PROPERTY/FAMILY LAW

How do I get access to my kids / how do I find my children?

If your ex partner has unilaterally relocated with the children and you are unable to find them at their previous residence or school/day care we would suggest that you contact our office in relation to making an application in the Federal Circuit and Family Court of Australia to seek a Location Order. A Location Order is an Order made by the Court where Medicare and/or centrelink provide to the Court a current address for the children, this then allows us to serve the other party with the application to the Court wherein we seek parenting and/or property Orders.

If you DO have the contact details of the other party we would suggest that you get in contact with our office so that we can send correspondence to the other party proposing you spend time with the children and if that is unsuccessful then the next step will be to attend mediation before making an application in the Court.

How long does the Court process take?

The process of going through the Federal Circuit and Family Court of Australia can vary depending on your matter and further depending on whether the proceedings relate just to parenting or to parenting and property settlement. The Court process can take sometimes upwards of two (2) years from beginning to end (Final Hearing). Under the new system introduced on 1 September 2021 the aim for the Court is from the date of filing to the date of Trial be no longer than 12 months, the Court then intends to have judgements written and delivered within 3 months after the conclusion of Trial, to date we haven’t seen this new timeline in action as the system is only quite new however the Court is certainly very enthusiastic to see matters being cleared in faster time frames and so we are hopeful that the new system involving more Registrars will allow the time frame laid down by the Court to be achieved.

How long does mediation go for?

Mediation will generally take place between half day (4 hours) and full day (8 hours). If you are only dealing with parenting or property issues, more often then not half day will be sufficient however, if you are dealing with both parenting and property you would need to have a one-day mediation. The cost of mediation varies from around $1,100.00 for half day and up to $5,500.00 for full day depending on the level of expertise of the mediator. The more expensive mediators may well be ex Family Court Judges who obviously bring to the table a significant amount of experience and expertise and so in some instances it may well be that we recommend a mediator with those types of qualifications whereas in other matters, if there are not a lot of complicated issues it may well be that a less costly mediator would suffice. We would suggest you give us a call to discuss all your options in relation to mediation.

Are parenting orders enforceable/binding?

Orders made by Federal Circuit and Family Court of Australia are binding upon the parties. You will need to keep detailed notes as to the non-compliance – time, date and detail and what efforts you went to attempt to make the other party comply with the Orders. If the Orders are breached then the other party can bring a Contravention Application and the offending party if they plead guilty to the contravention or are found to be guilty of same, they are then subject to various punishments imposed by the Court including on occasion a change of the Orders that were previously made.

How do I stop my ex-partner leaving with my children to another state/country?

If you have concerns that the other party may move interstate or overseas we suggest that you move very quickly on these concerns and you seek legal advice and make an urgent application to the Court including Orders for that person to not be able to relocate more than a specified distance from their current location. Once parties do relocate and when they become settled, at that point it becomes more difficult for you to make an application to have them brought back to where they were previously living. These difficulties become more significant as time goes on and the other party is more settled i.e. found employment, children attending new school, signed a lease or purchasing a new property in that area.
It is important that you move as quickly as you can if a threat is made to move interstate particularly in circumstances where the other person may have a lot of family support where it is that they may be moving

We can’t reach an agreement and we do not know what to do?

If you have recently separated from your partner and can’t agree on your property or parenting arrangements, or perhaps you have been co-parenting effectively but now a discrete issue is causing problems, you have a few options available to you.

Your first step should be seeking legal advice. Some matters can be time-sensitive, and some actions can have big consequences, so it is important that you fully understand the legalities around your particular issue before proceeding.

The first step to reaching an agreement is negotiation. Negotiations can occur via correspondence or discussion between the parties, usually through their legal representatives. But often the most effective way (and an essential step prior to making an application to the Court in Parenting matters) is through Meditation.

A mediator is a professional trained to help parties reach an agreement through negotiation and compromise, they are an impartial third party and are not there to give you legal advice. You are able to attend a mediation alone, or with the support of a Solicitor.

If you and your ex-partner are still unable to reach an agreement after you have tried formal negotiations and mediation, you can make an application to the Federal Circuit and Family Court of Australia.

We have reached an agreement about what to do with the property/children what do we do now?

