Merger of the Australian Family Law Courts

On 1 September 2021 the two Australian Family Law Courts merged into the one court known as the Federal Circuit & Family Court of Australia.

The changes are aimed to reduce delays experienced and costs involved in family law cases. New Rules have been introduced which set out how the new system will work and the obligations on both litigants and lawyers. The aim is for cases that proceed to trial (approximately 5% of all cases filed) to receive a judgment within 12 months. Under the old system delays of several years were often experienced by parties to family law court cases, particularly in the capital cities.

There is an increased focus on the safety and wellbeing of litigants and children, compliance with court orders and dispute resolution. Mediation is to occur within 6 months of filing a case and parties may not meet a Judge until trial with court officials known as Registrars having increased powers to handle court cases to the final stages.

There are new Court forms and there is no longer an automatic right to file an affidavit. The legislation remains the same (Family Law Act 1975) but how it is applied to cases before the courts has changed. Time will tell how effective the changes are.

20 September 2021

What is a personal support team and why would I need one?

What is a personal support team and why would I need one?

Everyone’s experience of separation is different.  Likewise, the personal support each person needs, is different.  What I have witnessed to be true however, is that each person requires personal support of some kind.

Most people need at least one support person.  They may be a friend or family member, someone who does not know your former partner or someone who has personally experienced separation or divorce.  Not every support person will be able or willing to provide all of the personal support you need.  As such, it is wise to build a support team; a group of people who, collectively, provide the personal support you require to move through what is usually an emotional and challenging chapter in one’s life.

What you need from each support person may be different.  You will likely have one or more support people who act as your confidant and others who play different roles.  What you need from each support person may change over time as well.  Initially you may not want to see or speak with anyone about what you are experiencing.  You may find that you then need someone with whom to talk it all through.  You may not.  You may want a support person to try new hobbies or share new experiences with you. He or she may help you discover what you want from your new future.  You may want to ask your confidant for their opinion and advice on important decisions you face. 

Generally people are not good at asking for support. Now is not the time to be shy.  Reach out to the people you trust and feel will provide the personal support you need. 

It is also important to access professional support, for example, counselling, if you need it.  Your personal support team should not be used as a substitute for professional support.

Nothing in this article is legal advice particular to your circumstances.  You should obtain legal advice from an experienced family lawyer as to your situation.

My book “Moving On – What you need to know about Separation & Divorce” contains more information about building your personal as well as your professional support teams.  The book is available for purchase via the “Book” page on this blog site. Ebook and print copies are also available via Booktopia and other online platforms.

Why do I need to do a family law settlement anyway?

 

Why do I need to do a family law settlement anyway?

As a family lawyer, this is a question I am often asked.  As with other major life decisions, I find it is handy not just to focus on the benefits of taking a certain action, but the major risks of not doing so.  To assist you to consider whether, and why, you might need to take action to formalise your family law settlement, I have outlined below the major risks of not doing so for both children’s and de facto/matrimonial property agreements:

Major risks of failing to formalise your parenting arrangements:

Failing to obtain consent orders or a parenting plan regarding the parenting arrangements agreed to by you and your former partner, has the following major risks:

  • if the other parent absconds with, or fails to handover, your child, there is no evidence of the agreed parenting arrangements with which to take action to recover your child.  This can complicate the recovery of your child significantly.  If this is an issue or potential issue in your case, legal advice is highly recommended as to the most appropriate action to take; and
  • if, in the future, you and the other parent no longer agree on the parenting arrangements for your child, conflict and disputes may arise, potentially leading to family law court proceedings.  This can be avoided in most cases by a parenting plan or consent order that clearly sets out the agreed arrangements.

