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HOW TO SETTLE FAMILY LAW DISPUTES?

Binding Financial Agreement, Blog & Articles, Consent Order, Family Court, Family Disputes, Tang Law, Violence Restraining Order

Part I: Consent Orders.

In 2015, the Family Court of Western Australia received over 15,000 applications.  The median time for a matter to reach trial is 89 weeks!
It makes logical sense to attempt to settle family law dispute amicably and properly formalise the settlement terms.

 

Importance of Formal Agreement

In the case of Eufrosin & Eufrosin [2014] FamCAFC 191, the wife was ordered to pay her estranged husband a sum of $500,000 following a gambling win despite the fact that the parties had been separated for more than five years and had made informal agreements and distributed the assets accordingly at the time of separation.

This case highlights the importance of finalising any agreement made to avoid claims in the future.

If there is transfer of ownership interest in real estate from one party to the other, this transfer in real property will be exempted from transfer duty if the agreement is formalised properly.  This can be a significant savings.

Two Ways to Formalise Settlement

There are two ways you can finalise the property settlement upon separation by agreement:

  1. Apply to the Family Court for Consent Orders; or
  2. Entering into a Binding Financial Agreement.

This Part I of the article deal with Consent Orders.

What is a Consent Order?

In essence a consent order is a written agreement between both parties that is sealed and affirmed by a court.  Once it is sealed by the Court, the Consent Orders become orders of the Court and are binding on the parties.

In Western Australia, consent orders are made by the Family Court of Western Australia and covers aspects such as property orders, parenting orders and spousal maintenance.

What are the benefits of Consent Orders?

The purpose of Consent Orders is to ensure that agreements between parties are in writing and affirmed by the court in order to avoid further disputes in future.

What Consent Orders can be made by the Court?

For orders related to property settlement and spousal maintenance, the Court must give consideration to whether the orders sort by the parties are just and equitable and will take into account all factors of the relationship such as the contributions of both parties to the relationship and the future needs of each party.

For orders related to parenting arrangements the Court will consider whether the orders made are proper and appropriate arrangements for the child and whether the orders are in the best interests of the child.

What is the Time Limit in applying for Consent Orders?

Consent orders may be filled any time after separation or within one (1) year after a divorce order has taken effect or two (2) years for breakdowns in a de facto relationship. If the parties have exceeded these time frames leave of the court may be obtained.

How long does it take for the Court to grant the Consent Orders?

Generally speaking, it takes around 6 weeks for the Family Court to review and seal the consent orders provided there are no complications.

There may be situations where the Court requires further information from the parties.  This can cause delays in the application. Moreover, the Court may require the parties to attend hearing for further clarification.

Proper preparation of the Consent Orders can significantly reduce such delays and complications.

Before entering into Consent Orders

It is important that prior to entering into the Consent Orders you fully understand your rights and your entitlements, as well as the legal ramifications of entering into the consent orders.  Do not agree to settle until you know, legally, what you are entitled to receive or keep.

You are entitled to make an informed decision as to whether or not to enter into the consent orders.

For more information regarding consent orders, please contact our lawyers at TANG LAW.

ABOUT THE WRITER

Kelvin Tang has over 14 years’ experience practising law in Western Australia. He is the founder and Principal Partner of Tang Law based in Perth, Western Australia. Kelvin is a Registered Migration Agent (MARN: 1386452) and has extensive experience in providing family law advice to clients, making divorce applications and applying for Consent Order. Kelvin is able to offer his clients clear and practical advice in relation to children’s disputes, property settlements between married and de-facto couples, spousal maintenance and child support.

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HOW RESTRAINING ORDERS CAN PROTECT YOU FROM ACTS OF VIOLENCE AND ABUSE

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Australia has seen a rise of domestic violence over the past number of years. However, victims of violence may be able to receive protection by way of a restraining order.

If you feel threatened, intimidated or are being harassed by another person, then you should consider applying for a restraining order, especially if you are concerned that such acts will continue.  There are two types of restraining orders that you can apply for: Violence Restraining Order and Misconduct Restraining Order.

What is a Violence Restraining Order (VRO)?

A Violence Restraining Order (VRO) is an order made by the Magistrates Court to restrain a person from committing an act of abuse, causing fear, or intimidation to another person. There are two types of VROs,:

  1. a VRO against a person with whom you are in a family or domestic relationship; or
  2. a VRO that is against a person with whom you are not in a family or domestic relationship.

The purpose of a VRO is to protect you against a person who has or is committing acts of abuse and/or is intimidating towards you. This can include stopping a person from damaging your property.  You can apply for a VRO if the person has committed an act of abuse towards you or if you fear that the person will commit an act of abuse.

What is an Act of Abuse?

