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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 Do You Protect Yourself Or Your Children From Domestic Violence?

BestFamilyLawyer, BestLawyerPerth, Blog & Articles, Child Support, Divorce, Family Court, Family Court Case, Family Disputes, Family Law, Family Law Perth, 家庭法

DOMESTIC VIOLENCE

Around one in five Australian women and one in twenty Australian men have experienced violence at the hands of an intimate partner

(Statistic obtained from ABS, 2013)

 WHAT IS DOMESTIC VIOLENCE?

 

Broadly speaking, family and domestic violence is conduct that is violent, threatening, coercive, controlling or intended to cause the family or household member to be fearful. Domestic violence should not be tolerated in any form and any person who is subject to domestic violence should seek help (to the extent it is safe to do so) immediately.

 

HOW DO YOU PROTECT YOURSELF OR YOUR CHILDREN FROM DOMESTIC VIOLENCE?

If your safety or another person’s safety is at immediate risk, you should contact the police now!
If the situation is continuing and your safety is not at immediate risk, you may consider seeking appropriate orders from the courts to protect you or your children.

Restraining orders

Restraining order is the most commonly sought protection in domestic violence situations.
A restraining order is a court order intended to protect you (and your children or other family members) from harm from someone who has, or is likely to, hurt you. Generally, there are two types of restraining orders:
·         violence restraining order (VRO); and
·         misconduct restraining order (MRO).
A VRO application is usually made in person in the Magistrates Court but in some urgent situations it can be made through a police officer by telephone. Often, a VRO application in the Magistrates Court is made on an ex parte basis (meaning it was made without giving any notice to, and in the absence of, the person to be restrained). If your application is successful, an interim VRO will be granted which will be valid until the next court date and the police will serve the interim VRO order on the person to be restrained.
The aim of obtaining a VRO is to prevent the other person from committing or further committing an act of abuse towards you so the common conditions the Court imposes include stopping the other person from:
·         coming within certain distances of you;
·         attending or being near your home or place of work; and
·         contacting you in any way (including via Facebook or Twitter).
The fact that the court makes a VRO against another person does not, in itself, mean the other person has committed a criminal offence (although sometimes the police may decide to charge the other person for his/her abusive conducts). However, breaching a condition of the VRO is a criminal offence and may result in a fine and/or imprisonment being imposed.
A MRO operates similarly to a VRO with the main differences being:
·         you are not required to prove an act of abuse (which usually involve some elements of violence), rather, you will need to prove that the other party is likely to act in a way that is intimidating or offensive towards you or may cause damage to your property;
·         breach of a MRO may result in a fine being imposed but not imprisonment, which makes it less serious. 

Injunctions

In addition to restraining orders, in Family Court proceedings in relation to children you may seek an injunction for personal protection.
An injunction is an order made by the Family Court to restrain your former spouse/partner from doing certain acts or things. Under the Family Law Act, the court has the power to grant an injunction to protect the welfare of a child. The injunction may be:
·         for the personal protection of the child, the child’s parents or other carers;
·         to restrain a person from entering or remaining in a place; or
·         to restrain a person from relocating with the child or taking the child overseas.
Often, an application for injunction has to be made urgently and on an ex-partebasis.
Please note that injunction is not available to you if you do not already have Family Court proceedings on foot.
In addition to seeking orders from the courts, there are other organisations which provide supports to victims of domestic violence and it is important that you reach out for help as soon as possible.

About the Writer

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 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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divorce

What To Do When You Divorce?

Anfernee Lai Perth, Blog & Articles, Child Support, Divorce, Family Court, Family Court Case, Family Disputes, Family Law, Family Law Perth, Tang Legal
WHAT TO DO WHEN YOU DIVORCE?
46,498 divorces granted in Australia in 2014
(Statistic obtained from the Australian Bureau of Statistics, 3310.0 – Marriages and Divorces, Australia 2014)

DID YOU KNOW?

Almost 1 out of 3 marriages would result in divorce and the median duration from marriage to divorce is about 12 years.

The statistic may sound depressing but the reality is that you or one of your friends may one day need to face the prospect of divorce and it is helpful to equip yourself with some knowledge about that process.

HOW TO APPLY FOR DIVORCE?

In Australia, we have adopted the principle of no-fault divorce. This means that the court does not require to consider which partner was at fault in a marriage breakdown. In order to apply for divorce, you will only need to prove an irretrievable breakdown of the relationship which is demonstrated by 12 months of separation.
Once you have been separated for more than 12 months, you can apply for a divorce through the Family Court by filing an Application for Divorce (Form 3). You do not need the consent of your partner to apply for divorce. Generally, you are not required to physically attend court.
You may apply for a divorce in Australia even if you were married overseas, as long as you or your partner meets certain requirements.
It is important to understand that divorce application does not resolve children and financial matters.

WHAT WILL HAPPEN TO OUR ASSETS?

