PEXA E-Conveyance Vs Paper Settlement

E-Conveyance Vs Paper Settlement

Deciding on the most efficient and best value option for settling your property transaction is at the front of mind to most people and with the onset of modern technology, this decision now includes the option for electronic processes. So which is better? A traditional paper settlement or a more modern approach by way of conveyancing? Let’s discuss.

What is a Paper Settlement?

A “paper settlement” is the traditional method of settling a conveyancing matter. Solicitors Brisbane for the Buyer and Seller, the lending bank, and the releasing bank all meet in person at an agreed location to swap legal documents and hand over bank cheques.

What is a PEXA e-conveyancing?

PEXA E-Conveyancing is an electronic form of settlement, which minimizes the manual processes associated with a traditional paper settlement. Solicitors and banks transact together in an electronic environment to swap legal documents and transfer funds via electronic funds transfer (EFT).

Pexa E-Conveyancing is a great way to settle your property transaction. It allows for a very efficient, fast, and secure way to settle your property transaction in real-time with no delays. This includes treating sale proceeds as cleared funds so there is no waiting for cheques to be deposited and cleared into the Seller’s account. A PEXA settlement also provides for lodgement of legal documents instantly with the Land Registry which reduces the risk of delaying registration of the property transfer.

Always know what’s going on conveyancing

A PEXA Settlement can also incorporate an app that allows real-time tracking for Buyers or Sellers.  You can keep yourself updated the entire way through the conveyance by using the free settlement app “Settlement”. Buyers and Sellers can keep themselves informed throughout the settlement process and know exactly when settlement is complete.     

Use PEXA through Aylward Game Solicitors

In states such as New South Wales and Victoria, PEXA Settlements have become mandatory. However, with Queensland set to follow suit many law firms have not adopted the electronic settlement process and are not subscribers to PEXA.

Aylward Game Solicitors are subscribers to PEXA and we are able to provide Buyers and Sellers with the option of an electronic settlement or a traditional paper settlement. Each Client along with each property transaction is individual and we strive to provide our clients with a tailored conveyancing experience.   

Article Source: PEXA E-Conveyance 

Queensland Surrogacy Process in Australia

SURROGACY – A COMPLICATED PROCESS IN QUEENSLAND AND AUSTRALIA

What is the surrogacy process in Australia?

A surrogacy arrangement is an arrangement between a woman ( the “birth mother”) and another person or persons ( the “intended parent or parents”).  The birth mother can give birth to a child with the intention that the child is to be treated as the child of the intended parents.  It is intended that the parents will then have custody and guardianship of the child.

Commercial surrogacy arrangement

A commercial surrogacy arrangement occurs if the birth mother receives any type of payment, reward or other material benefit or advantages from giving birth to the child. Commercial surrogacy arrangements are not legal in Queensland nor Australia (apart from the Northern Territory where there seems to be little legislation in regard to this).  The birth mother can be compensated for reasonable medical, legal and counselling expenses arising from the birth of the child.  These payments do not render the surrogacy arrangement a commercial one.

Parentage order and the Surrogacy Process

An order is made by the Children’s Court for the transfer of the parenting of the child to the intended parents.

Surrogacy arrangements can only occur if the intended parents for medical or other reasons are unable to conceive and give birth to a child.  In the case of female same-sex couples, both intended parents must be able to show that both women are unable to carry or conceive a child on medical grounds.

There are strict requirements for entering into any surrogacy agreement and those requirements must be complied with.  The agreements must be entered into prior to the child being conceived.

Even if the parties enter into a surrogacy agreement in Queensland these agreements are unenforceable.  This means that the parties cannot enforce the arrangement if things go wrong. In such circumstances, the parties are required to bring an application to the Family Court pertaining to the parenting of the child.  The Family Court will then engage in an assessment of the child’s best interest.

To legalise the arrangement after the birth of the child the parties must apply for a parentage order 28 days after the child is born and before the child is 6 months old.  Such applications are brought before the Children’s Court.  There are strict conditions and regulations that must be adhered to and complied with if this application is to be successful.

The requirement to obtain independent legal advice and counselling.

The legislation requires that all parties to a surrogacy arrangement obtain independent legal advice and counselling before entering into any agreement.

Overall surrogacy arrangements are complicated in Queensland.  Further information may be obtained on this by visiting our website. 

Article Source: surrogacy australia 

What is Power of Attorney and When Would You Need It?

 

In simple terms, a power of attorney is a legal document where a person is nominated to act on your behalf (known as the agent) regarding your affairs. The document gives the nominated party the legal capacity to make decisions for you on things like financial matters and other duties.

The person given attorney does not have to be a lawyer, although in many cases a law firm is enlisted to act as power of attorney.

Some common tasks of those entrusted with power of attorney can include, but are not limited to:

• The buying and selling of property
• Operating bank accounts
• Organising the paying of bills and debts
• The power to vote in meetings
• And lots more…

The tasks involved will depend on particular circumstances and what the principal (the person delegating the power of lawyer) requires and stipulates.

