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Family Court

Are You Representing Yourself in the Family Court or Federal Circuit Court?

With the current strain on the economy, the high cost of legal representation coupled with the lengthy delays in the Family Court and Federal Circuit Court, more and more people are representing themselves in court to resolve their property settlement and parenting arrangement.

To assist unrepresented parties or self-represented litigants in the Family Court and Federal Circuit Court, there are a range of volunteer, government and community based organisations that can assist parties with the legal process and provide legal advice.  Unfortunately, these organisations don’t have the resources to draft legal documents.

Correctly drafted legal documents, such as the orders you are seeking from the Court or Affidavit can be instrumental to the quick and desirable resolution of your matter. Too often, people without experience in legal drafting will include unnecessary or inappropriate information in their legal documents, instead of focusing on facts relevant to their matter.  Well written and accurate documents supporting your matter will give the Court the best possible view of your position.  Incorrectly drafted legal documents may place the parties at risk of a miscarriage of justice and effect the Judge’s ability to make a decision that provides a ‘just and equitable‘ property settlement and parenting orders that are in the ‘best interests‘ of the child.

Our Legal Drafter can assist you with the drafting of your legal documents.  Please contact us for a Fixed Fee.

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Family Court Property Settlement

Family law property settlement issues in dispute?

 

*Here is how to identify and narrow issues in dispute…
  1. All parties are required to make frank disclosure to assist the Court in the determination of the dispute or the parties in the resolution of the dispute.
  2. Applications should only be brought before the Court if they are reasonably justified on the material available.
  3. It is expected that parties will negotiate both prior to, and at court, in order to narrow the issues in dispute before having the matter heard.
  4. When appropriate, a single expert or an assessor should be engaged to assist the parties and the Court to resolve disputes.
  5. Costs consequences may flow if parties seek to reopen issues already resolved or unreasonably agitate issues.
*The importance of Family Law Alternate Dispute Resolution…

The Courts encourage the use of appropriate dispute resolution procedures. Before commencing an action, parties are expected to make a genuine attempt to resolve their dispute, complying with the requirements and obligations of section 60I of the Family Law Act (Cth), the pre-action procedures in Schedule 1 to the Family Law Rules 2004 and rule 1.03 of the Federal Circuit Court Rules 2001 as applicable. Subject to an exception applying, the Court must not hear an application for parenting orders unless a section 60I certificate has been filed. After commencing an action, parties are expected to:

    1. be proactive in identifying the appropriate time, and the appropriate way, in which they can participate in Alternate Dispute Resolution (ADR), either by agreement or by court order; and
    2. Be prepared to consider reasonable offers of settlement at any stage of the proceedings. Failure to do so may have cost consequences.

*THE HONOURABLE JUSTICE WILLIAM ALSTERGREN CHIEF JUSTICE FAMILY COURT OF AUSTRALIA & CHIEF JUDGE FEDERAL CIRCUIT COURT OF AUSTRALIA

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Family Court

Consent Orders Rejected by the Family Court?

Did you receive a requisition letter from the Family Court saying that your proposed Consent Orders “are unenforceable in that the Orders are not drafted in a manner capable of being made as orders of the Family Court”?

If you answered Yes, let us help you re-draft your proposed Consent Orders so they will be accepted by the Family Court.

Correctly drafted Consent Orders can be instrumental to the quick and desirable resolution of your matter. Too often, people without experience in legal drafting will include unnecessary or inappropriate information in their legal documents or omit vital information.  Well written and accurate documents supporting your matter will give the court the information required to approve your proposed Consent Orders for property settlements and parenting arrangements.

Our process is easy and straightforward!

