Jul 3, 2020 | Family Law
Can You Apply for a Divorce?
To be eligible to apply for a divorce, you or your spouse must have been separated and living separately for a minimum of twelve (12) months, with no reasonable likelihood of resuming married life.
What If you are separated but Still Living Together?
It is possible to be separated even if you are still living together. This can occur for a variety of reasons, often for the sake of the children. If you live under the same roof during all of or part of the minimum twelve month separation period, you will need to file an Affidavit (a sworn statement) from yourself and at least one witness.
What Should the Affidavit Contain?
Your Affidavit should address changes that have occurred between you and your spouse before and after separation. This is to show that even though you’re living in the same residence, your relationship doesn’t reflect a marriage. You can include the following matters in the Affidavit:
- Do you have separate sleeping arrangements?
- Has the sexual relationship ceased?
- Have you changed the domestic services you perform for each other since separation?
- Do you have separate financial arrangements such as separate bank accounts?
- Have you stopped attending social functions and activities together?
- Why are you still living separated under one roof? For example, financial pressures, stability for children of the marriage.
- What arrangements are in place for children under the age of 18?
- Have you informed any government departments such as the Department of Human Services – Child Support of your separation?
- Do you think there will be a change to the living arrangements? If so, when will this occur?
Filing the Affidavits
The Affidavits are filed with the Divorce Application, Marriage Certificate, documents establishing citizenship (unless a citizen by birth) or for non-citizens an Affidavit establishing that one of the parties is domiciled and/or ordinarily resident in Australia.
After the application for divorce is filed, the other side may file a Response to Divorce within 28 days, if they disagree with any of the facts set out in the Affidavit and Application for Divorce. The court will process the Application and arrange a hearing date thereafter.
Contact us
If you and your partner are going through a separation or divorce we recommend seeking legal advice to ensure the best outcome. We have experienced family law solicitors who can provide advice and draft Affidavits. If you would like more information on how we can assist you with your family law matter, do not hesitate to contact Etheringtons Family Lawyers in North Sydney on 9963 9800 or via the contact form here.
Jul 1, 2020 | Family Law, Litigation and Court
What is a Subpoena
A subpoena is a legal document issued by the Court, at the request of a party involved in court proceedings which involves requiring the subpoenaed party to either produce documents or give evidence at a hearing.
Subpoenas in the Family Court
In family law matters, proceedings can be held either in the Federal Circuit Court of Australia or the Family Court of Australia. During these proceedings, it may be necessary for a party to issue a subpoena for relevant information to be provided in Court. Ordinarily, it may be necessary to issue more than one subpoena in Court proceedings.
Subpoenas are generally issued when one party fails to provide all of the necessary documents to the court. Subpoenas are often issued to banks or superannuation funds for purposes of seeking production of financial material related to the other party. In parenting matters, an Independent Children’s Lawyer, a lawyer who acts for the children in parenting matters, will often issue subpoenas. This may be to the children’s schools and doctor if health issues have been raised. They may also issue a subpoena to either parent’s doctor, if necessary.
Filing for a Subpoena
In some proceedings, you must seek the court’s approval before issuing a subpoena. This is especially relevant when there are court orders in place or there are less than seven days before a hearing commences. In the Federal Circuit Court, there is a capping of no more than five subpoenas to be issued by each party, unless permission is granted by the Court. There is no restrictions imposed in the Family Court for subpoenas.
If you gain the court’s approval, the filing of the subpoena can proceed as normal. The original subpoena must be filed at the Federal Circuit Court or Family Court registry (depending which jurisdiction the matter is in). You must also file enough copies for one to be served on each party in the proceeding as well as the person or organisation being asked to produce material.
Importantly, the court can refuse the issuance of a subpoena if it finds that the subpoena amounts to a ‘fishing expedition’. That is, the deliberate attempt by one party to search or investigate with the hope of discovering information on the other party. Therefore it is important that when issuing subpoenas in family law, one must ensure that they are seeking information or documentation relevant to the current court proceedings.
Filing fee
A subpoena will incur a filing fee of $55.00 per subpoena.
Serving a Subpoena
Once the subpoena has been filed, it must be personally delivered (served by hand) to the person it is addressed to.
If you are serving a subpoena to a bank or financial institution, a small amount of money must be provided to the subpoenaed party. This is known as ‘conduct money’ for the production of documents. Some banks will charge a set amount, so it is important to find out what the production of documents may cost where possible. You also need to provide a copy of the court’s brochure with the subpoena.