When Might You Need To Delegate Power of Attorney?

Many people only assume power of attorney is entrusted to someone when the principal no longer possesses the mental capacity to make sound decisions, such as in the case of someone with Alzheimer’s or suffering an incapacitating illness or injury.

While this is often the case, the are other scenarios where you may need to consider giving someone you trust the power of Solicitor, even on a temporary basis.

One such instance is when you might be required to spend a significant amount of time overseas and find it too difficult to handle all your affairs back home from abroad.

If you, the principal, lose your capacity to make decisions, then the power of attorney you delegated will cease.

Enduring Power of Attorney

With the enduring power of a lawyer, you are empowering your legal representative to look after your affairs. This can be immediate or specified to come into effect at a later date in the event that you lose your mental capacity to make your own decisions.

In this case, your lawyer handles those decisions for you and takes care of any tasks nominated in the power of attorney document. In some cases, this could even include decisions regarding things like medical treatment and financial matters.

Will and Estate Planning Brisbane

When it comes to preparing wills, estate planning, and matters regarding the power of a lawyer, your local and highly experienced law firm in Brisbane is Aylward Game Solicitors. If you need advice regarding the delegation of power of solicitors to someone you trust, then think of us first. 

Article Source: power of attorney

Top Ten Issues You Need To Know About Family Law Litigation

Follow along for the latest installment of our ‘TOP TEN ISSUES YOU NEED TO KNOW” series. This feature discusses the Top Ten Issues You Need To Know About Family Law Litigation.

In 1975 the Federal Government set up the Family Court to deal with matrimonial matters.  It now also deals with de facto and same-sex relationships.  Prior to 1975, the State Supreme Courts had jurisdiction in regard to issues resulting from a breakdown in a marriage.  De facto couples and same-sex couples had no representation in this Court.  Under the Matrimonial Causes Act, it was necessary to establish a fault to bring matters before the Court, such as cruelty, desertion, separation for a lengthy period of time, and other such matters.  The requirement to establish these grounds was abolished and parties can now have matters dealt with in the Family Court as soon as separation occurs in their relationship.  There is a requirement for a separation of 12 months to bring an Application for Divorce but that does not prevent applications in relation to property issues and children being filed with the Court immediately after a separation has occurred.

Disadvantages of Family Law litigation

1. There can be lengthy delays in having the matter dealt with by the Court. It is not unusual for a matter to take 15 months to 2 years for a final determination to be made by the Judge.  The parties can at any time reach an agreement on the issues before the Court and have orders issued by way of consent.
2. Family Law Litigation including Family Court proceedings can be costly. There are requirements for the filing of applications and affidavits and other documents and these documents must be properly drafted if the matter is to proceed through the Court.  The parties have separate representation.  The solicitors receive varying instructions which can create conflict in the conduct of the matter which draws out the process of reaching a speedy resolution.
3. Proceedings in the Family Court are emotionally draining for the parties. Friends and family can be drawn into the process creating relationship difficulties.  It is an adversarial process that does not assist in a conciliatory resolution of the issues before the Court.
4. The parties in Family Court litigation have no control over the process. Dates are set for the mentions and various hearings of matters before the Court.  If the parties are unable to resolve their matters then a judgment will be forced upon them at the conclusion of the matter by way of trial.  The judgment may not be to everyone’s satisfaction.  The parties are subject to examination, cross-examination, and re-examination during the trial process and it can be a harrowing experience for those involved.
5. The parties have no control over the running of the matter through the Court process and are required to comply with directions and orders made and for appearances on dates set by the Court.
6. Legal representation is not necessary for the running of a matter in the Family Court. Self-litigants however do not have the knowledge required to meet all the requirements that are imposed upon them for the proper conduct of their matter and the drafting of their Court documents.  It is not an easy process to follow and self-litigants may not have the ability to properly present their evidence to the Court nor to comply with the requirements for the drafting of the application and other Court documents.

 Advantages of Family Law litigation

1. Court orders made by the Court are enforceable and this provides some certainty to the resolution of financial issues and children’s issues arising from a breakdown in a relationship, leading to family law litigation. Court orders are enforced in the Court.
2. Where there is a real concern in regard to the parenting of the children an Independent Children’s Lawyer can be appointed by the Court to solely look after the children’s interests. An Independent Children’s Lawyer is funded by Legal Aid although the parties may be requested to contribute to a small degree to the costs of the children’s lawyer.  The children’s lawyer has the ability to obtain relevant information from doctors, hospitals, schools, and other sources.  As well a Family Report may be prepared at the request of the children’s lawyer.  The Court can also order a Family Report without the appointment of a children’s lawyer.  The Report Writer will then interview the parties with the children if that is appropriate and present a detailed report with recommendations for a resolution of parenting issues.  The Judge hearing the matter will make his or her own assessment of those recommendations.  The information obtained by the Independent Children’s Lawyer reduces the costs of the parties personally obtaining such documentation and information.
3. There is a requirement in relation to parenting matters for the parties to attend a mediation prior to the institution of proceedings in the Court unless there is some element of urgency in bringing this application. The Federal Government has set up Family Relationship Centres which provide this mediation service without cost to the parties.  This is a very valuable means of resolving parenting issues or if not reaching a resolution of minimising the matters which then go to the Court.
4. An application for divorce can be filed 12 months after the date of separation. The parties have 12 months after the order for divorce is made by the Court to resolve financial issues otherwise leave of the Court must be obtained.  It is a no-fault divorce application.