 

Consent Orders

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Parenting Arrangements

Parenting Orders – what you need to know | Family Law

  1. Proposed consent parenting orders must be drafted as precise orders that are capable of being made as orders of the Family Court.  It is all too common for parties to attempt to draft their proposed parenting orders as a statement of agreements reached between themselves.
  2. The Family Court Registry will return your proposed consent parenting orders where you have a statement of agreements.
  3. Everyone’s parenting arrangements are different, therefore your plan or orders must be tailored specifically to what is in the ‘best interests’ of your children.
  4. Your parenting orders need to be flexible enough that they consider the changing needs of your children as they develop through their younger years to their teenage years.  Orders that are suitable for today, may not be suitable in 5 or 10 years time.
  5. Be careful of DIY Kits!  They seem cheap, but remember they are computer generated and not tailored specifically to the needs of your children.
  6. The Legal Drafter specialises in drafting parenting orders.  We can assist you to draft orders specifically to your family’s situation so that it complies with the Family Law Act 1975 (Cth).

 

 

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legally binding consent orders

Are Consent Orders Legally Binding?

Yes, Consent Orders are legally binding when they have been approved by the Family Court of Australia/Family Court of Western Australia.  Consent Orders have the same legal effect as an order made after a court hearing.

When you reach an agreement about property and financial matters, including superannuation and/or parenting arrangements, and you want to formalise that agreement to make it binding, you can apply to the Family Court for Consent Orders.  Once the Consent Orders are approved by the Family Court, the orders are binding and legally enforceable on both you and your former spouse.

Consent Orders can include orders about:

  • property and finances
  • superannuation
  • spousal maintenance
  • parenting

Consent Orders can’t include orders about child support or wills and estates.

There are time restrictions as to when you can file your Consent Orders.  An Application (Consent Orders) for a property and financial settlement must be filed within 12 months from the date of a divorce order taking effect.  For a de facto relationship, an Application must be filed within 2 years from the date of separation.

If you are out of time, you can still seek leave from the Family Court by including an order that you consent to making the orders out of time.

You are not required to attend Court as the Application is reviewed administratively by a Registrar of the Family Court.  You are not required to seek independent legal advice – this is optional.

At The Legal Drafter we make your Application for Consent Orders an easy and straightforward process.  Our fixed fee service of $897 provides you with the price in advance so you can decide for yourself if you can afford the cost before you make the decision to use our services.

Unfortunately, law firms are unable to provide fixed fees because they rely on billable hours.  This means you won’t know how much your Application for Consent Orders will cost you, and this could range between $5,000 and $15,000.

If you require further information about Consent Orders please visit our website here, or alternatively the Family Court of Australia or Family Court of Western Australia.

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DIY Kits for Consent Orders – Will they be approved by the Family Court?

It is unlikely they will be approved by the Family Court where you have completed an online DIY kit.  DIY kits do not provide 100s of different templates that will fit perfectly to the needs of your property settlement or parenting arrangements. Each property settlement and parenting arrangement is different and must be drafted specifically to your situation in accordance with the Family Law Act 1975.

Correctly drafted court documents can be instrumental to the quick and desirable resolution of your matter.  Too often, people without experience in legal drafting will include unnecessary or inappropriate information in their court documents instead of focusing on facts relevant to their matter.

Well written and accurate documents supporting your matter will give the court the best possible view of your position.  It will prevent your Consent Orders being returned to you because they are incorrectly drafted.

We are experienced at drafting Consent Orders – it is what we do every day!

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consent orders

Consent Orders – Do I Really Need Them?

YES

1. The agreement is approved by the Family Court;

2. It has the same effect as a court order made by a judicial officer;

3. The terms must be followed as stated in the document;

4. It finalises the financial matters between you and your former spouse;

5. There are stamp duty exemptions (in some cases) for a transfer of property from one spouse to another; and

6. If you are splitting your superannuation, you must have an order of the court (consent orders).

NO

1. If you have already divided your finances and transferred or sold your property; and

2. There are no assets, liabilities or superannuation to divide.

(This list is not exhaustive and is not intended as legal advice.)

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Secretly Recording Your Spouse’s Conversations

recording spouse's conversation cartoon

Secretly recording your spouse’s conversation where there is family violence is an issue that has been discussed widely.  When family violence, child abuse and neglect takes place behind closed doors without any witnesses being present, it is very difficult to provide evidence to the family courts when it is illegal to secretly record conversations in some instances.  However, with increasing public awareness and media attention, the difficulties of obtaining evidence behind closed doors is now being recognised by the family courts.