Property Matters

If you and your ex-partner have reached an agreement in relation to your Property Matters it is important to have this agreement formalised into a legal document. This will protect you into the future, or if they change their mind. Your first step should be seeking independent legal advice on your agreement.

The most common (and usually cost effective) way to formalise your agreement is through Consent Orders. Once drafted, the Application for Consent Orders is sent to the Court and the Orders will often be made without the need for you to attend Court. In order to utilise this option, your agreement must be one that the Court would consider to be “fair and equitable” in the circumstances. (Please note, if your agreement involved a Superannuation Split there are other procedural steps which need to be completed before the Court will consider making your Orders.)

Alternatively, if you have a more complex agreement which the Court may not consider to be “fair and equitable” but you and your ex-partner have both agreed that is how you wish to proceed, you can still formalise your agreement with a Binding Financial Agreement. If you are considering a Binding Financial Agreement you must receive legal advice.

Parenting Matters

Like with property matters, an agreement in relation to parenting matters can be formalised into Consent Orders which will be filed and sealed by the Federal Circuit and Family Court of Australia. There are legal implications to having Court Orders in parenting matters and consequences if you breach them, you should receive legal advice on your agreement before proceeding.

Alternatively, if you and your ex-partner have an agreement which you would like to document, but do not wish to formalise the agreement into Court Orders you can opt for a Parenting Plan. Parenting Plans do not have the legal consequences or enforceability of Court Orders but for some families they prove certainty and are enough to help them with their co-parenting relationship. Families with young children, or circumstances which will require the parents to re-evaluate the agreement regularly will often opt for a Parenting Plan which is easier to change and amend in the future.

When you have an agreement, you should receive independent legal advice before deciding which option is right for you.

How do I stop my ex-partner from selling assets?

Dependent upon what the asset is, you may not be able to, for example a motor vehicle or some item of furniture. Other assets such as a house and/or land you can lodge what is called a Caveat, which would not allow the party to proceed with any sale of the property as it would come up on the Certificate of Title. Each individual state has their own particular requirements for the lodgement of a Caveat. Once parties separate there is a general principle that assets should not be disposed of. However, in practical terms its quite frequent that parties sell assets post separation. In the short term the most effective solution if you’re concerned the other party might sell your assets, is to seek legal advice and have us write to the other putting them on notice that they do not sell any assets until the matters can be resolved. While this is not as strong as a Court Order if notice is given not to dispose any assets and then assets are disposed thereafter then if the matter does in due course come before a Judge it puts you in a better position as the other side was put on notice prior to the disposal of assets not to do so. The more effective solution would be to make an application to the Court and have specific Orders in relation to the non disposal of assets.

How do I protect my assets from my current, future or ex-partners?

If you are in a relationship with another person or looking to move into a defacto relationship with another person and either yourself or your new partner has assets that you wish to protect, we would suggest calling our office and seeking legal advice in relation to a Binding Financial Agreement.

Binding Financial Agreements allow the parties, by agreement to specify what would happen with each parties separate property and joint property if a relationship breakdown was to occur. In effect this quarantines each parties own property brought into the relationship and will specifically deal with any joint property and allow that to be split up into a particular percentage or an equal 50/50 split depending on how the parties wish to have the agreement written up. It may also allow for certain amounts of money to be paid above and beyond the quarantined property. We recommend calling our office so we can explain Binding Financial Agreements (BFA) further and give you advice on whether or not it would be suitable to your situation. When BFA’s are agreed upon both parties need to seek independent legal advice.

What is my ex-partner entitled to?

This is a complex area of law. It requires the following to take place:

Identify the existing legal and equitable interests of each party to the property;
Determine whether it is equitable and just in the circumstances to make a property settlement order by reference to those established interests;
Determine the direct and indirect, financial, and non-financial contributions (such as salary, care of children and homemaking) made by or on behalf of each of the parties as a percentage based entitlement;
Consider whether a further amendment to the percentage based entitlement should be made taking into account the future needs of the parties (such as, care of children, health, financial resources, ability to earn); and
Consider whether the result reached is a just and equitable result in all the circumstances.

What do I do if my children are being abused?