Article Source: Family Law Litigation

  

Who’s Your Daddy? Am I the child’s parent?

Who’s Your Daddy?

Am I the child’s parent?

Strange as it may seem, we do not see too many women through our door asking how they would know or be able to prove if they are a child’s legal and biological parent.  We do however experience the question raised quite often by men.

In our experience as Family Lawyers in Brisbane that men are approached by current or former partners to request they contribute financially to raise their child.  Some men wish to prove a lack of paternity to negate their obligations in this regard.

Other fathers will seek to prove the paternity of a child to establish a right to spend time with that child.  Many men in these situations come to us in a bid to understand their legal rights and the rights of a person seeking to prove paternity.

A mother can request a male she suspects to be the father of a child to undertake a simple DNA test from a certified laboratory for such testing to establish parentage.  If the father accepts it is often accepted that the mother pays for such a test.

Should the man suspected of being the father refuse to take a DNA test, then the mother will be required to make an application to the Family Court of Australia to seek a declaration of paternity.

A Court may order that a male whom it suspects could be the father of a child take a DNA test.

Enforcement of the order (forcing the male to undertake the test under threat of a penalty) is not possible, however, the fact that the male chose not to undertake a DNA test will be considered when deciding whether to make a declaration that the male is or is not the father of a particular child.  In such circumstances, the Court may make a declaration that the male is the father of the child and he may then be liable to pay child support.  The only way to prove otherwise is for the father to undertake DNA testing and apply to the Court for a declaration that he is not the father of the child. So a suspected father may chance his luck however it is likely that he will not escape his obligations and after further time and cost will be proven liable to support their child.

It should be noted that an application for a declaration of paternity does not attract an application fee.

For more information on your situation, please contact a Specialist Accredited Family Lawyer today at Family Law on 1800 217 217 or click here to book a consultation or see other options.

Contact us 

Article Source: Who Is Your Daddy 

Judge allows divorce papers to be served via Facebook

Facebook has been a place for people to promote their new single status for years, but now it also has the power to help people legally reclaim their single life. In a landmark ruling, a New York City judge had declared that Facebook messages are an acceptable way to serve divorce papers, according to the New York Daily Post.

Manhattan Supreme Court Justice Matthew Cooper has given permission for a nurse named Ellanora Baidoo to serve her elusive husband Victor Sena Blood-Dzraku through a private message on Facebook.

Her lawyer Andrew Spinnell will message Mr. Blood-Dzraku, through her account, once a week for three consecutive weeks or until Mr. Blood-Dzraku acknowledges it.

While the first Facebook message was sent out last week, Mr. Blood-Drzaku has yet to respond.

Mr. Spinnell said the new law was necessary and noted that it had been incredibly difficult to try to serve Mr. Blood-Szraku by traditional methods.

“We tried everything, including hiring a private detective — and nothing,” Mr. Spinnell said.

Mr. Blood-Dzraku who has no fixed address or place of employment occasionally keeps in touch with his 26-year-old wife on the phone and through Facebook, the ruling said according to New York Daily News.

The post office has no forwarding address for Mr. Blood-Dzraku, who refused to make himself available to be served divorce papers.

‘There is no billing address linked to his prepaid cell phone, and the Department of Motor Vehicles has no record of him,’ the ruling added.

Mr. Spinnell says the couple married in a civil ceremony in 2009 but noted that the relationship began to unravel when the defendant reneged on his promise to a traditional Ghanaian wedding ceremony as well.

As a result, the couple from Ghana never consummated their marriage and the husband and wife never lived together.

Newsbreak – April 7

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So does any of this apply to Australia?

The answer is YES! It could also happen in Australia.

Normally documents are served in two ways in Australia that are acceptable to the Court.  The first means of service is personal service which cannot be done personally by the applicant.  A Process Server is engaged (or a friend or relative) to serve the documents.  Normally a photo is provided so that the respondent can be identified.  Car registration details and other information which would assist in identifying the respondent are normally provided.  The Process Server is required to ask questions to properly identify the person served.  The Process Server is then required to complete an affidavit of service setting out all relevant information in regard to the service of the documents in which the affidavit is filed with the Court.