Objecting to a Subpoena
A party is entitled to raise an objection to the issuance of a subpoena. A number of objections which can be raised involve:
- The documents requested are irrelevant
- The documents are privileged
- The terms of the subpoena are vague or non-specific
- Insufficient time given to comply with the subpoena
- Subpoena issued without a ‘legitimate forensic purpose’
- Insufficient conduct money
In order to do so, you have to file a Notice of Objection and the matter will subsequently be listed before the court for determination.
Contact us
If you would like more information on how we can assist you with your family law matter, do not hesitate to contact us on 9963 9800 or via the contact form here.
Jun 30, 2020 | Family Law
The two realms of family law and parental testing often cross paths. It is common for parental testing to be sought in order to settle matters such as child support or parenting proceedings. In this blog, we answer some of the most common questions surrounding parental testing and how these relate to the rules and regulations in family law.
What Happens When Both Parties Agree to DNA Testing?
If both parties agree to DNA testing, then they can arrange for DNA testing to be carried out privately without a court order. However, to ensure that the test results are admissible in court, you must select a DNA testing laboratory which is accredited by the National Association of Testing Authorities and that the testing complies with the requirements of Part IIA of the Family Law Regulations 1984.
What if the One Party Does not agree to DNA Testing?
If one party does not agree to DNA Testing, then either party can apply to the Family Court or Federal Circuit Court for an order for parentage testing under the Family Law Act 1975. This is only possible if you have also sought a Declaration of Parentage.
However, the court only has jurisdiction to make orders relating to parentage if there is a real issue as to the parentage of the child and a substantive issue in relation to the child before the court, such as contact or child support issues.
When is Someone Presumed to be the Father of the Child?
The Family Law Act 1975 provides the relevant basis for circumstances where a person is presumed to be the father of the child:
- The person was married to the child’s mother
- The person cohabited with the child’s mother at any time during the period 44 weeks and 20 weeks before the child’s birth
- The person’s name appears on the child’s birth certificate as the father
- Another court has made a finding of parentage
- The person has executed a document under a law of the Commonwealth, a state or territory of the Commonwealth or prescribed overseas jurisdiction acknowledging he is the father of the child
What Do You Need to Prove for the Court to Order DNA Testing?
If a man is presumed to be the father of a child, by reference to the presumptions set out above, it would be necessary to rebut the presumptions and provide evidence to demonstrate that you have an honest and reasonable belief as to why that person is not the father.
If a man is not presumed to be the father, by reference to the presumptions set out above, it would be necessary to put forward evidence to the court to demonstrate that you have an honest and reasonable belief as to why that person is the father, notwithstanding that the presumptions do not apply.
If you find yourself in a situation where you want to prove or disprove parentage, then it is best to contact a lawyer to ensure that you maximise your prospects of resolving the dispute through DNA testing, either by means of an agreement for testing or by an application to the court for testing to be carried out.
Should I seek Legal Advice?
It is vitally important to be aware of the rules and requirements surrounding parental testing if you believe it is relevant to your family law matter. If you would like more information on how we can assist you with your parental testing matter or if you have any general family law enquiries, do not hesitate to contact one of our experienced family law solicitors on 9963 9800 or via our contact form.
Jun 30, 2020 | Family Law
Following a relationship separation, the Family Law seeks to answer four key questions in order to determine how assets will be divided between the parties who were previously in a marriage or de facto relationship.
1. What is the net asset pool of the parties?
In order to determine the asset pool of the parties for property division, a balance sheet is required, which sets out in detail the assets, liabilities and superannuation of each of the parties. Assets are everything of value, and may include real estate, shares, motor vehicles, furniture etc.
Before commencing property settlement proceedings, both parties are obliged to make full and frank disclosure about their respective financial circumstances. Failure to do so may result in a party being held in contempt of court. This is a serious breach and implications may arise if you do not comply with this duty.
2. What have each of the parties contributed to the net asset pool?
In order to determine what each of the parties contributed to the net asset pool, the law looks to what assets and liabilities each party entered into the relationship with and what each party provided during the relationship, both financial and non-financial.
Contributions may be in the form of income from employment, running a business, money received from a family member in the form of gifts or inheritance, or even compensation payments. Homemaking and parenting contributions are also important to consider.
