized guidance on how to best settle legal disputes and how to ensure that you reach a fair and equitable arrangement. It is critical to understand your legal rights and duties, as the legal system can be complicated. An initial consultation with a family lawyer will give you clarity and the beauty about Mediations Australia is that if following your free, initial consultation with our family lawyer, if there is potential to resolve the issues promptly, one of our mediators can be brought into the picture seamlessly.

In this context, family law doesn’t need to be a high conflict sport. In other words, it is far better to resolve these matters promptly. The alternative is expensive and will emotionally drain you and all those involved. The courts these days make it very difficult to litigate because they know firsthand that having a judge decide matters for you is by far the best way to get outcomes that you and your former spouse are happy with.

Here are the ways that we can assist you to resolve your matter without Litigation.

Mediation – Mediation is a process in which a mediator, who is a neutral third party, assists people in a dispute in reaching a mutually acceptable agreement with respect to the relevant issues. The outcome of the mediation is in the hands of the participants. In other words, you and your ex-spouse are in control over the outcome, as opposed to a Judge.

To enable the parties to reach their own agreement, a mediator stimulates dialogue, improves understanding, aids the parties in identifying their needs and interests, and applies innovative problem-solving strategies.

No one forces a solution on a party, unlike in court or arbitration. The disagreement will remain unsolved if all of the parties do not agree on the outcome.

If previous conversations have failed, mediation offers an alternate option to litigation. The variety of potential solutions reached during mediation is frequently wider than the remedies available in courts and tribunals, or even in long-term negotiations.

Mediation is significantly cheaper than litigation, with 90% of issues being resolved in one day of mediation.

At Mediations Australia, we can assist you with your mediation questions. Book a free consultation.

Arbitration — This normally entails a third-party (an “Arbitrator”) meeting with you and your former husband or de facto partner (and, in most cases, your legal representation) to discuss the facts and arguments in disagreement. The Arbitrator, who is usually a senior barrister or a former judge, makes a well-informed judgment about how to resolve the disagreement. Arbitration is a process in which disputants present their arguments and evidence to a dispute resolution practitioner (the arbitrator), who then renders a decision. The procedure is private and can be kept anonymous if both parties agree. Arbitration is a flexible and efficient method of settling domestic and international conflicts. The arbitral tribunal’s decision is final and binding.

At Mediations Australia, we can assist you with the arbitration.

Collaborative Law – Collaborative law is a form of alternative conflict resolution that allows both parties and their lawyers to sign a contract (the “Participation Agreement”) to finalize any legal elements of their separation or divorce without having to go to court. The procedure employs an interest-based negotiating paradigm, in which the disputants and their lawyers work together to reach a mutually advantageous conclusion based on their mutual interests. Any desires, ambitions, concerns, or anxieties could be among these interests.

Property Settlement Questions

Is the property pool valued at the time of separation or at the time of settlement or trial?

It’s a frequent fallacy that only assets, liabilities, and superannuation that existed at the time of separation are included in the property pool and that they are valued at that time. This isn’t the case at all. Any property that exists at the time of the agreement or at the time of the trial is included in the matrimonial property pool at its current market value. If you buy a house after you’ve separated, for example, the value of the house can be included in the property pool.

If you want to maintain the matrimonial house as part of the property settlement, keep in mind that in today’s market, the home may appreciate in value faster than other assets in the property pool.

Any inheritances or other windfalls you get after your divorce but before reaching an agreement will be included in the property settlement. Similarly, if your ex accrues debt after the divorce, that debt may be included in the property pool, reducing the total assets available for distribution between you and your ex.

Hence why it is essential to resolve your property settlement as soon as possible following separation.

Do property settlement disputes become more complex over time?

Your property settlement may grow more problematic as time passes following your divorce because of:

Your relationship with your ex is deteriorating. While some spouses retain a friendly connection after their divorce, this could swiftly deteriorate. If you and your ex have a good connection, you should strive to reach an agreement as quickly as feasible. You should obtain legal counsel so that you know what a reasonable offer to make to your ex is, as you don’t want to be in a position where you’re making offers that are significantly less than what you’re entitled to or that could result in an unfair outcome for you.
Expenses incurred after separation. You may want to finalize your property settlement as soon as possible if you know your ex isn’t good with money or has a habit of living over their means. This will save you from having to argue about whether your ex’s spending was acceptable and whether it should be returned to the property pool and treated as property your ex has already received in the property settlement.
Future requirements It’s likely that your or your ex’s circumstances will change after you’ve separated, affecting your property settlement. For example, if your ex is currently employed in a high-paying position but is laid off and unable to find another job, or if your ex has children with a new partner, this would be considered when determining what your and your ex’s future needs are and could affect the amount you receive in the property settlement.

What Should You Do Now?

Family law matters are complex. We recommend legal advice at the outset. At Mediations Australia, we’re early resolution focused. we have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne, Sydney, and all other locations in Australia. Get legal advice from us today!

Apr 10

How to get Divorce Papers Online - Divorce Application

How to Get Divorce Papers. The 2022 Guide

By Mediations Australia Family Law, Divorce

By far, The best way to get divorce papers is to apply for a divorce online. In this 2022 guide, we will let you know the best way to get divorce papers. You can also talk to one of our lawyers at Mediations Australia.

