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    My partner and I have separated – Will I be able to stay in our home? 977 677 Dorter

    My partner and I have separated – Will I be able to stay in our home?

    Family Court Application Process

    Following the breakdown of a relationship it is common that both spouses may continue to reside in the home together until they have reached a property settlement. However, in some cases it is not practical or possible to do so. 

    If one party seeks sole occupation of the home, and wants the other to vacate, they can file an Application with the Family Court seeking exclusive occupation. 

    The Court has a wide discretion to make an order for exclusive occupation. The factors which the Court will take into consideration include:- 

    1. The respective financial position of each of party, and whether it would be practical and financially possible for either party to obtain alternate accommodation; 
    2. The needs of any children; 
    3. The hardship to either party or to the children; 
    4. The conduct of one party which may justify the other party being vacated – for instance, family violence; 
    5. Whether the Order is necessary and/or reasonable. 

    Importantly, the above considerations are neither fixed nor exhaustive. Ultimately, each case must be decided on its own merits in light of the particular set of facts and circumstances of the case. Overall the Court will seek to make a decision that is just and equitable, or fair. 

    If there are serious issues of domestic violence you may seek to apply for an Apprehended Domestic Violence Order that may restrain a person from attending upon a particular place(s), which can include the home. 

    To assess your particular situation and determine whether you can stay in your home after separation, Dorter Family Lawyers & Mediators are expert family lawyers who specialize in all areas of family law and can assist. Please contact us on (02) 9929-8840.

    Rebekah Dorter
    Principal

    Christopher Palumbo
    Associate

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

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    What is Parental Alienation? 1024 683 Dorter

    What is Parental Alienation?

    What is Parental Alienation?

    Parental Alienation is unique to families who have separated or who are having a parenting dispute. Parental Alienation occurs when one parent manipulates the relationship between a child and the other parent, for their own benefit, damaging the relationship between the child and the other parent.   The manipulator often sets out to destroy the relationship between the child and other parent by belittling and undermining the other parent. 

    Parental Alienation results in the child actively rejecting their relationship with the other parent and refusing to spend time with that parent, for no apparent reason or justification. The child’s rejection usually reflects the attitude of the alienating parent, not the child’s own views, and can have devastating consequences on the child’s long-term emotional development.  It also has a devastating emotional impact on the parent who is separated from their child, which is often the aim of the alienating parent.

    Common examples of conduct of an ‘Alienator’.

    Parents, step-parents and/or grandparents can engage in alienating conduct. Some common behaviours include:

    1. Interfering with/monitoring communication between the child and the other parent;
    2. Deliberately speaking ill of the other parent in the child’s presence;
    3. Making unilateral decisions regarding the child’s long term welfare (eg moving residence or schools);
    4. Over-sharing unnecessary details of the separation with the child;
    5. Projecting their own fears and opinions of the other parent on to the child;
    6. Deliberately making the child unavailable to the other parent during scheduled times;
    7. Suggesting to the child, without justification or evidence, that the child has been the victim of abuse by the other parent.

    Parental Alienation can be insidious. It can be difficult to detect the signs, or to differentiate it from other acts in a high-conflict separation. It is necessary to act quickly and obtain advice and help.

    How and where to get HELP.

    Steps should be taken quickly to address and stop the alienating parent’s conduct, to protect the child and the alienated parent. 

    Fortunately, our Family Law system recognises the child’s right to have a meaningful relationship with both parents following separation, so long as it is in the child’s best interests. This means the child has a right to have both parents involved in their life, to the maximum extent consistent with their best interests.

    When one parent alienates a child from the other parent, this is contrary to the child’s rights. Steps can be taken to ‘break’ this cycle, but timing is critical.

    Our Family Law system provides different ways to protect children and the alienated parent. These include:

    1. Family Therapy;
    2. Counselling for the child, and the parent/s;
    3. Mediation and arbitration (Alternate Dispute Resolution);
    4. Court Orders.

    If therapy, counselling, or Alternate Dispute Resolution are not successful, the Court can make orders to provide for the child to spend time with the alienated parent, and if appropriate, make orders that the child not spend time with the alienating parent for a period of time.