The second acceptable means of service is by post.  Included with the documents to be served is a document titled “Acknowledgement of Service” which the respondent is required to sign and return.  If this document is signed and returned then the applicant is required to identify the signature of the person served in an affidavit titled “Proof of Signature” and this is filed with an affidavit of service setting out the details of the service of the documents by post.

If the respondent fails to complete the Acknowledgement of Service then personal service is required.

If however the whereabouts of the respondent is not known an application can be made for substituted service nominating a suitable means of service which would enable the respondent to be made aware of the proceedings before the Court.

An application can also be made for the whereabouts of the respondent to be provided by the Department of Social Security if the respondent is known to be receiving government benefits.

Before an application is made for substituted service the Court must be satisfied that all appropriate means to locate the respondent have been exhausted and the whereabouts are unable to be established.  This may mean inquiries with relatives, friends, the last place of employment, and so forth.

If the Court is satisfied the respondent will gain knowledge of the proceedings by substituted service then service may be ordered by Facebook, email, or posted to a known close relative or some other acceptable means.

In response to the article in question, yes the documents may be served by Facebook if the Court deems that to be an acceptable means of service.

Contact us 

Article Source: Divorce Papers 

5 Common Family Law Myths

Our family lawyers chime in on their top 5 family law myths that you may not know about…

1. A Couple needs to live together for 6 months to qualify as a de facto relationship.

We hear this one a lot, and we don’t know where it comes from! The Family Law Act says that in order to commence proceedings for a property settlement, a de facto relationship must have lasted for at least 2 years, or the couple must have a child or the party to the de facto relationship who applies for the order or declaration made substantial contributions and a failure to make the order or declaration would result in serious injustice to the applicant.

2. As soon as you “hit the threshold” of a de facto relationship, all of your property and assets will be divided equally with the other person in the event of a split.

Whilst, in theory, this is a possibility, there are a number of factors that the Family Law Act specifies a Court must take into account when deciding a property settlement division, and there is no automatic assumption of an equal split.

3. If 2 parents who have separated have children and those children spend equal amounts of time with each parent, then no child support is payable.

Whilst on the face of it we can see why this is a common assumption, in practice, this is not the way it works. If either parent applies to the Child Support Agency they will use a formula set out in the legislation to work out if child support is payable, and if so, how much. The amount of nights a child spends with each parent is one factor, but there are others, including how much each parent earns.

4. If you didn’t get married in Australia you can’t get divorced in Australia.

Again we can understand why this seems possible, but in fact, it is not the case. If one spouse is an Australian Citizen, or regards Australia as their home and intends to live here permanently, or ordinarily lives in Australia and has done so for 12 months prior to filing an application, then an Australian Court has the power to grant a divorce. That is of course provided that the couple was validly married in another country.

5. The Court will “punish” the person who is at fault for the breakdown of the relationship.

When we meet with clients for the first time, we are often asked about the consequences of behaviour and whether behaviour is relevant – in effect will the Court decide who is at fault for the relationship breaking down, and will that affect the property settlement outcome. Whether you think that is a good or a bad thing perhaps depends on your perspective, but the legal position in Australia is that the Court will not investigate the reasons behind the relationship ending.

What do you think? Check out some of our other blog posts:

• Mental Illness In The Workplace

• Discrimination on Public Transport

• Is Surrogacy Legal In Australia?

Contact
United Service Club
Level 4, 183 Wickham Terrace, Brisbane QLD 4001

Free: 1800 217 217
Phone: 07 3236 0001
Fax: 07 3236 0005

Email: mail@aylwardgame.com.au 

Article Source: Family Law Myths

PRENUPTIAL OR BINDING FINANCIAL AGREEMENTS

 

Prenuptial and Postnuptial Agreements and information relating to Pre Nups & Financial Agreements in Brisbane.
Prenuptial agreements and binding financial agreements will set out exactly how all or any of the assets, (owned by you at the date of signing the agreement or acquired after signing the agreement), will be divided between you and your partner in the event of breakdown of the marriage or the de facto relationship. The agreement may allow for maintenance issues to be dealt with in marriages and de facto relationships, after divorce or separation.

If you are contemplating marriage or entering a de facto relationship, it is a good idea to get a lawyer to draft and execute a prenuptial agreement/financial agreement for you. You can also have a prenuptial agreement/financial agreement drawn up during your relationship. This will safeguard your personal assets in the event your relationship does not work out.

Always know your legal options by consulting an Accredited Specialist Family Lawyer in Brisbane.

PRE-NUPS, POST-NUPTIALS & BINDING FINANCIAL AGREEMENTS BRISBANE (BFA’S)

Protect your assets and your financial future before, during and after the breakdown of a relationship, partnership or marriage.

If parties in a relationship (family, de facto, same sex couples) come to an agreement on how they intend to divide their assets, then they can enter into Consent Orders or a Prenuptial Agreement/Financial Agreement to make the agreement legally binding.