An act of abuse includes any assault, whether it causes injury or not, any act that causes an injury, kidnapping, stalking, or threats to do any of the things mentioned. An act of abuse can also include damage to your property and continuous behaviour that is frightening, or emotionally abusive to you.

What will a Violence Restraining Order (VRO) do?

A restraining order acts to bind an offender to certain conditions. For example, a VRO condition may require that a person not come near your home or place of work, or within a certain distance of you. They may not even be allowed to call or message you, or call or message your friends. The conditions set will depend on your individual situation, and the VRO will be worded accordingly.

A VRO may be in place for up to two (2) years. If a person disobeys or breaches the terms of the restraining order, they may be fined or face imprisonment.

How do I obtain a Violence Restraining Order (VRO)?

In Western Australia, you can obtain a VRO through an application to the Magistrates Court.

In order to obtain a VRO, you will be required to give the Court verbal evidence or a written affidavit, which is a written statement confirmed by oath or affirmation. The respondent to the VRO application (the person you are seeking protection against) can either consent to it or lodge an objection.

There will be a hearing if the respondent lodges an objection, which you will be required to attend. The Court will then decide on whether or not to serve a Final Violence Restraining Order, and if so, the conditions of the order.

If you require an interpreter due to language difficulties, the Court can appoint one for you free of charge.

What is a Misconduct Restraining Order (MRO)?

A Misconduct Restraining Order (MRO) is an order made by the Court to stop a person from behaving in an intimidating or offensive way towards you. This can include stopping a person who is causing damage to your property or acting in a way that is breaching the peace. However, unlike a VRO, a MRO does not apply to someone you are in a family or domestic relationship with.

While an application for a MRO is similar to that of a VRO, an MRO is considered a lessor order. A MRO may be in place for up to one (1) year.

Who can apply for a Restraining Order?

You can apply for a restraining order if you are seeking protection against a person. If you are over the age of 18, you can apply to the Magistrates Court for a restraining order. If you are under the age of 18, a parent, guardian or an adult can apply on your behalf.

What can Tang Law do?

At Tang Law, we know that this may be a difficult and troubling time for you, and we want to make it as simple and easy as we can for you.

We will be with you, every step of the way from your application to the Court, through to getting the restraining order. We can provide legal advice on the best way to approach the situation and how your application for a restraining order can be successfully made.

Please feel free to contact our solicitors today.

ABOUT THE WRITER

Kelvin Tang has over 14 years’ experience practising law in Western Australia. He is the founder and Principal Partner of Tang Law based in Perth, Western Australia. Kelvin is a Registered Migration Agent (MARN: 1386452) and has extensive experience in providing family law advice to clients, making divorce applications and applying for Consent Order. Kelvin is able to offer his clients clear and practical advice in relation to children’s disputes, property settlements between married and de-facto couples, spousal maintenance and child support.

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HOW TO DEMONSTRATE “BUSINESS SKILLS” FOR AUSTRALIAN BUSINESS MIGRATION PURPOSE

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Basic Requirements

To qualify for business migration, generally speaking, you must be able to demonstrate that you have the requisite business skills.
Under the migration policies, the Immigration Department will assess you on:
  1. Your overall successful business career; and
  2. Your direct and continuous management involvement

Overall Successful Business Career

The migration policy intention is to measure the business performance of your entire business career, including any business activities that pre-date the assessment period.  Be aware that the Department may assess ALL businesses that you have had a management role.

Factors considered by the Department in conducting the assessment include:

  1. Financial position of your business – whether it has been making trading profits or losses.
  2. General trend of your business revenue – is it upward or downward trend.
  3. Whether the business likely to be successful in the longer term, looking at the potential to increase profitability, market share, business growth and/or competitive advantage.
  4. If your business recorded losses, you must provide details of relevant factors leading to the loss, such as:
  5. External economic trends
  6. Fall in property values
  7. Drop in world commodity prices
  8. Changes in taxation regime
  9. Recent acquisition of assets

You will NOT pass this criterion if your business has suffered recent trading losses and the business is consideredunlikely to be successful in the longer term due to your role and decision-making in the business.

Direct and Continuous Management Involvement

You are required to demonstrate that they have had direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business.

Direct involvement in management

Direct involvement requires an applicant to be in charge of managing the whole or part of a business according to the size of the business.

If the main business is a small business with no or few employees it is expected that the applicant has a dominant role and responsibility for managing the business.

In the case of a larger business, you may not hold responsibility for a principal or dominant role, but it is necessary that you have been directly involved in managing at least one facet of a main business.  If there is more than one person who might have responsibility for managing the business it is necessary to define the management role of the applicant.

“Management” involves planning, organising, directing and controlling the resources of the business.