You should firstly contact the relevant state welfare authority and/or the Police. You will need to outline what abuse has been occurring and when you think that it has taken place. Your children may also be required to provide a statement to the welfare authority and/or the Police.

What is an ICL?

An ICL is an Independent Children’s Lawyer in the Federal Circuit and Family Court of Australia. ICL’s are appointed by the Court in certain circumstances generally when there are serious issues involved in the matter including such things as sexual abuse allegations, drug use, violence etc. ICL’s are funded by Legal Aid and on occasion Legal Aid will seek a contribution to the cost of the ICL from the parties dependant on their financial situation.

ICL’s are ‘Lawyers for the Children’ depending on the age of the children some ICL’s will meet with the children and discuss what’s been happening in their life and in particular in relation to the separation and the time they would spend with their parents. ICL’s also have an administrative type of role where they often issue subpoenas and organise family reports and are there to assist the Court in these matters.

What do I do if my ex-partner is not following the Court orders?

Write (email preferable, though text message is acceptable) notifying the ex-partner that they are not complying with the Court Orders.
If the matter is not resolved you should then attempt to arrange a mediation (so that a s60I certificate can be obtained).
If the matter has not been resolved, write a further letter to the ex-partner stating that you intend to commence proceedings in Court (and provide them with fourteen (14) days to remedy the situation).
If the matter is not resolved, commence contravention proceedings.

What are my rights as a grandparent?

Grandparents are recognised under the Family Law Act 1975 section 60CC (3) (B) (ii) and the Court is required to take into account the nature of the relationship of the child with other persons (including any grandparent or other relative of the child). Depending upon the role that the grandparent has played in the child/ren’s life it may be that the child/ren can be ordered to live with the grandparents, though it is dependent upon the individual circumstances of the case.

What’s the difference between a divorce and a property settlement?

A divorce officially ends the relationship (marriage) between the parties, whereas property settlement relates to the division of assets and liabilities of the relationship.

Are there any time limits when separating?

In marriages there is a time limit of twelve (12) months from the date of divorce to bring property matters before the Court. If the matter is outside the twelve (12) month time limit then leave of the Court would be needed before filing in the Court. In seeking leave the party would need to demonstrate that hardship would be caused to a party to the relevant marriage or a child if leave were not granted. Thus, if such hardship is not established then the application for leave must be dismissed.

In relation to de facto relationships there is a time limit of two (2) years from the date of separation for property related matters to be resolved. Similarly if there was an application outside that time period, leave would need to be sought from the Court before proceedings can be commenced.

Do all family matters need to go to Court?

No. Some matters, where the parties are generally in agreement as to parenting and/or property can be resolved through negotiations. If the matter cannot be resolved through negotiations, it may be that the matter can be resolved through a mediation.

What is a Conciliation Conference?

This is a Conference conducted by a Registrar or Judicial Registrar in relation to property settlement. It usually relates to property pools under $500,000.00 otherwise the parties would need to be involved in a private mediation (and one or both parties are responsible for the mediators fees).

Typically these Conferences take place after all disclosure obligations are complied with, both parties would need to complete a Balance Sheet as well as a positions paper which sets out both parties arguments in relation to contributions and future factors. Typically 95% of all matters that proceed through a Conciliation Conference settle (an agreement is reached).

What is a Family Report/11F Report?

Section 11F Report – Child Inclusive Conference Memorandum

This is a Report prepared by a Family Consultant employed by the Courts. This Report is usually an assessment as to what are the issues in dispute and what recommendations if any that the Family Consultant can make in the interim.

Family Report

This is a more complex Report often prepared by a Clinical Psychologist or experienced Social Worker. Some are done by Family Consultants employed by the Court, or on a private basis (where one or both parties pay the fees required).

The Family Report consists of interviews with the adults that are typically concerned with the child or children’s lives, interviews with the children (dependent upon the child/ren’s ages and level of emotional maturity) and observations of the interactions between the child/ren and the parents other adults concerned with the children’s lives.

The Family Report Writer makes recommendations as to where the child/ren should live and how much time they should spend with the other parent.

In the event that the Family Report is not favourable to you, the Family Report Writer can be cross examined at final hearing.

What do I need to file in court to commence parenting and property proceedings?