CONSENT ORDERS

Parties can enter into consent orders to finalise the arrangements in relation to property, children, and spousal maintenance by signing an Application for Consent Orders document and lodging the document with the Family Court of Australia. The Application is considered by the Court and the orders made by a Judicial Officer. Parties can apply for consent orders without the necessity of going to Court.

PRENUPTIAL, POST-NUPTIAL AND BINDING FINANCIAL AGREEMENTS IN BRISBANE

A Prenuptial Agreement is an agreement entered into between parties that relate to spousal maintenance and the distribution of property. A Prenuptial Agreement is not lodged with the Court. There are several types of Prenuptial Agreements.

IF YOU WOULD LIKE TO READ THE RELEVANT SECTIONS OF THE LEGISLATION IN REGARD TO DIVORCE PROPERTY SETTLEMENT PLEASE GO TO THE FAMILY LAW ACT. PLEASE REFERENCE SECTIONS 90 & 90U.

PRENUPTIAL AGREEMENT AND FINANCIAL AGREEMENT BEFORE, DURING AND AFTER RELATIONSHIP BREAKDOWN

Parties are able to enter into a prenuptial agreement or financial agreement regarding assets acquired:

• before and during the relationship; as well as
• after the relationship has ended.

Note: Brisbane Prenuptial Agreements and financial agreements can be particularly useful where you have inherited assets from a family estate, or where you have accumulated your own personal wealth from a successful career and making wise investments.

To make an appointment please call us on (free call) 1800 217 217

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• Pre Nups Brisbane
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BINDING FINANCIAL AGREEMENTS

Some helpful advice if you are considering entering into a Financial Agreement.

Financial Agreements under the Family Law legislation are not simple agreements, especially for same-sex couples. There are certain requirements that must be complied with if the agreements are to be binding. If these requirements are not properly dealt with the Court will have no hesitation in overturning a Financial Agreement should either you or your partner in the future not wish to be bound by its terms.

Solicitors are required to advise the parties entering into a Financial Agreement on the advantages and disadvantages of entering into those agreements. The parties sign a certificate attached to the agreement that they have received this independent legal advice. The solicitors also sign certificates stating that they did provide the advice required prior to the parties signing the agreement.

The advice not only deals with the terms of the agreement itself but also provides full advice on the legislation under the Family Law Act and the positions the parties would be in if they had not entered into the agreement.

Agreements are drafted to suit the particular circumstances of each case. The agreements come under different sections of the Family Law Act depending on whether the parties are in a de facto relationship and wish to remain in that relationship if the parties are in a de facto relationship and intend to marry, an agreement during marriage and also an agreement after a divorce setting out the terms of a property settlement dealing with the financial issues arising from the breakdown and the divorce in the marriage

When drafting the agreement and to enable a solicitor to provide the required advice it is necessary to obtain detailed instructions of the relationship, contributions made by the parties at the commencement of the relationship, and contributions made by the parties during the relationship. Without these instructions, full and proper advice cannot be provided.

Once a client’s instructions have been obtained in regard to the relationship and contributions it is then necessary to obtain the detailed instructions in regard to the wishes of the parties in regard to assets they wish to maintain full and legal control over and those assets which are to be joint assets. Instructions are also required in regard to superannuation, estate rights and spousal maintenance should the relationship break down or if there is a death of one of the parties.

Once the agreement has been drafted setting out the parties’ joint instructions to their respective solicitors it is then necessary to provide detailed advice on the terms of the agreement reached and on the advantages and disadvantages of entering into that agreement.

Unless all these steps are carried out and proper advice given there is a strong possibility that the agreement would be overturned by the Family Court if a party upon separation wishes to set aside the agreement and seek a greater property settlement than that set out in the agreement itself.

It is necessary for both parties to provide schedules setting out their present assets, liabilities, and resources including superannuation. The updated schedules are required to be attached to the Financial Agreement itself.

It is to be hoped that the parties agree on the values of the items set out in the schedules without requiring formal valuations to be carried out. The solicitor acting for the other party is required to give the advice that has been mentioned.

WHAT ARE THE ADVANTAGES OF ENTERING INTO A POST-NUP, PRE-NUPTIAL AND FINANCIAL AGREEMENT?

1. A financial agreement does not become a court record. There is no requirement for filing the financial agreement in any court and in particular, there is no requirement for filing a financial agreement in the Family Court.

However, it is necessary that the original agreement is given to one party and that a true copy given to the other party.  It is also necessary that the financial agreement is stored with a person’s important documentation.  The agreement does not come into effect until sometime in the future when a separation occurs and this may not be for a considerable number of years.  Therefore there is an obligation on the parties to maintain the financial agreement in case it does become relevant at some future time.

