How to Choose a Divorce Lawyer

How to Choose a Divorce Lawyer

A divorce recognises, by law, the termination of a relationship and the end of legal responsibilities partners owe to one another. It often involves making arrangements in relation to property, children and spousal maintenance. Divorcing a partner is a major life event and can be a stressful and emotional time for you and your family. It is therefore pertinent to choose the right divorce lawyer to represent you and guide you through this process.

1. Assess your Needs

Every divorce lawyer has strengths in different areas. When choosing a divorce lawyer, you should always ask yourself – what is it that you require the lawyer to do for you? Obtaining a divorce order does not automatically determine issues relating to property, maintenance or children, therefore it is important to consider the impact your divorce may have on these aspects of your relationship.

Where there are many legal facets to your separation, you will benefit from good legal representation with experience in Family Law. It is also important to consider how you want the process resolved. There are collaborative alternatives to litigation, such as mediation, in which you have more autonomy to determine the outcome and the lawyer plays a different role. Such options are available and can be applied depending on the facts and circumstances of your matter. However, if an amicable agreement between the parties cannot be reached, you may need to consider engaging a lawyer to assist you in court proceedings.

2. Do your Research

Understanding the advice you are provided with is essential and key. Understanding the core principles of advice can be a good start and the Family Court of Australia has an online resource that provides an essential guide, however there is no substitute for good legal advice.

Once you have a basic understanding of divorce law, you will be better equipped to start researching different lawyers. Factors to consider when assessing whether a lawyer is right for you include:

  • Level of skill and experience (divorce is a specialised area of law so choosing someone with the right skills is essential);
  • Recommendations from trusted people;
  • The values of the firm they work within; and
  • Any initial information regarding their approach and communication style.

Your research should assist you in compiling a modest list of lawyers you can contact. It is recommended you do not limit yourself to just researching one law firm in the event that they are not available or are not a good fit for helping you to achieve your desired outcomes.

3. Initial consultation

The next step is to arrange an initial consultation with the lawyers on your short list. This will enable you to gauge the attributes of each lawyer. At Etheringtons Solicitors, we offer a discounted rate for an initial consultation, during which you will receive preliminary advice and you will have the opportunity to better understand who your lawyer is and how they can assist you.

It is important that you feel comfortable with your lawyer as they will be assisting you through a vulnerable stage of your life and your decision may greatly impact other parties, such as grandparents and children. Therefore, personality and ease of communication is also a factor to consider.

How Etheringtons Solicitors can help

Etheringtons Solicitors can assist with your separation and divorce. If you need further advice or assistance with Family Law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact page.

Getting it Right the First Time in Family Law Matters

Getting it Right the First Time in Family Law Matters

The ancient doctrine of res judicata still resonates in Australian courts today. Res judicata is a Latin phrase that translates to “a matter decided” and refers to the preclusion of claims from being litigated when they have already been decided with finality and merit. The doctrine protects the court system from being overrun by litigants retrying cases until a favourable outcome is achieved, which is essential in the context of an overrun and under resourced Family Court system. It also protects other parties from having to respond to repeated claims at their expense.

However, it also increases the stakes when pursuing litigation, since once a matter is res judicata, it cannot be heard again. Therefore, it is critical if you are considering pursuing a matter in court, that you place yourself in the best possible position to achieve a favourable outcome.

Clayton v Bant [2020] HCA 44

The Facts

A significant case heard in the High Court of Australia considered the operation of res judicata in relation to whether the decision of a foreign court could preclude a party from pursuing property and spousal maintenance orders.

In Clayton v Bant, the couple was married in 2007 in a Sharia Court. The wife was an Australian citizen who visited frequently and the husband was a citizen of the United Arab Emirates and the couple had property both in Australia, UAE and around the world. They also had children.

In 2013, the wife commenced proceedings in the Family Court of Australia seeking spousal maintenance and property settlement orders. Subsequently, the husband commenced proceedings in Dubai, seeking a divorce and the extinguishment of all the wife’s rights to alimony. The wife elected not to participate in the proceeding in this jurisdiction. The Dubai Court granted the husband an “irrevocable fault-based divorce” and ordered the wife to pay AED 100,000 plus costs.

The husband then applied to the Family Court to permanently stay the Australian family law proceeding on the basis that the wife should be prevented from pursuing her claim in Australia as the wife could have sought a division of assets or maintenance in the Dubai proceeding. His application to stop the proceedings was rejected by the Family Court. He appealed and the appeal went to the High Court.