Parenting Proceedings

60I Certificate
Genuine Steps Certificate
Parenting Questionnaire
Initiating Application (interim and/or final orders)
Affidavit
Notice of Abuse

Property Proceedings

Genuine Steps Certificate
Property Questionnaire
Initiating Application (interim and/or final orders)
Affidavit
Financial Statement

What is a 60I Certificate?

This is a certificate issued by a Registered Dispute Resolution Practitioner if:

One party won’t attend mediation
The parties attend mediation and reach an agreement,
The parties attend mediation and there is no agreement reached or
If the Practitioner believes that the matter is not suitable for mediation (for example if there are allegations of long standing domestic violence)

Generally you need a s60I certificate to commence proceedings as part of the Pre-Action procedure.

What is the ‘Lighthouse Project’?

The Lighthouse Project is a three-part process:

Screening

When an Application or Response for parenting only orders is filed at one of the three pilot registries, parties will be asked to complete a questionnaire via a confidential and secure online platform known as Family DOORS Triage. Developed specifically for the Court, this can be completed safely and conveniently from any device including a computer, mobile or tablet.

Triage and case pathways

A dedicated, specialised team will assess and direct cases into the most appropriate case management pathway based on the level of risk. The team is made up of highly skilled Judicial Registrars, Family Counsellors (Court Child Experts acting in the role of Family Counsellors) and support staff with detailed knowledge in family violence and family safety risks. The team will triage matters and identify parties who may require additional support and safety measures.

Case management

Cases will be directed into one of three case management streams:

Evatt List – This specialist Court list is designed to assist families who have been identified as being at high risk of family violence and other safety concerns. The Evatt List focuses on early information gathering and intervention, through a Judge-led support team. The team has specialised training and is experienced in working with families where high risk safety issues have been identified.
Other case management – low to moderate risk cases will be directed into the usual case management pathway with a focus on completing dispute resolution to resolve or narrow the issues in dispute, where appropriate.
Family Dispute Resolution – suitable cases will be targeted for Court ordered Family Dispute Resolution to assist parties to resolve issues as soon as possible.

What is the difference between a Barrister and Solicitor?

Barristers and Solicitors are both people who can assist with your legal matters. The difference between a Barrister and a Solicitor is the type of legal work they do.

Barristers are formally trained in Court advocacy and cross-examining witnesses. In most cases, a Solicitor will look after your case initially. They will then engage a Barrister for written opinions, prospects of a case, and Court appearances.

Put simply, Barristers tend to practice as advocates representing clients in Court speaking on your behalf, whereas a Solicitor often does the preparation work before your Court appearances, assisting you through your everyday legal matters and affairs.

What is a Registrar?

Registrars are officers of the Court who assist Judges in the administration of Family Law matters. Under the Federal Court of Australia Act 1976 the Court or a Judge may direct that a Registrar may exercise certain powers of the Court.

Whilst they have less powers than a Judge, they can still make findings and Orders in relation to administrative issues and are often used for first mentions or to narrow down the issues in a case. Judges have wider judicial powers, and can determine actual issues of law, and make binding judgments in relation to complex issues.

PROPERTY/ FAMILY LAW

FREQUENTLY ASKED QUESTIONS

CRIMINAL LAW

What are my options if I am charged with a criminal offence?

Pleading guilty (accepting the charge and being punished);
Pleading not guilty (fighting the charge and seeking to have the Court decide that there is insufficient evidence to convict you);
Negotiate with Police Prosecutions as to the circumstance or fact of the charge, have the charge altered or replaced, or have the charge withdrawn; or
In some instances, it may be possible to ‘mediate’ or ‘divert’ a charge, such that it can be dealt with outside of the Court system

Can the Police do a body search?

There are some incidents where Police are able to search a person, however should Police conduct a search on you they must;

Respect your dignity and ensure that any personal search causes minimal embarrassment to the person,
If the search is conducted in public, it be limited to a frisk search if possible and if conducting a more thorough search be done in private and have a Police officer of the same sex carry out the search.

Can the Police search my house without a warrant?