  • “Planning” includes setting the goals of the business, developing strategies for achieving the goals and determining the standards or quality.
  • “Organising” refers to the way the business allocates resources, assigns tasks, and goes about meeting its goals. In the process of organising, managers arrange a framework that links all workers, tasks and resources together so the business goals can be achieved.
  • “Directing” is supervising or leading workers to accomplish the goals of the business.
  • “Controlling” is the process of determining if the goals and objectives of the business are being met, setting performance standards for workers and monitoring their performance against standards.

Continuous involvement from day to day

You are expected to consistently spend a significant portion of your time managing the business on an ongoing basis from day to day. For a business to be considered a ‘main business’ it is intended that you would be involved in actively exercising your management role:

  • without any significant or frequent breaks in their management involvement
  • without any significant or frequent gaps in the activities of the business and
  • on any ordinary business day.

Decisions affecting the overall direction and performance of the business

You need to demonstrate that you were involved in making decisions affecting the overall direction and performance of the business. For example:

  • Establishing the business goals, market position, and competitive edge.
  • Method of sales distributions
  • Determining or creating business products and services
  • Setting up management structure and operational plan for efficient monitoring
  • Solving problems with complaints
  • Contingency planning for unforeseen circumstances

Assessment by the Department

If the Department has any doubt in relation to your management, additional scrutiny will be undertaken to determine the true nature of your management role in the business.

The case officers in charge of handling your application may:

  • refuse the visa
  • request further evidence
  • arrange an interview for you (in person or by phone). An interview may test whether you appear to have a full understanding of how the business operates, the duties you undertakes and the level of responsibility held.
  • A site visit may also be undertaken.

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ABOUT THE WRITER

Kelvin Tang has close to 20 years’ experience practising law in Australia. He is the founder and Principal Partner of Tang Law based in Perth, Western Australia. Kelvin is a Registered Migration Agent (MARN: 1386452) and has extensive experience in providing migration advice to clients, advising on “Eligible Businesses” within the definition of the Migration Regulations, assisting migrants (investor of the business) with satisfying migration requirements, making visa applications and appealing cancelled or refused visas in the Federal Court of Australia, Administrative Appeals Tribunal and Migration Review Tribunal. Kelvin also has extensive experience in civil litigation, commercial and corporate law matters.

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4 TIPS TO IMPROVE YOUR CHANCE IN MIGRATION APPEAL

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In 2015-16: Over 60,000 visas were cancelled. 18,929 applications for review were made to Administrative Appeal Tribunal (AAT)

INTRODUCTION

Substantial number of visas were refused or cancelled every year.  Not every applicant has a right to appeal, and for those who have a right to appeal, the application MUST be lodged within the time limit specified by the Migration Act.

Here are 4 tips on how to improve your chance of success.

TIP 1 – BE PREPARED

The strategy is simple – prepare, prepare and prepare!

You do not lodge an appeal with just a “hope” that you will succeed.

You need to prepare all relevant and supporting materials for the Tribunal. Be prepared to do the groundwork in putting together your papers and materials.  Be prepared to put in the effort.

TIP 2 – GIVE THE TRIBUNAL WHAT THEY ARE LOOKING FOR

To stand a chance of succeeding, you need to know what the Tribunal is looking for.  You need to give them what they are looking for.  The Tribunal will be looking for:

  1. The relevant legal principles that apply to your case;
  2. The facts  surrounding your situation;
  3. Reliable evidence that can verify the “facts”; and
  4. Past cases with similar legal principles and facts.

Begin with knowing the reasons as to why Department of Immigration and Border Protection (DIBP) refused or cancelled your visa.  If you know the reasons, then you will be able to obtain supporting evidence and prepare your submissions to convince the Tribunal that DIBP was wrong in refusing or cancelling your visa.

TIP 3 – OBTAIN RELIABLE EVIDENCE

The Tribunal will want to verify your statements and your “facts”.  The Tribunal wants to know whether you are telling the truth.

You need to take the necessary steps to find, obtain and prepare reliable evidence to support your appeal.

Evidence is more convincing when it is provided by a third person or an independent expert.

TIP 4 – FIND SUCCESSFUL PAST CASES

One of the best ways to convince the Tribunal is to find successful past cases of the Tribunal similar to your situation.  If you are able to draw analogies to your own appeal with the support of this successful past cases, you can substantially improve your chance.

Writer – Kelvin Tang

Kelvin has close to 20 years’ experience practising law in Australia. He is the founder and Principal Partner of Tang Law based in Perth, Western Australia. Kelvin is a Registered Migration Agent (MARN: 1386452) and has extensive experience in providing migration advice to clients, advising on “Eligible Businesses” within the definition of the Migration Regulations, assisting migrants (investor of the business) with satisfying migration requirements, making visa applications and appealing cancelled or refused visas in the Federal Court of Australia, Administrative Appeals Tribunal and Migration Review Tribunal. Kelvin also has extensive experience in civil litigation, commercial and corporate law matters.