After assessing both financial and non-financial contributions, if the parties cannot agree, a court will determine each party’s overall level of contribution on a percentage basis.
3. What are the parties’ future needs and how might they need to be adjusted?
When a court has to determine the future needs of each of the parties, this may cause an adjustment to be made to their contribution percentages. The relevant factors in assessing those needs derive from section 75(2) of the Family Law Act 1975 (Cth).
In summary, the future needs of a party may include costs associated with caring for a child, especially where the parties’ contributions in this regard have been in unequal proportions, where one of the parties or children have ongoing health issues which need to be taken into consideration, as well as where there is likely to be income disparity between the parties or even where there is an age difference. Once the contribution percentage is adjusted, this will then be applied to the net asset pool in order to determine the division of property as a dollar figure.
4. Is the outcome fair and equitable?
The final step in a Court’s process is to determine the practical effect of the proposed property settlement and whether it is just and equitable. If it is, the process is concluded. If it is not, an adjustment is normally made to achieve a just and equitable position. For example, an adjustment may be required where one of the parties is the sole carer of the children and is responsible for supporting those children.
Once the dollar amount that each person is to receive is known, the amount is converted into assets that are to be retained by each of the parties. This may involve a deduction of liabilities that would be retained in order to determine if a payment is required.
Contact Us
Property settlement proceedings can be complex. It is imperative that you are aware of all your obligations and entitlements, as well as the process in general.
If you would like further information regarding property division or if you have any general family law enquiries, please do not hesitate to contact Etheringtons Solicitors on 02 9963 9800 or via our contact page.
Jun 28, 2020 | Family Law
Collaborative law is a new approach used to resolve legal disputes, particularly in relation to Family Law. Collaborative law has many benefits of cooperation, mutual outcomes and sustained relationships in comparison to traditional approaches of litigation. Collaborative lawyers are qualified lawyers with training and experience in dispute resolution and facilitation processes. This article will outline the collaborative law approach in family law matters, the benefits of using this new approach, and some cases in which collaborative law may not work for parties.
The Collaborative Law Approach
Collaborative law is where the parties to a dispute and their lawyers sign a Participation Agreement in which they agree to conduct confidential and transparent negotiations to resolve their matter without turning to litigation. Generally, the parties will meet several times to work towards a settlement that meets the beneficial interests of both parties.
The parties must agree not to threaten litigation and the lawyers must not advise the parties to start court proceedings. If an application is made to commence proceedings in a court or tribunal the agreement is terminated and both lawyers must discontinue representing their clients.
Approach Summarised
- The professionals involved in a collaborative law arrangement are bound by professional conduct rules and client confidentiality.
- Parties must act in good faith, provide full disclosure and attempt to reach a resolution.
- Apart from financial disclosure, discussion and documentation will be subject to legal privilege which means they cannot be used in court proceedings. Only where a professional has a statutory obligation to make a report (for example where a child is at risk) will confidentiality and privilege be overridden.
- Negotiations are conducted directly between the parties and their lawyers – opinions and ideas are expressed face to face rather than using the lawyer as an intermediary for communication.
- Correspondence between the parties’ lawyers is limited – being replaced by minutes documenting the discussions and decisions made during the meetings.
- Once a settlement is negotiated, the agreement will be legally documented for the parties to approve and sign.
- Litigation must not be threatened nor commenced otherwise the agreement will be terminated and the parties will need to find alternate representation. This is a considerable incentive to keep parties focused on the issues in dispute and working towards a resolution.
Collaborative Law in Family Matters
Collaborative law can be used for a range of legal matters including disputes between businesses, neighbours and in family law.
The process is particularly suited to family law matters as the conciliatory approach has potential to preserve or protect the relationship between the parties. Clearly, this is beneficial where children are involved, given that the parents will need to have ongoing contact and discussions regarding the welfare and care of their children.
An overriding benefit of the Participation Agreement is that the parties are making a commitment to resolve the dispute without litigation. This enables the parties to ‘steer’ towards a mutually beneficial resolution and choose their time frame rather than have directions and hearing dates set by a court or tribunal. This has the potential to significantly minimise cost and delay, and of course, the stress and anxiety of being involved in court proceedings.
Clients and their lawyers set the agenda for each meeting and the lawyers liaise with each other regarding the agreed procedural aspects for running the meetings.