There are some incidents where police can enter your property without a warrant. Some of the reasons are;

To investigate traffic offences such as drink driving to have an occupant undertake a breath analyst
To prevent domestic violence from occurring
To arrest someone or to search for evidence that is likely to be destroyed
To attend a crime scene

If Police have attended your property without a warrant, you should contact a Solicitor to see whether the attendance is lawful.

If I am innocent, why do I need a lawyer?

To protect your right and interests it is best to engage a criminal Solicitor whether or not you are innocent or guilty. The Court system can be complicated and has many Processes which can be difficult to self-navigate. Criminal Solicitors are also able to engage in negotiations with Police in relation to any possible discrepancies which may result in the charges being dropped.

What happens when you plead guilty to a charge?

There can be a range of potential consequences when pleading guilty such as:

Good Behaviour Bond
Fines
Community Service Orders
Licence suspension/ disqualification
Probation Orders
Immediate Parole
Suspended Sentence
Imprisonment

If you plead guilty, or are found guilty, one of the above sentence/s may be imposed upon you by the Court, which may include the recording of a criminal conviction and or traffic conviction.

There may also be other potential consequences such as:

employment-related issues;
adverse consequences for any licences or other registrations that you hold (such as blue cards, professional registrations etc.);
any admission of the facts by you, and any findings made by the Court, may be used against you as evidence in future civil proceedings;
depending on the nature of the offence, reporting conditions;
confiscation of your assets;
it may affect any existing insurance policy or the ability to obtain insurance in the future;
the ability to travel to some Countries; and
in some circumstances you may be deported.

What happens if I contest a Domestic Violence application?

The usual process when you advise a Magistrate that you wish to contest a Domestic Violence application is that a Magistrate will make directions for parties to file evidence and issue subpoenas if they require. The aggrieved/applicant will be directed to file all evidence they seek to rely upon in an affidavit by a certain date. You will then be served with the aggrieved/applicant’s affidavit and then you will be required to respond to the allegations in an affidavit also by a certain date. There is usually also a date provided for when subpoenas must be filed with the Court. The matter will usually then progress to a Trial review to confirm that all material is filed and the matter is ready to proceed to a Trial. The matter is usually (at the Trial review) then set down for a Trial on a further date. In some Courts, Magistrates may require other material to be filed such as “issues in dispute” and “case outlines”.

What are my options as a respondent in a Domestic Violence application?

You can consent without admissions to the Protection Order. This means that the Protection Order will be made final for a period of five (5) years however you are not making any admissions of guilt in respect of the allegations contained in the Application.
You can negotiate the terms of the Order or propose a party accept an undertaking instead of proceeding with the Application.
You can contest the application and seek to have the matter proceed to a Hearing.

What happens on the first Court date and can I ask for an adjournment to get more time to decide on what to do?

If you have been charged with a criminal offence, you are usually provided with a Notice to Appear, which outlines the charge, the Court and date you are required to attend. In some circumstances, a person is provided with a bail undertaking when charged, or a remanded in custody to appear before a Magistrate to apply for bail. On your first Court date you have the following options;

Adjourn the matter to obtain legal advice
In some circumstances where the offence is not serious, you can finalise the matter by way of sentence if you intend on pleading guilty to the offence
If the offence is more serious or you are contesting the charge, you can adjourn the matter to undertake negotiations with Police prosecutions or to request the brief of evidence.
If you are not already on bail when you appear in Court and you seek an adjournment, the Court will then require you to sign a bail undertaking prior to leaving Court.

What do I do If Police contact me and want to speak to me/interview me?

There may be many reasons why Police may need to speak to you and we encourage you to contact our office to allow us to make enquires on your behalf with Police, as to why they may need to speak with you.
We recommend not to speak with Police or conduct an electronic record of interview without first obtaining legal advice. Any information you provide may be used against you.

What is Bail?

The general position in Queensland is that everyone charged with a criminal offence is required to be placed on bail. Bail is simply the Court’s permission to allow you to remain in the community (rather than in custody) whilst your matter is being finalised.

Should the Court require to place you on bail, it may come with conditions. Some conditions may include the following:

That you attend Court on a specific date
That you reside at a particular address
That you are required to sign in to a Police station on particular days and times
That you have no contact with a particular person/witness
That you abide by a curfew
That you not attend a particular venue or address

If you breach any condition of your bail, you can be charged with an offence.