To begin, you must have been legally separated from your spouse for at least 12 months and one day, with no prospect of reconciliation.

If you’ve been married for less than two years, you’ll need to meet certain requirements before filing for divorce.

You have the right to divorce if you and your husband/wife consent to counseling to evaluate the possibility of reconciliation. If your counseling efforts are unsuccessful, you may ask the counselor to sign a statement declaring that he or she has discussed the possibility of reconciliation with you and your ex. If your ex refuses to attend counseling, you can still get divorced if you include an affidavit with your divorce application.

If you want to find out how long it takes to get a divorce, this article is useful.

How to Get Divorce Papers?

You can get divorce papers by applying for a divorce in Australia either online or by completing the necessary paperwork and mailing them to a Family Law Registry.

A lawyer, Justice of the Peace, or authorized witness must sign and swear or affirm the Application for Divorce form. The original document must be presented, as well as two photocopies.

You’ll need a photocopy copy of your marriage certificate. All other documents, such as a proof of citizenship or a photocopy of your visa, do not need to be sworn, affirmed, or certified. In your application, each document should be replicated three times.

Can I Divorce with Consent from My Ex?

You must serve a copy of your divorce application to your former spouse if you are the lone applicant for divorce. As the applicant, you must demonstrate to the court that the application was properly served and received by the other party. This is normally done by filling out an Affidavit of Service and submitting it to the court. At Mediations Australia, we can help you with this.

If the other party objects to the divorce or disagrees with any of the facts stated in the application, they may file a response.

If the other party does not object to the divorce, they are not obligated to attend the hearing. If there are no kids (under 18) and you have filed an Affidavit of Service indicating that the application has been served on the opposing party, you will not be needed to attend the hearing.

Divorce Application Service Issues

You’ll need to ask the court for substituted service or dispensation of service through your divorce lawyer if you don’t know where your ex-spouse is or are having problems serving the divorce application.

You can use substituted service to serve the divorce application on a family member who has contact with your ex-spouse or at their place of employment. A service exemption is granted only in rare situations. It means that the divorce will be granted without the other party being notified of the proceedings.

If you were married outside of Australia and now live here, you can still request a divorce. A copy of the marriage certificate, as well as an English translation, must be provided if applicable. Either you or your ex-spouse must be Australian citizens, or one of you must have spent at least 12 months in Australia with the goal of staying permanently.

When is the divorce going to be Finalized?

One month and one day after the hearing, the divorce is usually granted.

If you want to get married again, you should wait until your divorce is finalized before making any plans. Not all divorces are finalized at the initial hearing. In other words, wait until your divorce has been approved before remarrying.

In some situations, the court will want additional documentation of the separation date or those proper arrangements have been established for any children under the age of 18.

A relevant article here:

How Long Does it Take to Get a Divorce?

What about the Property Settlement?

Property issues and parenting matters are not resolved during a divorce. But talk to us today at Mediations Australia and we can assist you in this regard.

The period shortly the following a separation can be emotionally charged. As soon as the dust settles, we recommend seriously considering how you and your ex-spouse will share your assets.

A property settlement will be simple for some couples. This will be a more difficult process for others, particularly those with convoluted finances involving firms, companies, trusts, or self-managed superannuation funds.

If the parties are able to discuss and agree on the partition of matrimonial property, that is the best-case scenario. The majority of these disputes are settled within three to six months of the start of settlement talks.

If you intend to negotiate a settlement with your ex-spouse on your own, you should first seek legal counsel from a family lawyer to ensure you understand your rights and entitlements.

Once you’ve reached an agreement, have a family lawyer create legally binding conditions of settlement for you, these are called consent orders. It is not enforceable if your agreement is not formalized using one of the two methods specified by the Family Law Act.

The majority of couples complete their property settlement before filing for divorce. The reason for this is simple: people cannot and should not have to wait a year after their divorce to be financially independent.

If a divorce order has not yet been finalized, the parties have 12 months from the date of the order to begin court proceedings about a property settlement. After that 12-month term has passed, a party seeking the court’s help in resolving a property dispute will need special approval. Parties are encouraged to complete their property settlement as soon as possible and to file a court application if the matter is not settled within 12 months of the divorce date.

A relevant article here:

How Property Settlements Work

What are the steps to get divorce papers?

Step 1: Meet the eligibility requirements.

You must meet the following criteria in order to obtain a divorce in Australia:

The marriage must have irreversibly broken down;
the children must have arrangements in place;
the parties must have stopped cohabiting for 12 months;
a person must meet residency and citizenship requirements;
a person must pay the required filing fee;
and parties who have been married for less than two years must attend counseling.

Step 2: Make an application for divorce.

A person can either file for divorce on their own (Sole Application) or with their former spouse (Joint Application).

Step 3: File a divorce application (Sole divorce applicants only)

Then, for a sole divorce application, you must sign and serve the divorce application to your former spouse. Your divorce application imposes a 28-day deadline for your ex-spouse to respond.

Step 4: Submitting an Application

Submit the paper to the Federal Circuit Court after paying the filing fee. If filing for a sole divorce, the parties must produce a copy of their marriage certificate as well as documentation that they served the divorce application on their former spouse.

Step 5: The hearing (for sole applications with children under 18)

If a person files a sole divorce application and the marriage has a child under the age of 18, the person must attend the divorce hearing. If this is not the case, they are not required to attend the hearing.