Major risks of failing to formalise your de facto/matrimonial property settlement:

Failing to enter into consent orders or a financial agreement setting out the agreed division of the de facto/matrimonial property pool has the following major risks:

  • you are deemed not to have formally divided your de facto/matrimonial property pool according to the laws which govern family law property settlements in Australia;
    • as such, your former partner may commence court proceedings in the future seeking a greater “slice of the pie”, for example, at a time when your financial circumstances have improved;
    • as the property pool is determined at the date of trial or settlement, your assets at that time, when you may be in a stronger financial position, are divided, even though separation and the informal settlement may have occurred many years prior;
    • conversely, if you are seeking a formal property settlement at a future time, because, for example, you discover that your former partner failed to disclose all of his/her assets at the time of your informal settlement, and his/her financial position has since declined, the outcome of your property adjustment application may be prejudiced;
  • your informal settlement may be well below your entitlements or not in your interests.  When taking steps with an experienced family lawyer to formalise your agreement, he/she can assess these issues for you;
  • your informal settlement may not have considered and catered for all relevant assets, liabilities, financial resources and superannuation interests.  Legal advice from an experienced family lawyer should identify any such issues and ensure they are considered in any formal property settlement deal;
  • your informal settlement may not have considered all relevant legal issues, leaving you legally and financially exposed; 
  • you will have to pay stamp duty on the transfer of dutiable assets such as real property, which can be in the tens of thousands of dollars.  Transfers of dutiable property pursuant to consent orders or a financial agreement, attract stamp duty exemptions, which often lead to significant savings to the parties even after legal fees are paid; and
  • capital gains tax and other tax issues may arise from your informal settlement, which you were not aware of, and did not take into account, or settle off, as part of the informal settlement.

Take home messages

  • consult an experienced family lawyer for advice about formalising your family law settlements, whether they involve parenting, property, spousal maintenance, child support or other issues;
  • it is also important to be aware of the legal time limits that apply to resolving your de facto or matrimonial property settlement and any spousal maintenance issues, of 2 years from separation for a de facto relationship, and 12 months for a final divorce order for marriages; and
  • if you and your former partner have agreed on a family law settlement, but have not formalised it according to the requirements of Australian family law, it is not too late.  Obtain family law advice and if necessary, a new settlement deal might be brokered and then formalised according to law. 

Nothing in this article is legal advice particular to your circumstances.  You should obtain legal advice from an experienced family lawyer as to your situation.

My book “Moving On – What you need to know about Separation & Divorce” contains further  information about resolving your family law issues and the legal, financial, practical and emotional issues you may face.  The book is available for purchase via the “Book” page on this blog site. Ebook and print copies are also available via Booktopia and other online platforms.

You’ve just separated, what now?

You’ve just separated, what now?

Separation is a confusing, emotional and scary time for many.  Concerns arise such as are the children okay? Will you have enough money? Where will you live? When will you see your children? What will your future look like?

In an attempt to reduce your stress levels and help you make the necessary arrangements in the immediate period after separation I have set out below 4 important things you should consider and attend to:

  1. If you have children, discuss with your former partner how and when you will tell the children you have separated. Will you do it together? Agree upon what you will and won’t say;

  2. Agree upon the parenting, living and financial arrangements to be put in place for the first few months after separation.  This is what I call a holding pattern.  It is designed to ensure your immediate concerns about your children, housing, finances and transport are allayed.  Attempt to agree upon where the children will live, when they will spend time with each of you, who will remain living in the home, who will pay what expenses initially and what form of transport each of you will have access to.  Unless absolutely necessary, these arrangements need not be formalised. You should obtain legal advice from an experienced family lawyer as to any concerns you have about these issues;

  3. Seek out personal support.  Reach out to trusted friends or family members.  You will need them now more than ever.  Separation and the legal processes that follow take an emotional toll.  The uncertainty, anxiety and stress that separation brings can cause mental health issues.  Consider obtaining professional support from a mental health expert such as a counsellor.  Also consider whether your children need professional support; and

  4. Promptly consult an experienced family lawyer for initial advice on your separation, the legal issues and the likely settlement and other processes you will need to undertake.  Explain your separation, your family situation and discuss your particular concerns.  He or she can advise you on the legal issues, what’s ahead and what you should do to prepare.  You and your lawyer can then come up with a plan.  Unless absolutely necessary, I do not recommend starting the legal process in the first few months after separation.  Get advice and start preparing for what’s ahead but don’t rush in until you have come to terms with what’s occurred.  Separation is a major life change.  Take advice from your lawyer about timing.