    It is important to prioritise the health and welfare of your child. Whether you are concerned that your child is being alienated from you, or you are being accused of being an alienator, it is critical not to over-share your concerns or opinions with your child.

    Ensure you obtain support from an adult network. Psychologists and family therapists are able to assist you through the process.

    Seek legal assistance

    Allegations of Parental Alienation should be taken seriously and help should be obtained promptly. Parental Alienation has a serious impact on you, your child and your relationship with your child. It also has an impact on your family law case. If you are concerned about Parental Alienation you should seek urgent assistance from professionals.

    If you require advice about what steps to take, please contact Dorter Family Lawyers and Mediators on (02) 9929 8840 or mail@inst1045122-8984.ozhosting.com for a confidential discussion.

    Dorter Family Lawyers and Mediators offers specialist family law advice in McMahons Point on Sydney’s Lower North Shore. Rebekah Dorter and Bronwyn O’Loan are experienced Family Lawyers working with Parental Alienation and are available to assist you.

     

    Bronwyn O’Loan
    Senior Associate

    Rebekah Dorter
    Principal

                                                                                                                    

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

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    Fast-Tracking Family Law Matters 1024 605 Dorter

    Fast-Tracking Family Law Matters

    In the News: Fast-Tracked Family Law Matters

    “Women’s Economic Security Package to assist women exposed to family violence and streamline the Court service to couples with property pools under $500,000.”

    In November 2018, a report provided by the Women’s Legal Service Victoria, identified a procedural roadblock preventing parties from accessing justice and reaching a timely, cost effective resolution in the Federal Circuit Court of Australia.

    The report from the Women’s Legal Service Victoria appealed for a “small claims” stream in the family law system. 

    The response to the report from the Women’s Legal Service Victoria was the creation of a new “pilot program” for some family law matters, namely those with a net property pool of $500,000 or less (including superannuation). Pursuant to Practice Direction 2 of 2020, from 1 March 2020, these cases, known as “Priority Property Pools under $500,000 Cases” or “PPP500 Cases” will be effective.   

    The purpose of this new stream of family law matters is twofold, namely: –

    1. To assist women who have been the victim of family violence by providing a timely, cost effective route to resolution their family law dispute; and
    2. Ensure families, with limited financial assets, do not exhaust these assets on legal expenses.

    Purpose of Fast Tracked Family Law Matters

    Chief Justice Will Alstergren, the head of the Family Court of Australia and Federal Circuit Court, described the pilot program as improving “access to justice”.

    The report from the Women’s Legal Service Victoria observed that there is a significant reluctance from women who have experienced family violence to pursuing in Court, their share of family assets. This reluctance is usually coupled with exposure to financially controlling behaviour by their spouse during the relationship.

    The pilot program aims to assist women who have been subjected to family violence or financially controlling behaviour during their relationship by assisting them navigate the family law system, provide them with access to efficient alternate dispute resolution processes and minimise the animosity in proceedings.

    The program also identifies that parties to family law proceedings, where the asset pool is not significant, would incur a small fortune in legal fees. The program seeks to reel back the legal costs incurred and appropriately match legal fees with the difficulty and issues in the matter.

    Who Does the Program Apply to?

    To be classified as a PPP500 Case, proceedings must be commenced in the Federal Circuit Court of Australia, seeking an alteration of property interests for matrimonial or defacto assets.

    It must also meet the following criteria: –

    1. The value of the net assets of the parties (including superannuation) is less than $500,000; and
    2. There are no companies or other commercial entity such as a family trust, company, or SMSF, that requires a further expert valuation; or
    3. The Court makes a declaration that the matter is assigned as a PPP500 case.

    A PPP500 matter is unable to be established if either party is seeking Orders in relation to parenting, child support / child maintenance or enforcement of Orders.

    Steps in a PPP500 Case

    An emphasis on “Registrar-Led” resolution was a major focus of the PPP500 Case program.