2. The parties can incorporate spousal maintenance terms into their financial agreement. The parties may wish to define the spousal maintenance to be paid should there be a breakdown in their relationship and should the financial agreement come into force.  Although the financial interests of the parties are clearly defined in the agreement a party in certain circumstances could apply for spousal maintenance after separation even if there have been terms included in the financial agreement preventing the party from applying.

It is advisable to define clearly the spousal maintenance to be paid should a separation occur.

However, the parties should be aware of the provisions of section 90F of the Family Law Act and other provisions where there is a de facto relationship.  These provisions state:-

1. No provision of a financial agreement excludes or limits the power of a court to make an order in relation to the maintenance of a party to a marriage or a de facto relationship if the court is satisfied that, when the agreement came into effect, the circumstances of the party were such that taking into account the terms and effect of the agreement, the party was unable to support himself or herself without an income-tested pension, allowance or benefit.
2. The assessment of the ability of a party to support themselves without an income-tested pension benefit takes place not when the agreement is made but when it takes effect.

ABOUT CHILD MAINTENANCE AND CHILD SUPPORT

In regard to child maintenance or child support terms for child support, terms can be inserted in a financial agreement but such terms must meet the requirements of the Child Support (Assessment) Act.  Effectively a child support provision in a financial agreement can only set out on a temporary basis the child support obligations of a party to the agreement.  Once a child support assessment is made by the Child Support Agency, any child support provision in a financial agreement ceases to have an effect and is unenforceable.

3. Provisions can be incorporated into a financial agreement to determine the superannuation interests of the parties. That is pursuant to the terms of the agreement the parties can determine how their superannuation entitlements will be paid if there is a separation of the parties and when the terms of the agreement come into effect.  However, careful consideration must be given to the drafting of terms in regard to superannuation.  A number of a person’s entitlements will only become known when the agreement comes into effect upon separation or the death of one party.  As in a court order, there can be a splitting of a person’s superannuation entitlements.  However, the drafting of such terms must satisfy the requirements of the trustee of the particular fund.  The superannuation determination will only affect the policy that is taken into account.  There may be other superannuation funds that a party enters into in subsequent years and therefore provides for these superannuation entitlements may not have been envisaged at the time that the agreement was entered into.  The agreement could take effect many years later.  Where a superannuation fund has not been specifically referred to the entitlements of a party to that fund upon death will be given to the nominated beneficiaries in the fund itself.  To ensure that a party obtains an interest in a person’s superannuation entitlements upon death then the party must be aware of the beneficiaries in his actual superannuation fund.  For the benefits in a superannuation fund to be paid to the other party upon separation,  the provisions must be specifically set out in the financial agreement and the trustee of the fund must be given procedural fairness to approve the provisions set out in the agreement.
4. The parties in a financial agreement can limit the agreement if it is their wish to do so to name only certain assets to be dealt with upon separation. For instance, if there is a family farm and the family requires that it remain in the family and not be given to another party then provisions can be set out in the financial agreement to ensure that occurs.  As well if there is to be a partial transfer of an interest in an asset upon a separation then again the provisions can be drafted to ensure that partial separation does occur.  A financial agreement may cover the assets of the parties or can be limited to certain assets if the parties so wish.  This means that the assets falling outside of the agreement will be dealt with under the general provisions of the Family Law Act and in relation to the law applicable at the time of the separation.
5. The financial agreement may include third parties and the third parties can be bound by the terms of the agreement. The Family Court does not have the power to make orders against third parties and therefore a financial agreement has a greater advantage over court orders in this regard.

WHAT ARE THE DISADVANTAGES OF ENTERING INTO BINDING FINANCIAL AGREEMENTS

Disadvantages of entering into a financial agreement:

1. The parties to a financial agreement clearly define what will happen to their assets and liabilities if a separation should occur in their relationship. This separation may occur many many years after the financial agreement is entered into.  The terms of the financial agreement only come into effect once that separation occurs.  There could be substantial changes in the person’s financial positions during the years after the agreement is entered into.  Although the agreement may be fair and equitable at the time the agreement was entered into it may not be fair and equitable many years later when the terms of the agreement come into effect.  This would mean that a party may suffer severe financial hardship because the terms of the agreement are not relevant at the time the separation occurs.  There could be substantial changes in the assets and liabilities of the parties or a party could make substantial contributions towards the acquisition and improvement of assets but would gain no financial interest in the assets although the value of the assets has subsequently increased.  A party could make substantial contributions towards the acquisition and improvement of the assets but gain no interest in the increased value of such assets at a later date.
2. The parties are required to obtain specific and detailed legal advice prior to and at the time of entering into a financial agreement. How can one party ensure that the other party obtains proper legal advice?  Even though one party does obtain the required legal advice the other party may not obtain legal advice that is sufficient and therefore the agreement can be set aside.  It is difficult to ensure that the other party does obtain the required legal advice.
3. As stated earlier, agreements are not required to be filed or lodged with any court. If the parties lose their agreements and if the solicitors’ copies cannot be obtained then the parties will not be able to enforce the provisions of that agreement.
4. There is a large cost in ensuring that the parties have been given the proper legal advice and in ensuring that the document has been properly drawn. Consent Orders at the time of separation are more binding than financial agreements because they are more certain.  There is always the uncertainty of entering into a financial agreement or having that agreement overturned at some later date.
5. A party must ensure that children born after the agreement has been signed are taken into consideration. Under the terms of the Family Law legislation, a party who has the care of children could gain substantial interests in the net matrimonial assets.  However, if parties enter into an agreement and do not cater for children being born at some subsequent time then they may be financially disadvantaged after separation in their relationship.
6. Full disclosure is required by both parties of their assets and liabilities. If at a subsequent time after the signing of the agreement or upon a separation a party becomes aware of other assets owned by the other party and not disclosed in the agreement then the agreement may be set aside.