Benefits of using the Collaborative Law Approach
By giving the parties collective control over how their matter progresses, settlements may be reached which are less restrictive than what might be ordered by a court. Parties are not confined to technical legal issues and can therefore agree on more flexible resolutions that include non-legal matters.
Since collaborative law is non-adversarial, there is no winner or loser. This allows the parties to maintain dignity and respect for each other. Although each party must give full disclosure of facts relating to the issues in dispute, the discussions and meetings are family-focused with a facilitative approach. The parties must involve themselves in a concerted team effort to settle the dispute.
If necessary, the parties can agree to involve an impartial coach or facilitator to assist in reducing conflict or a professional (accountant, valuer, child specialist) to provide an expert opinion.
When might collaborative law not work?
Whilst collaborative law is open to all family matters, it may not be suitable if one or both parties are antagonistic, violent, have a drug or alcohol dependency or have severe psychological disorders. Safety issues and significant trust concerns will also be a barrier to effective negotiations.
The parties must be fully committed and not see the collaborative approach as a way around disclosure obligations.
Contact Us
Collaborative law may not be appropriate for every legal dispute but is certainly worth considering as an alternative way to resolve your family law issues.
Lawyers engaging in the collaborative law process should be suitably trained and committed. If the Participation Agreement is terminated both lawyers may no longer act for the parties who will need to find alternate representation.
If you or someone you know wants more information or needs help or advice, please contact Etheringtons Solicitors on (02) 9963 9800 or contact us here.
Jun 17, 2020 | Family Law, General Advice
With the recent announcement of SpaceX CEO Elon Musk and Canadian singer ‘Grimes’ naming their son “X Æ A-12”, many people are left confused regarding the legal constraints for naming children. It is common for celebrities and public figures to push societal bounds by naming their children unconventional names, but how far can one go until the name is rejected by the law?
Elon Musk and Grimes have changed ‘X Æ A-12’ to ‘X Æ A-Xii’ in an attempt to comply with Californian laws. However, despite the slight change, it is likely the name will still face issues in California as you can only utilise the 26 characters of the alphabet in a child’s name (excluding apostrophes for names such as O’Neil). Such restrictions call into question what would happen if such a situation were to occur in NSW. This article will address what you can and cannot name a child pursuant to NSW naming laws.
Child Naming Laws in NSW
Once a child is born, the parents must register within 60 days the child’s name with the NSW Registrar. Under the Births, Deaths and Marriages Registration Act (‘the Act’), it is prohibited to give a child a name that:
- is obscene or offensive;
- is too long;
- includes symbols without phonetic significance;
- resembles an official title or rank, such as judge, saint, king, prince; or
- is contrary to the public interest for some other reason.
Specific naming restrictions include:
- The maximum length of a name, including spaces that can be registered is 50 characters each for the family name, first name and any other middle names.
- Names cannot contain numbers or symbols, which includes roman numerals, prefixes or suffixes, such as the name “Anne Marie the 1st!”.
- It is also not possible to register a name which bear a resemblance to a title, such as “Duke of Edinburgh Smith”. However, it is possible to register a name which has a title as a name such as “Edward Duke Smith”.
The state will not register a prohibited name, and can assign a name to a child if the name is a prohibited name, or where each parent lodges a birth registration statement because they are unable to agree on the child’s name.
Changing your child’s name following separation
Changing the surname of both child and spouse has been customary at marriage. Many women may choose to revert to their maiden name upon separation or divorce, however both parents must usually provide consent to change their child’s surname. An agreement can be reached privately or through alternative dispute resolution. The child must also consent to the change of name, unless they are unable to understand the meaning and implications of the change of name.
However, one parent can apply alone to change their child’s name if:
- they are the only parent named on the child’s birth certificate; or
- the other parent has passed away; or
- a court has approved the new name for the child.
Changing Names
Names recognise your individual identity and are a significant part of your personal brand. If you are not happy with your name, in NSW you can only change your name once in a 12-month period, and three times in your lifetime.
You may apply to change your name if you are an adult (over 18 years old) and:
- your birth is registered in NSW; or
- you were born overseas and have been a resident in NSW for 3 years when you apply for the name change; or
- your birth is not registered in NSW and a protection order has been made to protect you and/or your children from domestic violence.
Further Information
It is important to be aware of the laws surrounding name changes in NSW if you are considering changing your name or your child’s name. If you would like more information on how we can assist you with your matter, do not hesitate to contact us on 9963 9800 or via our contact form.