    There are six (6) primary steps in the PPP500 Program, of which the first four (4) are Registrar-led and the last two (2) are Judge-led: –

    1. Before the First Court date, preliminary orders will be made by the Registrar in chambers in relation to the balance sheet and any preliminary valuation issues;
    2. The first Court date before a registrar, at which time, the balance sheet will be finalised and the matter will proceed to a conciliation conference, private mediation, Legal Aid conference or other alternate dispute resolution process;
    3. The parties engage in an Alternative Dispute Resolution Process;
    4. The parties attend the Second Court date for further directions, only if it was not settled during step 3 above;
    5. The parties have a Procedural hearing before a Judge in preparation for a Final Hearing and the Court will give directions in relation to the filing of evidence; and
    6. Final hearing (either Less Adversarial Trial, Trial on the papers or traditional Final Hearing).

    The streamline program provides parties to family law proceedings with a prompt, cost effective and amicable regime to resolve disputes without the need for acrimony and prolonged proceedings.

    If you have separated from your spouse or partner and the above applies to you, please contact Dorter Family Lawyers and Mediators to obtain assistance from one of our family lawyers.  We are based in North Sydney and are available to assist you with your property settlement.

    By Luke Meehan
    Dorter Family Lawyers & Mediators Solicitor

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    Binding Financial Agreements and How to Set them Aside 1024 684 Dorter

    Binding Financial Agreements and How to Set them Aside

    Have you entered into a Binding Financial Agreement (BFA) that is outdated or is unfair?

    In certain circumstances, the laws in Australia may enable a party to receive a just and equitable property settlement, if permitted by the Court.

    Recent Decision

    In October 2019, in the decision of Westacott & Dunwoody (No. 2) [2019] FAMCA 719, Dorter Family Lawyers and Mediators successfully set aside a BFA on the grounds that it would have been unjust and inequitable to not uphold the Termination Agreement the parties had entered into on separation. Dorter Family Lawyers represented the Husband who is now able to seek a property division that will be just and equitable under the Family Law.

    The Husband sought to set aside a BFA entered into by both the Husband and the Wife in 2005. In 2018, the parties entered into a Termination Agreement which enabled the parties to enter into Consent Orders for a final property settlement with terms different to their original BFA.

    The Wife later sought for the Termination Agreement to be set aside, and to uphold the BFA on the grounds that the Husband did not obtain the required independent legal advice when entering into the Termination Agreement.

    The Court found that since the making of the BFA, the Wife had made various payments to the Husband which were consistent with the Termination Agreement and inconsistent with the BFA. Accordingly, the Court found that it would be unjust and inequitable for the Termination Agreement to not be upheld and therefore, declared the Termination Agreement binding, which effectively terminated the BFA.

    What is a BFA?

    A BFA, or commonly known as a ‘Prenup,’ is an agreement entered into by two parties to a relationship which sets out how, in the event of a relationship breakdown, the parties’ financial affairs and property will be dealt with. You can enter into a BFA prior to being married or engaged, during a de facto relationship or marriage, or after a divorce.

    Provided that all the legal requirements are satisfied when entering into the BFA, you and your partner will be bound by the terms of the agreement. As a result, you do not need to approach the Court for a final determination of your property settlement in the event your relationship breaks down.

    Is your BFA Binding?

    Before you consider setting aside your BFA, the Court will consider whether your BFA is binding.

    Under the Family Law Act 1975 (Cth) (“the Act”), a financial agreement is only binding if you and your partner each satisfy the following:

    1. The agreement is signed by each party;
    2. Before signing the agreement, independent legal advice is obtained by each party in relation to the effect of the agreement and the advantages and disadvantages of the agreement;
    3. Each party obtains a statement signed by their legal practitioner stating that this advice was provided; and
    4. Neither party has terminated the agreement and the agreement has not been set aside by the Court.

    If one or more of the above has not been satisfied, you may not be bound by your BFA. You may then be entitled to seek a property settlement that would be considered just and equitable under the Family Law.

    Terminating the BFA

    If both you and your partner no longer wish to be bound by your BFA, you may terminate the agreement by entering into a further BFA terminating the first agreement, or by entering into a ‘Termination Agreement’. These are the only two options available to terminate the agreement in accordance with the Act and you should obtain legal advice about how to do this.