BINDING FINANCIAL AGREEMENTS MAY BE SET ASIDE UNDER THE PROVISIONS OF THE FAMILY LAW ACT

The Family Law Act 1975 provides that a financial agreement will “end” in two circumstances.  It can be either “terminated” under s90J or 90UL or “set aside” under s90K or 90UM.  Termination is an action of the parties but setting aside is an action of the court.  A court may set aside an agreement if it is “void, voidable or unenforceable”.  If this ground is used, the parties or one of them may already consider that the agreement no longer operates.  A party may apply to the court for an order that a financial agreement is set aside in circumstances where that party already believes that the contract has been rescinded, breached or is otherwise unenforceable.

1. Sections 90J and 90UL of the Act specifically provides that parties to a financial agreement may only terminate it by:
   1. Including a provision to that effect in another financial agreement, or
   2. Making a written agreement known as a ‘termination agreement’.
2. Financial and termination agreements can be set aside under s90Kor 90UM:-

Article Source:  binding financial agreement

Child Custody | what does child support cover?

 

Aylward Game Solicitors Incorporating James Noble Family Law Brisbane is an Accredited Specialist Family Lawyer with Queensland Law Society.

Breaking up or separating is a traumatic and difficult time for any adult. But for couples with children, often the first thought is of the impact it will have on the children. The second thought is almost always to wonder what the law says about parenting arrangements and how the separation will affect future contact with the children. At all times, you should be fully informed about your legal rights and position as well as those of the children involved.

If you are separating obtain full details about the parenting of your children, your rights, and obligations. For more information please visit our blog on Child Custody.

At Family Law, our team can talk you through the underlying legal principles and explain what confusing terms such as equal shared parental responsibility, and significant and substantial time mean for you and your children in practical terms. We’ll guide you through all your options to finding parenting solutions that work for you and your partner.

We’ll tell you what steps you need to take and when you need to take them. We’ll also let you know what you should avoid so you don’t compromise your legal rights. When necessary, we’ll take steps to obtain you legal protection in situations involving family violence.

If you would like to read the relevant sections of the legislation in regard to Divorce Property Settlement please go to the Family Law Act.

Please reference Sections 60 – 70 inclusively.

know which state has the highest recorded Divorce Rates in Australia?

We support you with representation, advocacy, mediation, or collaboration to help you to attain your best outcome regarding parenting, division of assets, and spousal maintenance as painlessly and inexpensively as possible.

Family Law offers a free 20-minute initial Legal Options appointment for new clients.

This appointment allows you to discuss your situation with complete confidentiality and without any obligation.

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• Family Lawyers Brisbane
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Article Source:  Child Custody

Separation And Divorce | Divorce Lawyers Brisbane

Many couples separate and can agree on what they wish to happen in relation to a distribution of the asset pool (property settlement) and if there are children, the arrangements that they wish to put in place for the children’s future.

When couples are in agreement the options for formalising the property settlement and arrangements for the children are:

• Consent Orders
• Parenting Plan
• Financial Agreement

These options are discussed in more detail under the children and financial issues sections of this booklet.

WHAT HAPPENS IF COUPLES ARE UNABLE TO AGREE ON FINANCIAL AND CHILDREN’S ISSUES?

There are a number of ways to resolve diffences after a relationship has broken down.

1. Counselling
2. Collaborative Practice
3. Mediation
4. Family Law Litigation

1. Counselling

Counsellors can help you to work through problems after the breakup. You can find qualified counsellors in private practices, as well as in government and community-based organisations.

Counselling works best if you and your partner attend sessions of your own free will. However, if you and your partner go to the Family Court, you may be ordered to attend Counselling before a decision is made by the Court.

If Counselling does not prevent your relationship from breaking down it can still help with resolving emotional issues that result from the separation. It is a good idea to shop around to find a counsellor with whom you feel comfortable and confident.