A relevant article here:

https://mediationsaustralia.com.au/divorce-application/

Marriage Proof

The proof of marriage would be a marriage certificate. Notifying government agencies such as Centrelink or Child Support Services, as well as the paperwork of alerting relatives and friends, and settling money, such as closing joint bank accounts and modifying your will, are all instances of how to offer proof of separation.

You’ll need to prove that you’re living separate lifestyles if you’re separated but still share a home. You may have proof that you no longer share a room or cook meals for each other, as well as proof that you are no longer considered a couple in social situations. In this case, you may need statutory declarations from friends and family who can attest that despite living together you and your former partner have in fact separated.

What is the Cost of Filing for Divorce?

The filing fee for a divorce application at the Federal Circuit Court is currently $910. You may be eligible for a cost reduction if you have a concession card or can’t afford to pay the price without financial hardship. If you ask for a fee reduction, the charge will be lowered to $305. To request a fee reduction for divorce, they will need to fill out either a general or a financial hardship application.

A relevant article here:

The Cost of Divorce in Australia

How we can help.

Often people considering divorce have not attended to the more pressing issues of resolving property and parenting matters. At Mediations Australia, our family lawyers can assist you with your divorce application, as well as resolve any disputes you may have in relation to property or parenting issues. Talk to us today about these things during a free, initial consultation

What Should You Do Now?

At Mediations Australia, we have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne, Sydney, and all other locations in Australia. We also do international family law matters.

Apr 08

Fathers Rights in Family Law. 2022 Update

By Mediations Australia Family Law

When it comes to ‘father’s rights’ in parenting matters, it’s vital to remember that under the Family Law Act 1975, there are no men’s rights vs. women’s rights. In fact, the child’s rights are the only ones that the Court is legally required to consider.

A child has a right to be cared for by both parents, according to the Family Law Act. This means that the Court is more concerned with the child’s need to spend as much time with each parent as is reasonably possible, rather than the parent’s gender.

Given that you’ve arrived at this page, you’ve most likely heard or been told that fathers are only permitted to visit their children every other weekend, or when it comes to parenting matters generally, the courts favor the mother. This was likely the case in the past, but in recent years – and especially with recent Court reforms – it has become usual for the Court to recognize the value of the child or children maintaining a continuous and meaningful relationship with both parents.

So, Does This Mean Fathers Have a Right to Shared Parental Care?

Without taking into account the child’s unique circumstances, there is no definitive answer.

The simple answer is that the law requires the court to assess whether shared care is a reasonable option if there is no risk of harm to the child.

What Does ‘Risk of Harm’ Mean?

Under the Family Law Act, the term “harm” has a broad definition. Physical or sexual harm, drug or alcohol misuse, emotional or psychological harm as a result of exposure to marital violence, abuse, threats, or denigration of a parent or family member are all examples of harm.

The Court must evaluate the suitability of shared care as long as none of these issues exists.

The mother and father are not the only ones who are at risk. When determining whether a child is in danger of harm while in the care of a parent, the gender of the parent is immaterial. If you are concerned about your child’s safety while in the care of the mother, get legal assistance as soon as possible. The longer you leave the child in a situation where they may be at risk of harm.

Before we go any further, it’s crucial to realize that the Court is only required to examine shared care; it’s not required to make an order.

So, why do you require the services of a law firm that specializes in family law for fathers? You don’t, at least not in theory. Engaging a family law practice like Mediations Australia, which has considerable experience representing fathers rights and male clients in family law cases, guarantees that you are represented by lawyers who have the necessary expertise and understanding to best assist you with your family law matter.

The following are some of the most prevalent worries that fathers rights have regarding the family court system.

Is it possible for my ex to prevent my children from spending time with me?

The most difficult element of any breakup is deciding how you and your ex will parent your children.

It will be the best outcome for you and your children if you and your ex-partner can reach an agreement without going to court. A protracted court battle over parental issues can be costly, time-consuming, and emotionally demanding, with no guarantee of a favorable outcome. That’s why at Mediations Australia, We’re early-resolution focused.

We’ll offer you support and advice to help you negotiate with your ex-partner to reach an agreement that benefits everyone, including your children.

If you and your ex-partner can’t come to an agreement, we’ll have to go to court. They’ll have a look at:

Until now, who has been the primary caregiver?
Relationships between your child and you, his or her family, and friends
The relationship between the child and their school, home, and community
Any proof of allegations of domestic violence (against you, your ex, or any new partners who are on the scene).

When determining how much time the child should spend with each parent, the Court will prioritize the child’s best interests. Unless one parent offers a risk of harm to the child, it is usually in the child’s best interest to spend time with both parents.

It will benefit your parenting situation if you avoid conflict with your ex. It is not always simple, however. That’s why we’re here to walk you through it and communicate with your ex-partner on your behalf.

If you are unable to reach an agreement, we will assist you in laying the groundwork necessary to present your best case in court.

What can Parenting Orders be used for?

The quality of your Parenting Orders can make the difference between a happy co-parenting relationship and continuing strife with your ex.

We’ll assist you in reaching an agreement and drafting Parenting Orders that address essential issues such as:

Who will be able to make long-term decisions for the child, such as medical care, relocation, and education?
Where do you take your kids to school (and who pays if it’s a private school)?
How much time should the kids spend with each parent during the school holidays?
When the kids are with your ex, can they call or text you?