    Before signing a Termination Agreement, each party must obtain independent legal advice to understand their rights and to understand the advantages and disadvantages of making the Termination Agreement.

    Setting aside the BFA

    If the parties have not terminated their BFA and a party wishes to set aside the BFA, the Court must be satisfied of one of the following grounds:

    1. The agreement was obtained by fraud;
    2. The purpose of the agreement was to defraud or defeat a creditor or the other party;
    3. The agreement was made with reckless disregard to creditors or the other party;
    4. The purpose of the agreement was to defeat an interest of the other party;
    5. The agreement is void, voidable or unenforceable;
    6. Circumstances have arisen to make the agreement impracticable to be carried out;
    7. Since the making of the agreement, there has been material changes which involve the care, welfare and development of a child and the party who is responsible for the child will suffer hardship if the BFA is not set aside; or
    8. A party engaged in unconscionable conduct when making the agreement.

    Application of Rules of Contract

    A BFA, being a contract, is subject to the laws of contract and legal advice should be obtained to ensure your BFA also complies with the laws of contracts.

    Simplifying the laws of contract, the BFA may be voidable or unenforceable if:

    1. One party repudiates the contract by showing that they no longer wish to be bound by the contract and the other party chooses to rescind the contract; or
    2. One party intentionally waives their right to enforce the contract or abandons the contract by acting in a way that is totally inconsistent with the contract.

    FAQs

    1.Do I have to go to Court to set the BFA aside?

    Unfortunately, to set a BFA aside, you will need an order of the Court if the other party does not agree to mediate and reach agreement. If both parties agree to not be bound by a BFA, a Termination Agreement should be completed in accordance with the Family Law Act.

    2. What if the BFA does not deal with all of the property in the event of separation or divorce?

    Part or all of the BFA may become uncertain and therefore unenforceable. This will depend on the terms of the clause considered in the context of the BFA entirely.

    3. Can the BFA include a parenting agreement?

    These clauses will not be binding and cannot be enforced. The best way to deal with parenting is through Consent Parenting Orders.

    4. Can the BFA include a parenting agreement? 

    The Court will still have jurisdiction to deal with spouse maintenance in accordance with the Family Law.

    Each party’s circumstances are unique and legal advice should be obtained from a family lawyer who specialises in such agreements if you seek to rely upon or set aside a BFA.

    If you require assistance, please contact Dorter Family Lawyers and Mediators on (02) 9929 8840 or via email on hello@inst1045122-8984.ozhosting.com.

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    Surrogacy Agreement 1024 683 Dorter

    Surrogacy Agreement

    If you and your partner want to have a child but are unable to conceive naturally, you may be considering the solution of surrogacy.

    It is important to understand the legal process of surrogacy, and the parental repercussions of surrogacy before making this decision.

    What is surrogacy? 

    Surrogacy is when a woman carries and gives birth to a baby (the surrogate mother) for another person or couple who want to have a child.

    Under section 6 of the Surrogacy Act 2010 (NSW), the surrogate mother is defined as “the woman who agrees to become pregnant or to try to become pregnant with a child, or is pregnant with a child, under the surrogacy agreement.

    The surrogate mother becomes pregnant through assisted reproductive technology (“ART”), most commonly, IVF.

    Is surrogacy legal?

    Altruistic surrogacy, which occurs without financial benefit to the surrogate mother, is legal in Australia.  It is usual for a surrogate’s medical bills and out of pocket expenses to be met by the intended parents, and this can be captured in a surrogacy agreement between the parties as ‘reasonable costs’.

    Reasonable costs of the surrogate mother include:

    1. Reasonable medical, travel and accommodation costs;
    2. Health, disability or life insurance premiums that would not have been obtained but for the entering into of a surrogacy agreement;
    3. Any reasonable costs incurred in respect of the child, including medical costs, and
    4. Loss of earnings for a period of not more than 2 months during which the birth happened or was expected to happen and any other period during the pregnancy when the birth mother was unable to work on medical grounds.

    Reasonable costs associated with entering into and giving effect to a surrogacy agreement include:

    1. Receiving counseling in relation to the surrogacy arrangement (mandatory requirement);
    2. Receiving legal advice in relation to the surrogacy arrangement or a parentage order arising out of a surrogacy arrangement, and
    3. Being a party to proceedings in relation to a parenting order, including reasonable travel and accommodation costs.