The Decision of the High Court

The High Court unanimously allowed the appeal, finding that the legal right to seek orders for property settlement and spousal maintenance could only be extinguished by a court making orders pursuant to the Australian Family Law Act. This clarified the stance that res judicata would only operate with respect to matters decided in the relevant jurisdiction. In this case, the court in Dubai did not have legislative jurisdiction to make orders in relation to property settlement matters outside of the UAE.

The High Court in Clayton v Bant distinguished the case In the Marriage of Caddy & Miller (1986) 84 FLR 169, where it was held that the wife was prevented from asserting her rights in an Australian Court. This was due to prior orders had been made by the Supreme Court of California which had the jurisdiction to give final orders on property settlement matters regarding real property in Australia.

Final Thoughts on Res Judicata

In Clayton v Band the High Court found against the husband’s application to permanently stay proceedings in the Family Court. The case is a timely reminder of the complexity of litigation and the importance of ‘giving it your best’ the first time around as you may be barred from a second chance.

Notably this case also highlights the need to seek legal advice where relationships exist in multiple countries. Complexities arise when matters can be heard, or are being heard in multiple jurisdictions, and this will determine the operation of res judicata.

Conclusion

Recent clarification of the res judicata doctrine is an important reminder of how necessary obtaining quality legal representation is. At Etheringtons Solicitors, we have a highly experienced and strategic team who will work with you to achieve a desirable outcome in Family Law matters. If you are concerned about your property settlement or divorce, please do not hesitate to get in touch with our office by calling 02 9963 9800 or via our contact page.

Interim orders and interim proceedings in Family Law

Interim orders and interim proceedings in Family Law

Court orders are the legally binding declarations made by judges which fulfil the purpose of resolving a dispute and outlining the obligations which each party must perform. Family Law proceedings are often quite lengthy, with most parties waiting at years for a final hearing, so interim orders ensure that the needs of all the parties are met in a timely manner. These delays make it essential that parties seek legal assistance when applying for interim orders so that the appropriate care and diligence can be taken in preparing and presenting their case.

What are Interim Orders?

Interim orders are temporary orders which are put into place until final orders are made by the Court, which brings the matter to an end. Judges determine interim applications based on the facts and circumstances of each case which is derived from the material filed by each party.

In Family Law matters, interim orders may relate to issues such as parenting or financial matters in separation. In relation to parenting orders, the court must consider the best interests of the child. An interim order may provide families with a sense of stability. In relation to financial orders, an interim order may provide the basis as to which of their properties they are permitted to use or sell while the matter is ongoing. Other common terms pertaining to interim orders in family law include:

  • Allocation of parental responsibility,
  • Living and communication arrangements for children,
  • Instructions to attend upon a family consultant to obtain a family report
  • Instructions for a party to undergo drug or alcohol testing, or
  • The appointment of an independent children’s lawyer (ICL), as necessary.

Interim orders differ from final orders which conclude the proceedings, as well as consent orders which arise out of an agreement between the parties. Final orders are not necessarily irrevocable, as both parties in family law proceedings may have the right to set aside those orders or apply for a change to the orders in the event of a substantial change in circumstances.

Applying for Interim Orders

Each Family Law proceeding commences with the filing of an initiating application. One party must file that initiating application and the other party files a response to that application. This will set out the interim and final orders you are asking the court to make. Generally you will be unable to file for interim orders until you have filed an application for final orders. These applications all need to make it clear to the court what orders you are seeking and the evidence to support them. Any person who is concerned with the care, welfare and development of children can apply for interim parenting orders.

For financial matters in a divorce, either party to the marriage can apply within 12 months of the divorce order taking effect and for financial matters when a de facto relationship breaks down, either party to the relationship may apply within 2 years of the breakdown of the relationship. There are various exceptions in filing out of time, and we strongly advise that you seek legal advice in the event you are faced with this issue.

Case Study: Relocation of Children

Many family law matters that appear in interim hearings involve the relocation of children by one parent before divorce or settlement proceedings are finalised. As reinforced in the recent case of Brant v Brant [2021] FamCA 91, interim orders can be made to undo a parent’s attempt to relocate children before a final hearing and enforce the best interests of the child and shared parental responsibility. In that case, the mother had relocated her two children and enrolled one child in a new school without consultation or consent from the father. The father then sought an interim order for the mother and children to return to the area, offering exclusive occupancy of the matrimonial home and payment of child support to facilitate this arrangement. The Court found that the relocation may have had an adverse impact on the meaningful relationship the children have with their father, and that the relocation should be temporarily reversed until final orders could be made. It is important to note however that where there is an interim hearing regarding children, the overriding consideration of the Family Court is determining what is in the best interests of the children.