In the New South Wales case of Janssen & Janssen the court noted on the facts before them that, “it is notoriously difficult to obtain evidence of family violence which takes place behind closed doors”.  The court stated that the decision to admit the secret recordings in this case were based on the particular facts of the case and that the father had maintained a charming public face but had engaged in conduct that alleged to have constituted family violence under the Family Law Act 1975 (Cth).

The Independent Children’s Lawyer (ICL) in this case submitted that in secretly recording your spouse’s conversations would also assist in determining the parenting abilities of the primary carer which may have been compromised as a result of the content and tone of the communication of the father.  It is not only what was said in the recordings, but also how it was said.

The Family Court said that evidence from secretly recording your spouse’s conversation in relation to family violence matters will have to be:

  1. established clearly;
  2. matters of opinion put in appropriate context and given appropriate weight;
  3. dependant upon who was expressing the opinion and on what basis; and
  4. the establishment of the necessary background facts.

Please note that the law in Queensland in relation to privacy and the recording of conversations is different from the law in New South Wales and other states:

  • it is illegal to record a telephone call with a device physically attached to the telephone;
  • it is illegal for a person who is not a party to the conversation to record a conversation, whether by telephone or face to face.
  • it is legal for a telephone call to be secretly recorded by an external device by a person who is a party to the conversation; and
  • it is legal for a person who is not a party to the conversation to record a conversation, whether by telephone or face to face.
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family violence

Family Advocacy and Support Services

Family Advocacy and Support Services (FASS) – Legal Aid Qld

A free service for parents affected by family violence is now available in the Federal Circuit Court and Family Court of Australia. The service includes social support and duty lawyer services.

Duty Lawyers and family violence workers will be available at Court on days when there is a Duty List. Services provided will include legal advice, court support, safety planning, legal information and referrals. The Duty Lawyer may also appear in court on behalf of an unrepresented client or assist with negotiations with the other party.

The type of assistance will be determined on a case by case basis depending on the circumstances of the client, Legal Aid guidelines and availability of resources.

This is provided by the Family Advocacy and Support Services (FASS) – Legal Aid Qld.

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What does the Family Court look at when assessing your matter?

The Hon. D Bryant, Chief Justice, Family Court of Australia said it doesn’t matter who their parents are as long as the children are in a stable, loving and caring relationship in which they are brought up.
http://www.theaustralian.com.au/news/nation/ssm-family-court-chief-justice-diana-bryants-plea-for-kids/news-story/b76fff682d5f998ddb958ce928c8f97d

Family Court judge enters same-sex debate

Family Court Chief Justice Diana Bryant in Melbourne yesterday. Picture: Aaron Francis
Family Court Chief Justice Diana Bryant in Melbourne yesterday. Picture: Aaron Francis
    • The Australian

Children need to be raised in an environment where they are ­surrounded by happy, loving ­relationships, and it does not ­matter whether their parents are of the same sex or heterosexual, says the nation’s most senior ­family law judge.

Family Court Chief Justice Diana Bryant, who has presided over many hundreds of disputes involving broken families in her 17-year career as a family law judge, said what children needed most was to be surrounded by ­stable, functional relationships. “What you want for children is a stable, loving and ­caring relationship in which they are brought up,” she told The Australian. “It ­really doesn’t matter who their parents are as long as they have all of those aspects, and if they do, there is absolutely no reason why there should be any discrimination in my view.

“What you don’t want children to have is to be living in a confected, dysfunctional relationship — whether it is two parents of the same sex, or two heterosexual people.”

In a rare intervention in a key debate, Chief Justice Bryant said same-sex marriage would have no effect on the way the Family Law Act applied to children. This is ­because the legislation applies in exactly the same way to married and de facto couples and their children, regardless of whether they are in a heterosexual or same-sex relationship.

“The Act applies equally to children of same-sex couples as it does to children of heterosexual couples,” Chief Justice Bryant said. “Apart from divorce itself, if the Marriage Act was changed it is not going to make any difference to the way in which the Act ­applies.”

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