    Commercial surrogacy, where payment is made to the surrogate mother for carrying the unborn child, is illegal in Australia.

    What happens once the child is born?

    Once born, the child will be registered as the child of the surrogate mother, even though she is not genetically related to the child.

    The intended parents must establish the child’s ‘legal parentage’ to become the intended legal parents of the child. The intended parents will need to apply to the Supreme Court for a Parentage Order in the state where they live.  This application must be made not less than 28 days and not more than 6 months after the birth of the child. The Parentage Order transfers parentage from the surrogate mother to the intended parents.  Once a Parentage Order is made, the birth certificate is reissued with the new parents listed, replacing the surrogate mother.

    How is a parentage order made?

    To be eligible for a parentage order, the following preconditions must be met (however some preconditions are mandatory and others can be waived in exceptional circumstances):

    1. The order must be in the best interests of the child;
    2. The surrogacy arrangement must have been altruistic (not commercial);
    3. The surrogacy arrangement must be made pre-conception;
    4. The intended parent must be a single person or, if there are two intended parents, they must be a couple at the time of entering the arrangements;
    5. The child must be under 18 years at the time the order is made;
    6. The surrogate mother must be at least 25 years old when entering into the arrangement;
    7. The intended parents must be at least 18 years of age when entering into the arrangement;
    8. There must be a medical or social need for a surrogacy arrangement such as that the intended parent is unable to conceive a child, unlikely to be able to carry a pregnancy for medical reasons, unlikely to survive a pregnancy, that conceiving a child would likely result in a child with a genetic disorder;
    9. All affected parties must consent to the making of the order;
    10. The intended parents must be living in NSW at the time the application is heard;
    11. The child must be living with the intended parents at the time the application is heard;
    12. Surrogacy arrangement must be in writing and signed by the surrogate mother, her partner (if any) and the intended parents;
    13. All of the parties must have received counselling prior to signing the Surrogacy Agreement;
    14. Specified information must be provided for inclusion to the Director-General of the Department of Health, for entry in the central register (with information kept under Division 3 of Part 3 of the Assisted Reproductive Technology Act (2007);
    15. The birth of the child must be registered;
    16. All parties involved in the surrogacy arrangements must have obtained independent legal advice from an Australian legal practitioner about the surrogacy arrangement and its implications before entering into the Surrogacy Agreement, with the surrogate mother (and her partner if any) having received advice independent of that of the intended parents.

    If you are considering being involved in a surrogacy pregnancy, or need advice following the birth of a child via surrogacy, please contact Dorter Family Lawyers and Mediators on (02) 9929 8840 or hello@inst1045122-8984.ozhosting.com.  Dorter Family Lawyers and Mediators offer specialist family law advice in McMahons Point on Sydney’s Lower North Shore.

    Bronwyn O’Loan
    Senior Associate

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

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    Shared Parental Responsibility and Equal Time 1024 683 Dorter

    Shared Parental Responsibility and Equal Time

    Under the law, each parent has parental responsibility for a child who is under 18 years of age. This continues to be the case even if the parents separate or either or both of the child’s parents re-partner or re-marry.

    What is parental responsibility?

    Parental responsibility means all the duties, responsibilities and authority which parents have in relation to children. This involves the parents having a say in the major decisions that affect a child’s life, including where the child lives, medical treatment, education and religion. In Australia, the Family Law Act 1975 (Cth) uses the concept of “parental responsibility” rather than “parental rights” in recognition that parental powers exist for the benefit of the child, and not for the benefit of the parent.

    When a relationship breaks down, the law applies a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility for the child. This means that when making a parenting order, the Court is required under law to presume that it is in a child’s best interest for the child’s parents to have equal shared parental responsibility for the child.

    Where there is no Court order, parents are able to exercise their parental responsibility independently or jointly and there is no obligation for the parent’s parental responsibility to be shared. However, when the Court makes an order for equal shared parental responsibility, the parents are required to consult with one another and make decisions about major long term issues that affect the child jointly, unless the court orders otherwise.