Navigating a separation or divorce can be a highly stressful and emotional time for you and your family. At Etheringtons we provide a compassionate and skilled approach to family law matters. If you need further advice or assistance regarding interim orders or other family law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

Why Binding Financial Agreements are not DIY

Why Binding Financial Agreements are not DIY

The courts have reaffirmed the importance of seeking independent legal advice and assistance regarding the execution of Binding Financial Agreements (BFA) or other property arrangements when planning for you and your family. The Family Law Act 1975 (Cth) sets out very strict requirements for a BFA to be valid and enforceable, and it is often the case that informal agreements and one’s executed overseas will not be recognised by Australian courts.

A BFA when executed correctly, can allow for certainty, trust, and peace of mind in a relationship. If you are wanting to enter into a financial agreement with your partner, or to understand if your current agreement is valid, it is crucial that you take appropriate caution and seek suitable legal advice.

What is a Binding Financial Agreement (BFA)?

A BFA is a legally binding document which sets out what would happen to the couple’s finances and property, should the marriage or de facto relationship break down resulting in separation or divorce. It allows a couple to plan their future rights and responsibilities, before entering a marriage or even after, in the event of a substantial financial change. A BFA is not lodged with a court, but rather acts as a private contract between the parties.

Importantly, a BFA can protect assets including cash, property, superannuation or inheritances and are predominantly used for setting out the financial arrangements of the couple. However, a BFA does not cover child custody arrangements, nor child support payments. A more extensive discussion of which matters can be dealt with in a BFA can be found in our previous blog article about constructing, obtaining and setting aside Prenuptial Agreements.

BFAs can be set aside where:

  • There have been instances of non-disclosure of assets or financial resources.
  • The BFA does not make any provision for children or if there was an adverse change in the welfare of the children so the agreement would cause hardship.
  • The contents of the agreement were not just and equitable.
  • Additionally, as discussed in a previous blog article, the High Court will not enforce any BFAs which have been entered into arising from unconscionable conduct, especially where this conduct is a consequence of a significant power imbalance between the parties.

The Family Law Act 1975 (Cth)

The Family Law Act is the legislation which governs BFAs. It allows parties to enter into these agreements before or during a marriage, or after a divorce. Under this Act, a BFA must be in writing, have been signed by both parties, and make specific reference to the section of the Act it is made under.

Recent case: Akhtar & Gaber (No. 2) [2021] FamCAFC 28

An important recent case demonstrated that marriage agreements which do not comply with the Family Law Act’s requirements for a financial agreement are not binding. In the case of Akhtar & Gaber (No. 2), the Appeal Division of the Family Court of Australia dismissed the appeal which aimed to oust the jurisdiction of the court to make orders relating to property interests and to uphold the terms of the marriage agreement between the parties made in another country (or jurisdiction).

The marriage agreement between Akhtar and Gaber was not a recognised BFA as it did not comply with the strict requirements of the Act. It was therefore not enforceable and did not oust the jurisdiction of the court for determining proprietary interests. This means that, even if the marriage agreement was binding in another country, it does not effectively operate as a BFA in Australia. The division of property between the parties was therefore to be determined in accordance with s 79 of the Family Law Act.

Why obtain our legal assistance regarding your Binding Financial Agreement?

As demonstrated in Akhtar & Gaber (No. 2), it is very important that your BFA meets the requirements set out in the Family Law Act. BFAs which are incorrectly drafted may be deemed invalid or set aside, but engaging an experienced solicitor will assist in this process.

Additionally, for a financial agreement to be binding, before it can be signed by both parties:

  • Each party must have received independent legal advice regarding the effect of the agreement on the rights of that party and the advantages and disadvantages of the agreement, at the time that the advice was provided to the party,
  • Each party must have received a signed statement from a legal practitioner as authority that this advice has been provided, and
  • Each party must have received a copy of the equivalent signed statement of their spouse or intended spouse.

If you need further advice or assistance regarding BFAs or other family law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact page.

Unpacking the Family Court Structural Reforms

Unpacking the Family Court Structural Reforms

The government has introduced the Federal Circuit and Family Court of Australia Bill 2019 in order to structurally reform the Federal Circuit Court and Family Court of Australia, both of which currently have responsibility for family law matters. This merger has been proposed to help reduce delays and increasing backlogs in the family law courts leading to greater efficiency in the way family law matters are dealt with in Australia. This hotly debated reform passed the lower house late last year (December 2020) despite much opposition. In this blog, we review the proposed court merger and other changes under this bill.

The Court Merger

The Federal Circuit and Family Court of Australia Bill 2019 aims to bring the Federal Circuit Court of Australia and the Family Court of Australia together into an overarching, unified administrative structure to be known as the Federal Circuit and Family Court of Australia (FCFC). These structural reforms facilitated by the Bill purport to create a framework in the Federal Circuit and Family Court of Australia for common leadership, common management and a comprehensive and consistent internal case management approach.