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MIGRATION LAWYER VS MIGRATION AGENT: PROFESSIONALS ON AUSTRALIAN MIGRATION

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In Australia, there are two (2) types of professional migration consultants:

1. A lawyer who holds a practicing certificate issued by the Legal Practice Board of the State and practice in the area of migration law (“Migration Lawyer”); and

2. A migration agent who is registered with the Office of the Migration Agents Registration Authority (MARA) (“Migration Agent”).Only a Migration Lawyer or a Migration Agent can provide migration related services and advice to clients requiring migration assistance. In helping you decide which type of migration consultant to choose, here are the differences between Migration Lawyer and Migration Agent:

1.              Qualifying Process

Migration agents are required to:

(a)           Complete a 6 month training course and past the exams; and

(b)          Apply to be registered with the Office of the Migration Agents Registration (“OMARA”).

Migration lawyers are required to:

(a)           Complete at least a Bachelor of Laws degree (which requires minimum of 3 years);

(b)          Undertake practical legal training and work experience with a law firm;

(c)           Complete College of Law training program and exams;

(d)          Apply to the Supreme Court for admission as a lawyer; and

(e)          Apply to the Legal Practice Board of the State for a Practicing Certificate.

Whilst both are qualified to provide migration services, Migration Lawyer requires a much longer process as the legal profession is one of the most traditional profession in Australia and the requirements to become a lawyer are very strict.

Under the Legal Profession Act, no person can hold himself or herself out as a lawyer unless he or she holds a practicing certificate.

2.              Level of Knowledge and Skills in Law

Provision of migration services is in actual fact provision of legal services in migration related matters.   Australia migration regime is comprised of the Migration Act 1958, Migration Regulations 1994, and being a Common Law country, we are bound by past decisions of tribunals and Courts on cases initiated under these two (2) legislation.

Migration Lawyer will more likely have deeper understanding of the migration regime as lawyers are trained to apply the laws.

3.              You can claim Legal Professional Privilege

While a migration agent is required to keep communication between themselves and a client confidential, only a lawyer can claim legal professional privilege, which if applicable, will keep the communications between a lawyer and a client entirely confidential, including against a subpoena from a Court and are usually protected from disclosure.

4.              Standards of conduct

Migration Agents are subject to the OMARA code of conduct.

Lawyers are subject to the Legal Profession Act, the Legal Professional Conduct Rules and the Law Society Ethical and Practice Guidelines.

These codes of conduct are created for the protection of clients and ensuring the profession integrity is upheld.

In comparison between the two (2) standards, lawyers have a much comprehensive and stricter code of conduct.  Invariably the reason being the legal profession has been around for over a hundred years.

5.              Extend of Service

 

Migration service does not only encompass the services of advising and applying for a visa.  It also includes appealing to the tribunals and Courts for review of migration decisions.

A migration agent can assist with your visa application process and appeal to the Administrative Appeals Tribunal (AAT) in relation to visa refusal or cancellation matters.   Certain matters may need to appeal to the Commonwealth Courts of Australia.  In this case, a migration agent must advise you to seek independent legal advice from a lawyer as migration agents are not permitted to represent clients in Courts.

A lawyer, in addition to the above, can extend further services to you in full legal representation in the Courts, and also to provide advice on other legal matters relating to you other immigration issues such as investment law, business law, corporate law, property law, etc.

 

If you are interested in moving to Australia, the lawyers at Tang Law are qualified as both Migration Agents and Migration lawyers, will provide professional and comprehensive legal advice on your migration matter and on a range of matters that are related to the migration process.

Kelvin Tang

Kelvin has over 14 years’ experience practising law in Western Australia. He is the founder and Principal Partner of Tang Law based in Perth, Western Australia. Kelvin is a Registered Migration Agent (MARN: 1386452) and has extensive experience in providing migration advice to clients, advising on “Eligible Businesses” within the definition of the Migration Regulations, assisting migrants (investor of the business) with satisfying migration requirements, making visa applications and appealing cancelled or refused visas in the Federal Court of Australia, Administrative Appeals Tribunal and Migration Review Tribunal. Kelvin also has extensive experience in civil litigation, commercial and corporate law matters.

Steve Clark

Steve is an Associate Lawyer and Registered Migration Agent (MARN: 1688297) at Tang Law. He was admitted to the Supreme Court of Western Australia and High Court of Australia in 2013. Steve has had experience in providing migration advice to clients, making visa applications and appealing cancelled or refused visas. Steve also has experience in civil litigation, estate planning, commercial and corporate law matters.

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