    The presumption of equal shared parental responsibility will not apply if there is evidence that a parent or a person who lives with that parent has abused the child or engaged in family violence (such as emotional, economic or psychological abuse). The presumption can also be rebutted if the court believes that shared parental responsibility is not in the best interests of the child.

    It is important for parents to understand that the presumption of equal shared parental responsibility does not mean a presumption for each parent to spend equal time with a child. If the Court is to apply the presumption of equal shared parental responsibility when making parenting orders, then the Court will use that presumption as the starting point for considering whether it is practical to make an order for the child to spend equal time with each parent.

    Will the Court make an order for equal time?

    The court will only make an order for a child to spend equal time with the parents if the court is satisfied that:

    1. it is in the best interests of the child;
    2. it would be reasonably practicable for the child to spend equal time with each parent.

    When making parenting orders, the child’s best interests remain the overriding consideration. When considering the best interest of the child, the Court will look to various factors set out in the legislation, including, but not limited to:

    1. the benefit to the child of having a meaningful relationship with both parents;
    2. protecting the child from harm;
    3. views expressed by the child; and
    4. the extent each parent has participated in decisions affecting the child or spent time with the child.

    When considering whether a proposed order for equal time is “reasonably practicable”, the Court must have regard to:

    1. how far apart the parents live from one another;
    2. the parent’s current and future capacity to implement such an arrangement for equal time and the impact of such an arrangement on the child; and
    3. other matters the Court considers relevant.

    If the Court decides not to make an order sought for equal time, the Court must consider whether it would be in the child’s best interests and reasonably practicable for the child to spend “substantial and significant time” with each parent. An order for substantial and significant time will often involve an order for the child to live with one parent and spend designated time with the other parent that will include days that fall on weekends, weekdays and other such time as would allow the parent to be involved in the child’s daily routine and significant occasions.

    If the Court decides that neither equal time nor substantial and significant time are in the best interests of the child, then the Court will use its discretion to make orders as to arrangements for the care of the child, considering the best interests of the child as provided for in the legislation.

    Key takeaways

    1. Parental responsibility means all the duties, responsibilities and authority which parents have in relation to children.
    2. Under the law, each parent has parental responsibility for a child who is under 18 years of age.
    3. Where asked to make parenting orders, the Court will presume (unless otherwise rebutted) that it is in the best interest of the child for their parents to have equal shared parental responsibility for the child.
    4. Equal shared parental responsibility does not mean the child spends equal time with each parent. There is no presumption for equal time under the Family Law Act 1975 (Cth).
    5. When considering the time that a child should spend with each parent, the Court will consider the best interests of the child as paramount, and also whether such an arrangement is reasonably practicable.

    Dorter Family Lawyers and Mediators offer specialist family law advice in McMahons Point on Sydney’s Lower North Shore.  If you have recently separated or have any questions about your current situation, please call us on (02) 9929 8840 or email us at hello@inst1045122-8984.ozhosting.com to discuss your matter.

    Lauren Sanderson
    Solicitor

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

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    Property Settlement Time Limits 1024 683 Dorter

    Property Settlement Time Limits

    Separation can be a very stressful and emotional time, and parties may avoid or prolong finalising a property settlement with their ex-partner (which may or may not include a provision of spouse maintenance) for a variety of reasons.

    Whilst there are no time limitations for parties making an application to the Court for parenting orders for children, the Family Law Act 1975 (Cth) sets down strict time limits in relation to claims for a property settlement following either the making of a divorce order or the breakdown of a de-facto relationship.

    Applicable time limits

    Section 44 of the Family Law Act 1975 (Cth) (Act) sets out the relevant time periods for parties to apply to the Family Court or Federal Circuit Court of Australia for a property settlement.

    • For married couples, a claim must be commenced within 12 months of a divorce order being made.
    • For de-facto couples, a claim must be commenced within 2 years of the date of final separation.

    Leave to make an application out of time
    Notwithstanding these time limitations, it is possible to make an application to the Court for leave (formal permission) to be granted an extension of time under the Act, and be permitted to have their property settlement heard and determined by the Court notwithstanding that these time periods have expired.