My guidebook “Moving On – What you need to know about Separation & Divorce” contains more information about what you should consider and attend to after separation.  The book is available for purchase via the “book” page on this blog site. Ebook and print copies are also available via Booktopia and other online platforms.

Nothing in this article is legal advice particular to your circumstances.  You should obtain legal advice from an experienced family lawyer as to your situation.

What’s so special about family lawyers?

What’s so special about family lawyers?

Like other lawyers, family/divorce lawyers completed a university law degree and further training before becoming admitted as lawyers/solicitors. Where family lawyers differ is what they do after that. 

Family lawyers have specialised knowledge of and experience in the various legal issues that separating de facto and married couples and their families face.  They have usually attained this specialised knowledge and skill by specialising in the practise of family law and working and studying in this area for many years.

They not only learn the law of divorce, property settlements, parenting arrangements and children’s issues, child support, spousal maintenance, domestic violence and child protection but also the mediation and court systems particular to the practise of family law.  They regularly appear in Court and represent clients at mediations and other dispute resolution events.

Family lawyers need to be across the various institutions separated couples have to navigate including Centrelink and Child Support.

Knowledge of property law, commercial law and taxation as it relates to family law settlements is essential.

An appreciation of mental health, addiction and domestic violence issues and an understanding of the effect of separation and divorce on children and the family unit must quickly be developed.

To assist clients to navigate the settlement process as successfully as possible and with the least damage to their family and finances, an understanding of the role played by other professionals including mental health experts, accountants and financial planners is required.  Family lawyers regularly work closely alongside these aligned professionals.

Family lawyers need to be skilled at drafting legal documents and appearing in Court and settlement processes including mediation. They need to be able to listen, communicate, advocate, negotiate and empathise with their clients.

As you can see from this article, family lawyers are not ordinary lawyers.

Who is the Julie Hodge The Family Lawyer blog for?

Who is the Julie Hodge The Family Lawyer blog for?

Are you separating or divorcing? Do you know someone who is? Are you a health/mental health expert, accountant, financial planner or other professional who works with families or separating couples?  Do you want to save yourself, your clients or someone you care about – time, money and stress and help them to resolve their family law issues? Then this blog is for you!

Through complimentary articles and resources I will inform you about the legal issues and highlight the practical, financial and emotional issues people face when separating or divorcing. This page is designed to help people prepare for and handle separation and divorce so that they may move on with their new lives.

Who is Julie Hodge The Family Lawyer?

Who is Julie Hodge The Family Lawyer?

I am Julie Hodge The Family Lawyer.  I am passionate about educating people about separation and divorce so that they may play a positive and active role in their settlement and build a new future for themselves and their families.  I am a Cairns local, a wife and mother to two gorgeous boys.

I have been assisting Australian families to resolve their separation and divorce issues since 2007, practising as a Family & Divorce Lawyer in Far North Queensland.  Over that time I have become concerned that people experiencing separation and divorce not only lack important information about the legal process but also the emotional, practical and financial issues they may face.

I am a trained Collaborative Law Professional and my expertise has been recognised in the Doyle’s Guide to the Australian Legal Profession being named as a leading North Queensland Family & Divorce Lawyer for 4 years running.

My desire to ensure holistic information is available to people facing separation and divorce drove me to write the legal guidebook “Moving On – What you need to know about Separation & Divorce” which was released in September 2018.

Like my book, I created this blog site to save people time, money and stress and help them to resolve their family law issues.  It will educate people about the legal issues and highlight many of the practical, financial and emotional issues people may face.

I have also been involved with many local organisations, volunteering as a family lawyer at the Cairns Community Legal Centre and North Queensland Women’s Legal Service and educating members of the public via presentations for CPA Australia and M-Powered Women Cairns.

20 September 2018