What if my ex-partner wants to take the kids and leave?

Relocation occurs when a primary caregiver wants to relocate with their children.

You are not obligated to consent to the change. If you refuse to consent, your ex may seek a court order, but this is a difficult application to make. The court understands the importance of both parents participating actively in their children’s upbringing, therefore they will not simply ‘rubber stamp’ a decision.

They’ll have a look at:

How much time do the children currently spend with each of their parents?
How far your ex wants to relocate;
Your children’s and other family members’ relationships;
Whether the move will provide the children with greater chances and opportunities;

If your ex is considering relocating and you don’t want her to take the children with her, please contact us as soon as possible.

We’ll assist you in effectively responding to any application for relocation.

If there’s a chance your ex will move the kids to another country, you’ll need to act quickly. We can assist you in placing your children on the Airport Watch List and alerting authorities. You may require a recovery order if your children are taken abroad without your permission.

How much will I have to Pay for Child Support?

On an informal basis, you and your ex-partner might agree on a child support sum. If you don’t want your child support to be handled by Child Services Australia, you can enter into your own agreement with your ex.

Child support payments are calculated using a predetermined method that considers your income, the percentage of time spent with each parent, and the number of children you have.

Contact us for information on how much you’re likely to pay and what to do if you can’t afford it. We can assist you in reaching a mutually beneficial agreement.

Support for children and parental arrangements are two separate concerns. The other parent cannot deny access to the children if the parent who pays child support fails to do so.

Because you haven’t been able to see your children, you can’t stop paying child support. If their mother refuses access, continue to pay child support and contact one of our family lawyers at Mediations Australia.

So, What does all of this mean?

It’s important to remember that the Court’s decisions are made with the best interests of the child in mind, ensuring that their physical, psychological, and emotional requirements are satisfied. This will continue to be the case.

It is critical that the child spend as much time with both parents as is reasonable, with the caveat that if shared custody is not possible, the child must spend considerable and substantial time with the other parent.

The Court may decide that the period be increased as the kid grows older, depending on the impact on the child or children. That is, gradually increasing the amount of time the child spends with the other parent until the youngster has an equal care arrangement or close to it. According to social research and expert opinion, children of schooling age are more likely to cope, if not thrive, in an equitable care situation.

Regardless of where you are as a father in the family law journey, we can assist you in a wide range of family law matters. Talk to one of our family lawyers or mediators today who can assist you in Canberra, Perth, Adelaide, Melbourne, Sydney, and all other locations in Australia.

Apr 06

What if My Ex Dies Before Our Property Settlement is Finalised

By Mediations Australia Family Law, Estate Litigation

Apr 06

Grandparents Rights. How To See Your Grandchildren. 2022 Update

By Mediations Australia Grandparents Rights, Family Law

Grandparents’ rights are frequently impacted by relationship failures, and this is sometimes overlooked when discussing divorce and separation. Grandparents play a fundamentally important role in children’s lives and all needs to be done to ensure that the connection between children and their grandparents continues despite the separation of the parents.

But importantly, when considering grandparent’s rights, we need to emphasize that in the context of family law, parents don’t have rights, nor do grandparents have rights. The premise of family law in Australia is that children have rights and courts want to see decisions always made in the best interests of the child.

Separation generally necessitates a major reorganization of the family, with numerous changes for both the parents and the children.

Extended family members such as aunts, uncles, and especially grandparents may be affected by these changes.

When one of their children’s relationships breaks, many grandparents worry that they won’t be able to visit their grandkids.

Hence, grandparents may be denied access to their grandkids depending on the strength of the connection with their own children and sons or daughters-in-law.

When one parent is given sole or primary custody of the children and does not want to keep in contact with the grandparents, this is where grandparents and grandchildren suffer the most.

Grandparents are typically very significant individuals in the lives of children, and it can be sad to lose contact with them due to a separation or divorce.

There are, however, ways for grandparents and grandkids to continue or re-establish contact and connection with their grandchildren. In this article, we’ll discuss the ways you’re able to do this.

Grandparents Rights in Australia

There is nothing in the Family Law Act 1975 that clearly mentions grandparents’ rights to see or care for their grandchildren.

In truth, neither the parents nor their children have automatic parental rights. Parents have obligations towards their children and children have rights. We cannot overemphasize this important point. As a grandparent or parent, you do not have rights, the children have rights.

Grandparents, like extended family members and other important persons in a child’s life, have the right to see and spend time with them.

The relevant legislation says, children have a right to spend time with, and speak with, both their parents and other individuals who are important to their care, welfare, and development on a regular basis.

Grandparents are particularly cited as examples of those concerned for the care, welfare, and development of children elsewhere in the legislation.

The legal definition of a grandparent is the parent of the child’s mother or father.

A child typically has four biological grandparents, both living and deceased, as well as non-biological grandparents.

The fact that grandparents do not have an automatic right to see their grandchildren does not mean they are powerless.

Grandparents have the legal right to seek a court order allowing them to speak with and spend time with their grandchildren.

Grandparents Rights if they are in the Child’s Best Interests

The best interests of the child are at the heart and soul of family law.

This means that a child has the right to benefit from a relationship with their grandparents if it is in the best interests of the child.