    When considering applications for an extension of time, the Court usually undertakes a two (2) step enquiry.

    The first step involves the Court considering whether hardship (substantial detriment) would be caused to the applicant party if leave were not granted.

    If the applicant party establishes hardship, the second step involves the Court using its discretion to determine whether or not the claim/s should be heard by the Court.

    Factors the Court may consider include:

    • the length of the delay in bringing the claim;
    • whether there is an adequate explanation for the delay in bringing the claim; and
    • the prejudice that may be suffered to the other party if leave is granted.

    Expert help available

    Applications for leave to commence proceedings out of time are highly technical areas of family law and ultimately depend upon the individual facts and circumstances of each case.

    If you find that you are out of time to commence a property settlement claim, it is vital that you obtain legal advice regarding the prospects of success in applying to the Court for leave.

    Alternatively, if you have been served with Court documents by your ex-partner (or his/her legal representatives) and you are aware that their claim/s are out of time, it is also vital that you obtain legal advice regarding the merits of your ex-partners claims.

    Dorter Family Lawyers and Mediators are experts in family law and can assist you in all areas of family law. If you would like to book an appointment to see one of our experienced family lawyers for a confidential discussion, please call our office on (02) 9929 8840 or email us at hello@inst1045122-8984.ozhosting.com

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    Should we Mediate our Family Dispute? 1024 695 Dorter

    Should we Mediate our Family Dispute?

    Mediation is a quick, economical and effective means of resolving family law disputes regarding property and/or custody.

    Should we mediate?

    If you and your ex-partner are experiencing conflict and wish to resolve your dispute with less intervention from a third party, mediation is a forum which ensures you and your ex-partner drive the process and the outcome.

    What is Mediation?

    Mediation is a negotiation process in which an independent third party, known as the mediator, assists parties to identify the issues in dispute, develop options, consider alternatives and endeavour to reach an agreement which reflects the key objectives of the parties.

    Mediation Benefits

    • offers parties more control over the outcome;
    • is less formal and less intimidating than appearing in Court; and
    • provides an efficient, speedy and significantly less expensive method to empower parties to settle their matter.

    Settlement of a dispute through mediation can assist to preserve a working relationship and is, therefore, particularly beneficial for separated parents who will continue to communicate and care for their children together.

    Mediation can also be helpful if there is the potential for a negotiated outcome that better suits the needs and interests of the parties than a judge’s decision, or if there is a possibility that a judge’s decision will not end the dispute.

    Confidentiality in Mediation

    Confidentiality is the hallmark of mediation. As far as permitted by law, all discussions during the course of a mediation are private and confidential. If a matter is in Court, the judge is not informed of any information disclosed during the mediation.Do we mediate?

    Dorter Family Lawyers

    Rebekah Dorter is an Accredited Mediator with LEADR (The Resolution Institute), an international organisation promoting mediation for conflict resolution. In her role as a Mediator, Rebekah acts as a neutral facilitator by asking questions, encouraging open discussion, offering different perspectives, expressing issues in alternative ways and presenting her view as to how a Court might determine the issues.

    Parties can attend mediation alone, or with their legal representatives present.

    If you would like to book a mediation or would like to make further enquiries, please call our office on (02) 9929 8840 or email rebekah@inst1045122-8984.ozhosting.com or sabrina@inst1045122-8984.ozhosting.com

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    Three Common Questions About Family Law 1024 683 Dorter

    Three Common Questions About Family Law

    Getting a Divorce in Australia

    How do I get a divorce?

    Australia operates under a ‘no fault’ divorce regime. This means that there is only one ground for divorce, being the ‘irretrievable breakdown of marriage’. This is proven by there being a period of 12 months separation between the parties to the marriage. This separation can occur even while the parties are still living under the same roof. After these 12 months have passed, either party, or the parties jointly, can successfully apply to the court for a divorce.  There are important consequences to obtaining a divorce, however, and you should seek legal advice before proceeding.

    How do I obtain a fair property settlement arising from my marriage or de facto relationship?