First of all, there is NO automatic split of assets on a 50/50 basis and each case is different.
If you and your partner cannot reach an agreement regarding property division, the decision will have to be made by the court. In doing so, the court will adopt a 4 steps process:
        Step 1: Identify and determine the net value of all properties
      Step 2: Assess the contributions (including financial contribution, non-financial contribution and contributions to the welfare of the family) made by each partner and divide the assets according to the contributions
Step 3: Identify the respective needs of the partners by taking into account factors such as age, health, income, earning capacity and number of dependents and adjust the assets division accordingly
Step 4: Determine whether the resulting division is “just and equitable” and determine the final assets division
Whilst you cannot make an application for divorce until 12 months after separation, you do not need to wait for any period before you are entitled to have the assets divided between you and your partner. 

WHAT ABOUT OUR CHILDREN?

If you and your partner cannot reach an agreement about your children, similarly, the decision will have to be made by the court.
In Australia, the term “child custody” is no longer used. Instead, it is referred to as parental responsibility.  In deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration. In deciding what is in the best interests of the child, the primary considerations are the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm.
In addition, the Court will also consider other factors including views expressed by the child, the child’s relationship with other persons (e.g. grandparents and siblings), the likely effect of any changes in the child’s circumstances, the child’s background, the child’s attitude and any family violence.
The types of parenting orders you may seek from the court include:
·         who a child live with;
·         who  a child will spend time with;
·         who a child will communicate with;
·         whether you can take the child to overseas holiday; or
·         who has responsibility for major decision about the child.

SO WHAT SHOULD I DO WHEN DIVORCE IS IMMINENT?

It is undoubtedly a very stressful experience for anyone to have to go through separation of relationship. The first thing you should do is to calm down and don’t allow your emotions to get in the way of rational thinking. You need to understand that most family law disputes can be resolved amicably without determination by the court. Once you are ready, you should, at the earliest opportunity, obtain legal and financial advice about your rights and financial standings as a result of the separation.

About the Writer

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 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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empty-pockets-no-money

FAMILY LAW: How To Prevent Your Ex-Partner from “Emptying Your Pocket”?

Binding Financial Agreement, Blog & Articles, Child Support, Chinese Lawyer, Family Disputes, Family Law Perth, Nortbbridge Lawyer, Perth, Perth Lawyers

FAMILY LAW: How to Prevent Your Ex-Partner from “Emptying Your Pocket”?

After separation, it is common that one of the partners may do all sorts of things to defeat any legitimate claims that the other partner may have in relation to his/her assets, including selling or transferring the assets to overseas or hidden it somewhere without trace. In some extreme cases, a partner may decide to spend or waste all the liquidated assets after separation, not for commercial reasons but to do it simply as retaliation.
The question many people frequently ask is how to prevent this from happening, before it is too late.  In a situation like this, applying for injunction in the Family Court is usually the answer. An injunction is a court order to stop someone from doing something or, in some situations, to make someone doing something.
For property issues, you can get an injunction to stop your ex-partner from selling, mortgaging or otherwise dealing with a property. If the property has already been sold or the asset in question is cash, it is possible to obtain an order to ‘freeze’ bank accounts or an order to seize the cash or any valuables. Interestingly, there was a case in the Family Court in which the wife had successfully obtained a court order to seize a black leather briefcase belonged to the husband based upon the reasonable belief that the husband had kept substantial amount of cash in that briefcase – In the Marriage of Mazur (1991) 15 Fam LR 574.
In appropriate situations, the Family Court can also make orders and injunctions that affect third parties including for example an order to stop a trustee to deal with superannuation entitlements or an order to prevent a bank from selling a house.
An injunction under the Family Law Act is available to both married and divorced people, as well as to parties in a de facto relationship, including same-sex relationship.  Typically, an injunction application is made on an urgent and ex-parte (meaning that it is made without any notice to the other party) basis. If the matter is particularly urgent, it is possible that the Family Court will hear your application on the same day when you filed the application, sometimes even outside usual court hours. If the application is ex parte, your ex-partner will not know anything about it until after the orders are made by the Family Court, which is designed to prevent the ex-partner from doing anything that may frustrate your claims while you are waiting for the court to hear your application.
Once an injunction is granted and while it is still valid, your ex-partner will be given the opportunity to challenge it. If your ex-partner files an application to oppose the injunction, the Family Court will hear the story from both sides and make a determination as to whether the injunction should remain. However, it is often that the purpose of stopping the ex-partner from taking any drastic actions about his/her assets is achieved by that time.

The key in an injunction application is usually timing. You are racing against time and sometimes if you acted a little too slow, you may forever lose the opportunity to stop your ex-partner from siphoning the assets beyond your ability to trace it. For this reason, if you have any concerns that your partner or ex-partner may be doing something in secret about the family assets, you need to act now before it’s too late.

About the Writer

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 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.