When a grandmother seeks a court order granting them access to their grandchildren, the court will consider a number of considerations in deciding whether the order should be granted.

These elements include:

The need to protect the child from suffering from or being exposed to abuse, neglect, or familial violence, or the chance of these things happening to them.
The advantages of having a close relationship with their parents and grandparents
The type of relationship the youngster has with his or her parents and grandparents.
The impact of any modifications to the current arrangements on the child
The ability of the parents and grandparents to meet the emotional and intellectual requirements of the child
The parents’ and grandparents’ attitudes towards the child
The viewpoints of the child, taking into account their age, maturity, and comprehension of the issue
Contact and communication concerns that are practical

You’ll need to show the court that what you’re asking for in your application is in the child’s best interests. At Mediations Australia, talk to our family lawyers who can assist you in this regard.

What You Need to Know About Parenting Coordination. 2022 Update

Parenting Plans

Grandparents are particularly listed among the people who can apply for a parenting order with respect to a child in section 65C of the Family Law Act 1975. The relevance of grandparents’ rights in Australian law is reaffirmed by this.

A parenting order is a court order that addresses a specific issue, such as:

Who the child spends time with, where the youngster lives, and how parental duty is divided
How will the youngster communicate with other important persons in his or her life?
Any other area of the child’s care, growth, or welfare

Depending on the situation and specifics of each parental order application, several communication strategies will be used. For example, Skype, phone conversations, emails, letters, and the mailing of presents are all examples of communication.

According to the specific situation, parenting orders in favor of the grandparent spending time with their grandchild may include numerous distinct arrangements of spending time.

Grandparents’ rights, for example, may allow them to spend time with their grandchildren during overnight visits, day visits, weekend stays, or permitted time during school holidays.

This is the most effective way to enshrine a grandparent’s right to see his or her grandchildren in law.

The order must be in the best interests of the child for a parenting order to be granted in favor of the applicant, in this example, the grandmother.

A parenting order can also be used to give the grandparent custody of the child.

A grandparent can have sole custody of their grandchild or share custody.

Custody orders may be necessary when one of the child’s parents is unable, unwilling, or incapable of caring for them.

The court must be satisfied that the child’s parent falls into one of these categories and is unable to meet the child’s emotional, intellectual, developmental, or financial needs in order to grant such an order.

Wherever possible, the court prefers to allow the child to benefit from a meaningful relationship with their parents.

As a result, in cases involving abuse, neglect, familial violence, or substance misuse, the court is more likely to give a parenting order for custody in favor of the grandparents.

When grandparents legally become a child’s primary caretaker as a result of a parenting order, the court may also assign the grandparent parental responsibility.

Custody and Parental Duty are not Synonymous.

Parental responsibility refers to a parent’s legal authority, duty, and responsibility with respect to their child.

It entails the ability to make key decisions about the child’s life, including where they attend school, their religious and cultural upbringing, and any medical treatment they may receive.

If a grandparent has parental responsibility for their grandchild, they are not required to consult the child’s parents before making decisions for the child.

Parents and grandparents of a child can apply to the court for a parenting order by consent if they agree on arrangements, contact, custody, and communication.

The agreement reached between the parents and grandparents is formalized through a parenting order by consent, or what is commonly called a Consent Order.

Talk to us at Mediations Australia about how we can help you today.

Parenting orders, whether made by a judge or by consent, are legally enforceable.

Another sort of arrangement is known as a parenting plan.

Although family law recognizes parenting arrangements, they are not legally enforceable.

A parenting plan is a written document that outlines the arrangements for a kid that have been agreed upon by the parents and grandparents.

Grandparents’ rights can be protected through a parenting plan. But you must remember it is not legally binding. The only way to make it legally binding is to have the parenting plan converted into consent orders.

The attraction of a parenting plan is you do not have to consult with a family lawyer and apply to the court to have them made into Consent Orders. But there are inherent risks given that the parenting plan will not bind all the relevant parties legally.

Consent Orders and Grandparents

While it is apparent that grandparents’ rights to see their grandchildren in Australia can be obtained through the courts, there may be times when a grandparent has to go to the next step and seek parenting orders.

A parenting order is a series of court orders that govern some aspects of a child’s upbringing. This order can be put in place if both parents and grandparents agree to it (consent orders). It might also happen if the parents restrict the grandparents and grandchild from developing a relationship. The following are some of the issues that are addressed in a parenting order:

Where does the child reside?
What percentage of the child’s time is spent with his or her parents and grandparents;
a division of parental responsibilities;
Any other part of the child’s care, welfare, or development; and how the child communicates with other significant persons who do not live with them.

Mediation Prior to Filing an Application with the Court

Although the Family Law Act establishes grandparents’ rights to see their grandchildren in Australia through court orders, at Mediations Australia, we recommend that you and the parents try to come to an agreement through mediation. Why? Because mediation is a significantly more effective and significantly cheaper way of getting people to come to an agreement. If alternative measures such as mediation or family dispute resolution have failed, court applications should be used as a last resort. Before any applications to the Court can be made, there must be proof that all parties have tried to resolve the issue through mediation or family conflict resolution. The only exception is if the situation is urgent or there is a risk of harm to the children.

What is the best way to see a grandchild?

Throughout Australia, grandparents have the right to see their grandchildren. However, if you are having trouble with their parents, you can see your child by following the steps below.