    In broad terms, in Australia property settlements are determined by following a 4 step process:

    Step One involves identifying and valuing the pool of assets between both parties to the relationship. This includes all assets, including houses, cars, business assets, trusts, and superannuation.

    Step Two involves assessing the contributions of each party to obtaining, conserving or maintaining the property pool. Contributions do not only include direct financial contributions, but also include indirect financial contributions (such as offering ones’ house as security for the purchase of other property), non-financial contributions (such as assisting with renovations on the matrimonial home), homemaking contributions and parenting contributions. Based on these contributions, an initial percentage division of the property pool determined in Step 1 will be determined.

    Step Three involves considering whether the division contained in step 2 should be varied on the bases of a number of different factors, including the age and health of the parties, the financial resources of the parties, the care of children, eligibility for social security benefits, the earning capacities of each of the parties, and any other factor relevant matter.

    Step Four involves determining whether the division of the asset pool is just and equitable in all the circumstances. Every relationship is different, meaning what is just and equitable in the circumstances differs in every case.

    It is important to seek legal advice as each of the steps in this process are multifaceted and can be complex, depending greatly on the individual circumstances of each case.

    How do I know how to divide time with a child between parents?

    Australia takes a children’s rights approach to family law, rather than a parental rights focus. This means that in any decision about a child, the best interests of the child must be a paramount consideration. The primary considerations in determining the best interests of the child are the benefit to the children of having a meaningful relationship with both children’s parents and the need to protect the child from being exposed to abuse, neglect, or family violence. There are, however, a number of additional considerations, such as the views of the children (depending on their maturity), the ability of the parents to cooperate, and other practical considerations.

    Every family relationship is different, so it is important to seek legal advice to know the best solution for you when it comes to family breakups.

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    How Important are my Children’s Wishes in Deciding Issues in Family Court? 1024 683 Dorter

    How Important are my Children’s Wishes in Deciding Issues in Family Court?

    Child’s Right To Be Heard

    “What if my child hates the other parent?”

    “What if my child wants to spend more time with the other parent?”

    “What if my child is not mature enough to make decisions about where they should stay?”

    Family Lawyers hear these questions all the time when they assist in resolving parenting disputes. These questions boil down to a seemingly basic general question – how much weight does the Court give to the views of children in making decisions about them? The answer to this seemingly simple question can be complicated, especially when the child’s parents do not agree about the capacity of the child to make decisions.

    Balancing the Child’s Right to be Heard with the Best Interests of the Child

    The Family Law Act 1975 (Cth) takes a child focused, rather than a parental rights approach to decision making about a child. This means decisions by a Court use the best interests of the child as a paramount consideration. In determining the child’s best Interests, one of the factors to be considered is the views of the children taking into consideration the children’s age and level of maturity. However this must be balanced with a number of other considerations, including the benefit to the child of having a meaningful relationship with both parents.

    How the Court Considers the Views of the Child

    The problem with using the views of the child to determine their bests interests was considered by the High Court in Bondelmonte & Bondelmonte [2017] HCA 8. In this case, the mother allowed her two boys to travel with their father to New York (having previously settled their parenting arrangements in 2014). Not long after their departure, the father’s solicitor informed the mother’s solicitor that the father had decided to live indefinitely in the United States and the children will remain with them. The father claimed that the boys had expressed a desire to remain in New York.

    The High Court was unimpressed by the father’s actions and ordered that he return the children to Australia. The court held that the views of the child were “but one consideration of a number to be taken into account in the overall assessment of a child’s best interests”. The Court emphasised that the importance of the child’s views in a given case may depend on factors such as the age or maturity of the child, especially given a child may not appreciate the long term implications of separation from one parent or the child’s siblings. In addition, the Court considered important the lifestyle the father was offering them in New York exerted an influence over the children’s choices, and that the views expressed by them had been ‘contrived’ by the father.

    3 Key Points to Take Away

    • Your child has a right to have their voice heard in relation to decisions that will be made about them
    • In deciding what weight to give the views of the children, the Court will look at the individual facts of each case – the child’s age, maturity, and the influence of parents over the children are all relevant.

    This means every case is different, and it important to seek legal advice in order to get the full picture.