There is a clear emphasis on efficiency, evident under section 5 of the Bill which states that the object of this legislative instrument is:

(a)  to ensure that justice is delivered by federal courts effectively and efficiently; and

(b)  to provide for just outcomes, in particular, in family law or child support proceedings; and

(c)  to provide a framework to facilitate cooperation between the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) with the aim of ensuring:

(i)  common rules of court and forms; and

(ii)  common practices and procedures; and

(iii)  common approaches to case management.

In a Media Release from the office of the Attorney-General, Christian Porter has said that ‘bringing the courts together under one amalgamated structure creates a single point of entry for families who will no longer be bounced around between different courts – an issue that occurs too often in the current system and can lead to lengthy delays for families because matters have to begin again.’ However, it is worth noting that some legal experts, while acknowledging the difficulties presented by a duplicate court system, worry that the merger will be an abolition of the specialist Family Court of Australia.

Other Changes

The legislation also requires that judges hearing family law matters in either Division will need to satisfy additional appointment criteria to guarantee they are suitable to dealing with family law matters, including family violence. This is due to the fact that many matters that come before the family court tend to have elements of family violence, therefore family law judges will also need to have a strong understanding of family violence and its implications for the safety of women and children.

In a further Media Release from the office of the Attorney-General, it was noted that the Government has provided $4 million in funding to the federal courts to review court rules and assist with implementing the reforms as well as a $3.7 million boost to court resources.

Get Legal Advice

Navigating the family law system can be a confusing and emotionally exhausting task. Our dedicated family law solicitors are ready and willing to assist you with your parenting or family law concerns. If you would like further information, please do not hesitate to contact one of our experienced solicitors on 9963 9800 or via our contact form. For more articles on family and other areas of law, see our blog here.

Understanding Family Law Financial Settlement Documents

Understanding Family Law Financial Settlement Documents

When ex-partners come to an understanding in terms of settling financial matters upon separation, there are two key ways to finalise this agreement in a legally binding way. These are ‘consent orders’ and a ‘financial agreement’. Not many people are aware that it is important to finalise family law financial matters in a legally binding way, as informal agreements can easily collapse and a court application can come at any time and many years following the breakdown of the relationship. In this blog, we review the two most common ways of finalising family law financial agreements and considerations you should take into account when deciding which avenue is most appropriate for you.

Consent orders

A consent order is a written agreement that is approved by a court. It can cover many family law matters, such as parenting arrangements for children as well as financial arrangements such as property and maintenance. Consent orders are lodged with the Family Court and officially stamped as a court order. The Court must be satisfied that the consent orders are just and equitable and/or in the best interests of the child/children (if applicable) before they make a consent order.

In order to obtain the stamped court order, two documents are required to be filed. These are the Application for Consent Orders and the proposed orders. The Application will contain important details of the parties, such as assets, liabilities, income and super. The proposed orders should set out the orders that the parties have agreed on and are asking the Court to make.

Financial agreements

A financial agreement is not lodged with a court and is rather a private contract agreed on between the parties. In order to ensure the agreement is legally binding and enforceable, both parties are required to receive independent legal advice from different legal professionals about the consequences of signing the agreement.

Considerations when deciding which agreement is best for you

When deciding which avenue is more appropriate for your circumstances, there are a variety of considerations to take into account. Some of these include:

  • Consent orders can cover matters pertaining to spousal maintenance, however a financial agreement may be a safer option to guard against any applications to prolong or increase maintenance. It is important to keep in mind that you are not confined to either option to settle your financial arrangements and a hybrid model could allow you to finalise your property settlement while a financial agreement could settle your spousal maintenance.
  • A financial agreement is not subject to judicial scrutiny and is a private agreement. However, for a court to approve consent orders, it must agree that the orders are just and equitable. For financial agreements, any deal can be struck no matter how unfair it may be perceived.
  • Often consent orders can take a long period of time to be approved, however financial agreements come into effect essentially upon the signing of the agreement by each party.
  • If you are seeking property orders, you should read and consider sections 75 factors outlined in the Family Law Act 1975. To learn more about section 75 factors, see our blog here. Some of these factors include:
    • How the length of the marriage affected the earning capacity of the party seeking maintenance
    • The age of any children of the marriage/relationship
    • The age and state of health of each of the parties
    • The income, property, finances and ability to earn an income of each party

Get Legal Advice

An experienced family law professional will be able to assist you with determining which family law settlement document is most appropriate for you and your circumstances. If you would like further information, please do not hesitate to contact one of our experienced solicitors on 9963 9800 or via our contact form. For more articles on family and other areas of law, see our blog here.