Obtain legal advice from an early resolution focused law firm. You do not want to consult with a law firm that is preoccupied with litigation. It will prove lengthy and costly.
To save time and money, try to reach an arrangement with the parents before coming going to court. Mediation is the best way forward.
Going to Court: If mediation fails, you can go to court to seek an order allowing you to spend time with your grandchild.

How We Can Help

The value of children having a relationship with their grandparents is recognized by the law. At Mediations Australia, we provide holistic legal services from mediation through to drafting parenting plans and consent orders to litigation if necessary. Talk to one of our family lawyers or mediators today. Who can assist you in Canberra, Perth, Adelaide, Melbourne, Sydney, and all other locations in Australia.

Apr 05

What are the Mother’s Rights in Family Law

By Mediations Australia Family Law, Child Custody

Historically, when considering a mother’s or father’s rights when it comes to custody of the children, mothers were granted custody in the far majority of cases.

Legislation enacted in 2006 was the foundation for this weighted decision-making by family courts.

However, now, mothers’ rights are not recognised by Australian family law. Fathers’ rights are also non-existent.

This is because, rather than prioritising the rights of parents, the family court prioritises the rights of children in parenting issues.

In other words, neither parent receives preferential treatment, and the court’s decision is based on the child’s best interests.

The child’s best interests will be discussed in greater depth further down.

The presumption of shared parental responsibility is the basic premise behind the Family Law Amendment (Shared Parental Responsibility) Act 2006.

This promotes shared custody rights and is based on the premise that children ought to have meaningful relationships with both of their parents, and that a parent’s responsibility and duty of care for their kid remains unchanged regardless of their marital status.

When court proceedings for parenting orders commence, the court assumes that the child’s best interests are served by maintaining contact with both parents.

It makes no difference whether you are a mother or a father.

Parents must demonstrate their willingness to collaborate respectfully in order to obtain a solution that reflects their child’s best interests.

A relevant article here to understand the father’s rights in family law:

Fathers Rights in Family Law. 2022 Update

After separation or divorce, what happens to the child or children?

It’s crucial to keep in mind that parental responsibility isn’t the same thing as child custody.

The parent with whom the child lives is not always the parent who is capable of making all key long-term decisions for them.

Parental responsibility includes decisions such as where the child attends school, medical treatment, and cultural upbringing.

Mothers and fathers must make these decisions together if equal shared parenting responsibility is preserved.

Mothers’ rights include major decision-making authority over their children’s upbringing and lives.

Because they both have shared custody rights, if the child’s father wishes to make a crucial parenting decision with which the mother disagrees, she can stop it from happening.

Mothers’ child custody rights

In Australian family law, there are two fundamental tenets of the best interests of the child:

A child has the right to have a positive relationship with both of his or her parents.
A child’s right to be safe from physical, psychological, emotional, and sexual damage is unalienable.

The second and more essential point is that if a child’s relationship with one of their parents results in abuse – including exposure to, risk, or threat of abuse – the child’s contact with that parent will be limited.

Because children have a right to know and be cared for by both parents, the presumption of equal shared parental responsibility was established.

Mothers’ rights to care for their children are so predicated on the best interests of the children.

During family law proceedings, it is critical for Mothers to demonstrate that they understand their children’s best interests and are prepared to act in their best interests and care for their welfare.

As the child’s most fundamental right is to be safeguarded from harm, a parent who exposes their child to abuse has no right to a relationship with that child.

The emphasis on the child’s best interests mirrors the UN Convention on the Rights of the Child, particularly articles 3, 9 and 18:

All organisations that work with children should strive to achieve the best possible outcomes for each child.
Unless it is for their own good, children should not be separated from their parents. Children with separated parents have the right to maintain communication with both parents unless doing so would endanger the child.

Both parents are responsible for their children’s upbringing and should always consider what is best for each child.

Focusing on the best interests of the children demonstrates that children’s rights are more important than father’ rights or mother’s child custody rights.

What You Need to Know About Parenting Plans

What Other Factors Affect Mothers’ Rights When It Comes To Parenting Orders?

The best interests of the child are important, but they are not the only factor in determining the outcome of parental orders.

The court considers a variety of other considerations, including the opinions of the parents and children.

These elements include:

How the youngster thinks about the custody arrangements that have been proposed
How eager are both parents to promote the child’s relationship with the other parent to continue?
The existing way of life of the parents and the child
How successfully the parents can meet the requirements of their children
Both parents’ perspectives on parental duties
Orders for domestic violence or evidence of domestic violence

Each case is assessed on its own merits, taking into account the circumstances of the couple in question.

When choosing how much weight to give each aspect, the court can use its discretion.

What are my rights as a mother in Australia following my divorce?

After a divorce, a mother’s rights include the ability to file a claim for child support, spousal maintenance, and property settlement.

Support for Children

Many women are granted primary or complete custody of their children.

Because both parents are responsible for their child’s financial support, regardless of marital status, a mother has the right to demand payments from her former spouse for the child’s benefit.

When parents divorce, the child has a right to be cared for by both parents, including financial assistance, and both parents retain this duty.

Child support is handled by the Department of Human Services.

The amount of child support a mother is entitled to is determined by the mother’s and father’s contributions, as well as their current salaries and the amount of time they spend with the child.

Spousal Maintenance

After a divorce, mothers are entitled to spousal maintenance.

Child support is money that is paid for the child’s benefit.

Spousal maintenance refers to payments provided to a former spouse.

After separation or divorce, not everyone receives spousal maintenance. It is contingent on one party’s reasonable needs and the other’s financial capability.

The court will consider the following factors for both spouses:

Age and well-being
Financial resources and income
Ability to work What is a reasonable living standard?
Whether or not the marriage has had an impact on one’s ability to earn a living
With whom do any children reside?

When a person receiving spousal maintenance payments enters into a new relationship, the court will evaluate the spousal maintenance orders to see if the person can support themselves appropriately.

Is it possible to backdate spousal maintenance?

The application for spousal maintenance cannot be backdated because it is for that person’s future needs. A court will not retroactively award spousal support, so it is up to the applicant to file their spousal maintenance claim as soon as feasible.

Orders for Relocation

Following a divorce, it is not uncommon for parents to seek to relocate with their children.

For example, a mother may be granted primary custody of her child and wish to relocate, possibly even internationally.

However, the child’s primary caregiver may not be the only parent with parental responsibilities.

The family law system encourages parents to come to an agreement together in the interests of parental cooperation and prioritising the child’s right to know and be cared for by both parents.

If the child’s father retains parental responsibility – which means he must be engaged in key long-term decisions about the child – and refuses to agree that the mother and child should relocate, the mother will need to file a relocation order with the family court.

The court will prioritise the child’s best interests and welfare, as it does with other parenting concerns. They’ll strike a balance between her rights and the best interests of the child.

This includes things like the short- and long-term repercussions of relocation on the child, as well as the impact of relocation on the child’s parent-child interactions.

What to do next

If you need advice with respect to your family law situation, At Mediations Australia, we have a team of family lawyers and mediators who can assist you in Canberra, Sydney, Melbourne….and all other locations in Australia. We also do international family law matters.

Apr 05

What You Need to Know About Parenting Coordination. 2022 Update

By Mediations Australia Parenting Coordination, Family Law

Parenting Coordination is not a new thing, there has been a shift toward parents hiring a Parenting Coordinator to help them navigate and, hopefully, resolve issues that may emerge in regard to parenting plans. The use of a Parenting Coordinator has been increasingly popular in recent years, with the purpose of reducing friction between parents and aiding them in handling their co-parenting responsibilities even after the case has gone to court.

Why it’s a good thing is because following separation, in the context of family law, there are lots of moving parts and getting clarity and help with the most important thing, “parenting,” and how it’s going to roll post your separation makes very good sense.

It goes without saying that divorce or separation is stressful and painful for everyone involved, but it is especially challenging for families with small children.

The fundamental worry of many parents is that their children have the opportunity to spend meaningful time with both parents. If no agreement can be reached, a judge will make decisions about how much time the children should spend with each of their parents. If no agreement can be reached, a judge will make decisions about how much time the kids should spend with each of their parents. This decision may be one that neither of you is happy about. At Mediations Australia, we’re early resolution focused and our primary objective is to empower you and your former partner to make decisions yourselves without having to outsource that decision making to the court.

How does Parenting Coordination (PC) operate and what does it entail?

Parenting Coordination is a child-centered strategy for divorcing or separated parents who are having disagreements about what’s right for their children. It’s a type of alternative dispute resolution for parents that can help them plan their ongoing parenting arrangements before, during, and after orders are made in relation to parenting.

What does a Parenting Coordinator actually do?

A Parenting Coordinator (PC) works closely with both parents to help them in implementing court orders and parenting agreements. They also help parents build effective and long-lasting conflict resolution skills and co-parenting decisions so that their children are not exposed to these problems. Parenting Coordinators also help children keep a sense of security and trust with their parents by lowering stress during home transitions, providing a more calm home atmosphere, and aiding children in maintaining a sense of security and trust with their parents.

The following benefits of Parenting Coordination have been reported multiple times:

A priority is to boost the child’s self-confidence and self-esteem.
Increasing the chances of both parents remaining active in their children’s lives.
The child’s stress symptoms lessen as the level of parental disagreement reduces.
Creating a firm set of ground rules in the areas of communication and engagement that their parents follow.

Parents who continue to educate their children will also reap long-term rewards, which include the following:

A priority is to educate parents about the detrimental impacts of parental conflict on their children’s development.
Involvement of parents in the creation of a detailed parenting strategy.
During separation and divorce, teach parents how to regulate their anger, communicate effectively, and resolve problems with their children.

Parenting coordination, unlike parenting planning, is not a step in the process of creating a parenting plan. In order to function efficiently, a Parenting Coordinator must work within the limits of current agreements and/or court orders. Any current agreements and/or court orders will not be able to be changed by the Parenting Coordinator. In contrast to mediation, which is a confidential process, parents are held accountable for their conduct in Parenting Coordination. To ensure that improvement is accomplished, both parents are held accountable for their activities.

The Most Effective Way to Reach a Parenting Coordinator

Parents can seek help from a trained Parenting Coordinator on their own, or they can be referred by their lawyer or the court system. Parenting Coordinators will sign a contract outlining the conditions of the engagement, the procedure, and both parents’ and the Parenting Coordinator’s expectations. The cost of the Parenting Coordinator is divided evenly among the parents and is discussed directly between them.

At Mediations Australia, we have Parenting Coordinators who are a part of our team. We have a team of family lawyers and mediators who can assist you in Canberra, Sydney, Melbourne….and all other locations in Australia.

Apr 04

Why You Have to Update Your Will After Separation

By Mediations Australia Estate Planning, Family Law

Separation from a partner or spouse can be a very stressful time for everyone involved. A plethora of issues must be considered, ranging from property settlement to child support and all in between. One aspect of this process that should never be overlooked is the evaluation and update of your estate plan. It is possible that your former partner or spouse will inherit your estate and assets if you haven’t amended your will after a divorce or legal separation.

If you have a Will, it is important to review it.

The practice of spouses making Wills that state that everything they own passes to the other in the case of their death is fairly popular in Australia. When people are in a relationship or married, it is common for them to have this goal in mind. Even if you divorce or separate from your married spouse, it is important to remember that your Will, as it pertains to your spouse or partner, will continue to be in effect until such time as you are divorced and the Court issues a Divorce Order or until such time as you change or revoke your Will, whichever comes first. After a divorce, many people continue to be legally married for a period of time, often years. If your Will is not modified before you die, your estate may not be distributed to the people you intended.

If, on the other hand, you are in a de facto relationship, any provision made in your Will for your de facto spouse will be null and void as soon as the relationship comes to an end. In a similar vein, if your ex has been named as the executor of your Will, this appointment will be terminated as soon as the relationship ends. The evidence available to prove whether or not the connection has ended and the proof indicating the relationship has ended may, however, differ from one another in this respect, and there may be some ambiguity in this regard.

If you do not make a Will and you are still married or in a de facto relationship, your husband or partner will still be entitled to a portion of your inheritance under the intestacy provisions of the Succession Act 1981, even if you do not have children. If you have children, the part of your inheritance that they receive will be proportional to the amount of your estate that they receive. Again, if you are married, this entitlement will continue until such time as you have secured a Divorce Order or have executed a new Will that specifically excludes your spouse from inheriting from your Estate (whichever comes first).

What happens if I am separated from my spouse but not yet legally divorced?

Separation alone will not invalidate a will in the case of married couples. Australian law requires that married couples have been separated for a minimum of twelve (12) months before submitting an application for a divorce. If you have an old, out-of-date will in place that bequeaths everything to your former spouse during the period of separation (which can be many years), he or she will receive exactly what you have bequeathed to them.

For example, if we slightly alter the circumstances so that Jill unexpectedly passed away in December 2012 (while she was separated from Jack but not yet divorced), her existing 2000 will (in its entirety) will remain valid, and Jack will be the sole executor and beneficiary of her estate, as in the previous example.

Joint Tenancy and Ownership of Real Estate

Parties should examine whether it is in their best interests to sever any joint tenancies they may have in real estate with their estranged spouse while the property settlement is being finalised before proceeding. A severance can be completed without the approval of the other party and will result in a change in the manner the property is held by tenants in common. An estate that is held in joint tenancy automatically goes to the surviving owner, while an estate that is held in tenacy in common allows each individual owner to leave their portion of the estate to whoever they wish under their Will. This protects a party who may pass away before a property settlement is completed from having the entirety of their rights in the property automatically transferred to the surviving joint tenant spouse upon their death.

The fact that one spouse believes their spouse is more likely to die before the property settlement is finalised may lead them to believe it is in their best interests to leave the property as joint tenants, which would give them the opportunity to receive the entire property upon the death of their estranged spouse, regardless of what is written in the estranged spouse’s Will.

Various State Legislation Distinctions

In several Australian jurisdictions, in the event of a divorce, the Wills of both couples are declared invalid by the court. However, in some cases, a divorce results in the ex-spouse being removed from the position of executor of the will, and any gift or portion of the estate to which they were originally entitled is disregarded as well.

It is necessary for you to take the proper activities based on which state’s legislation is applicable in your situation. Also, for more legal help you can contact the will dispute lawyers Gold Cost.

Nominations for Death Benefits in Superannuation are legally binding.

In relation to your superannuation, it is crucial to be aware that Death Benefits from superannuation funds do not, under Australian law, become part of your estate and are instead dispersed in accordance with your Will.

It is instead up to the discretion of the Trustee of your superannuation fund to select who should receive the benefit from among a class of prospective financial dependants of the deceased member to determine who should receive a benefit from the fund.

Any designation of preferred beneficiaries will not be binding on the Trustee unless the Fund authorises the making of a Binding Death Benefit Nomination and you have completed such a document in line with applicable legal requirements, in which case it will be binding.

When you separate from your spouse, it is critical that you revoke any binding death benefit nominations made in his or her name and replace them with a new document that names your intended beneficiary or beneficiaries.

If you have not yet completed a Binding Death Benefit Nomination with your superannuation fund, you should consider doing so because, in most cases, death benefits will be paid from a superannuation fund in the way set by the Fund Trustee. Because otherwise, the Trustee will most likely distribute your Death Benefit to your spouse, child or children, and/or your estate in the proportions determined by the Trustee, this is a requirement if the Fund offers binding nominations, but it is also a requirement for non-binding nominations, as described above.

What Should You Do Now?

At Mediations Australia, we have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne and all other locations in Australia. We also do international family law matters. Call us today.

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