2. COLLABORATIVE PRACTICE – THE NEW ALTERNATIVE TO LITIGATION

Collaborative practice is a popular dispute resolution method developed in the United States in the early 1990s. It has gained rapid popularity in the United States, the United Kingdom, and Canada. Now Collaborative practice is available to help people in Australia

Benefits of Collaborative Practice

• You have the benefit of being advised and supported by your lawyer at all times.
• The outcomes are generally faster than traditional negotiation methods and most certainly quicker than court outcomes.
• The outcomes are certain and long-lasting because they are owned by you as you assisted in creating the outcomes.
• The process promotes co-operation in the future, particularly where long-term investments are involved.
• Resolutions are reached in a dignified and respectful way.
• The outcomes are often tailor-made and more creative providing fairer settlements. 

The collaborative practice may be suitable for you and your partner if both of you: 

• Wish to spare your children from the emotional damage litigation can cause.
• Accept personal responsibility in moving forward and reaching an agreement.
• Believe it is important to create healthy and more holistic solutions for your future.
• Understand and embrace the necessity to make full and frank disclosure about financial issues.

The collaborative practice may not be suitable for you and your partner if either of you:

• Have a primary aim to seek revenge against your former spouse or partner.
• Are looking for a “soft option”.
• Believe the procedure will pressure your spouse or partner to agree to your wishes.
• Want to avoid giving certain financial information to your spouse or partner.
• Where your relationship has experienced domestic violence or any form of abuse. If this is the case, the lawyers will first have to determine whether Collaborative practice is appropriate. It may be that other professionals are required to be involved to assist and support you through the process and to ensure that your interests are promoted and protected.

Make your own decisions

The Collaborative approach will enable you and your partner to resolve your issues respectfully so that you can arrive at dignified solutions to your dispute with your partner and maintain a sound relationship with each other in the future, especially if long-term financial interests are involved. In the Collaborative practice process, emphasis is placed on reaching an agreement, rather than having to ‘battle it out in Court’.

Commitment to the non-confrontational dispute resolution

In the Collaborative practice, you will be asked to sign a Participation Agreement so that you demonstrate your commitment to resolving your differences with your partner in a respectful manner, with full and frank disclosure of information, and with a minimum of conflict. Open communication will build an environment of trust. This trust will help you, your partner, and both of your lawyers to work together in finding workable solutions to your dispute.

In Collaborative practice, you and your partner and your lawyers will work together to share information and to arrive at solutions through a series of meetings. Your lawyer will never negotiate deals without your active participation. A major benefit of Collaborative practice is that you and your partner can each contribute to the compromised agreements that you make together, instead of having to settle with a decision imposed upon you by the Court.

Total ‘out-of-Court’ settlement with Collaborative practic 

At the commencement of the collaborative process all parties and their lawyers will enter into a Participation Agreement. Pursuant to the terms of the Participation Agreement the parties agree that they will not litigate their matter in the Family Court. This means that if either you or your partner decides to commence proceedings in Court and continue with such proceedings during the collaborative process, your collaborative lawyer will not be able to represent you in the collaborative process they will only be able to refer you to another trusted practitioner to handle your Court case.

How does it all work?

Collaborative practice is different from going to Court. You will be in a room with your lawyer as well as your partner and their lawyer. Both lawyers will be properly trained in the collaborative approach. We all work together towards the common goal of resolving the dispute between you and your partner, with emphasis on retaining your dignity and best interests.

You will have your collaborative lawyer advising and assisting you throughout the negotiations. The playing field will be more even between you and your partner, because you and your partner will have your respective lawyers to support you, as well as other professionals if necessary and with your consent.

The integrated approach of Collaborative practice

Collaborative lawyers often work with other professionals, such as accountants, financial planners, valuers, counsellors and mental health professionals, who are trained in the collaborative approach. These people will work together with your collaborative lawyers with your consent with a focus on developing an overall dispute resolution package that will provide both you and your partner with security and direction.

Note: In Collaborative practice, your lawyer and your partner’s lawyer will draft your agreement in legal terms.

3. MEDIATION

Overview of Mediation

Mediation is a voluntary process, but the Family Court may order that you and your partner participate in mediation, depending on your circumstances. Only you, your partner and the Mediator will be part of the Mediation process. Depending on the level of conflict and personal dynamics of the relationship between you and your partner two Mediators may be necessary.

Role of the MediatorIf the Family Court orders mediation or you and your partner agree, you may be allowed to have your lawyer present in the mediation. The Mediator’s role is to assist communication between you and your partner so that you can have open discussions and negotiate a settlement.

The Mediator’s aim is to facilitate open communication between you and your partner so that you can:

• identify issues of the dispute;
• generate options to address these issues; and
• agree upon ways to resolve the issues (i.e. ‘settlement’).

The Mediator’s role is essentially a neutral one.  The Mediator:

• will not take sides;
• will work with both you and your partner to help you negotiate your own decisions together; and
• will not represent either of you in Court either before or after the Mediation.

Characteristics of Mediation

• All decisions in mediation will be made by you and your partner, not the Court or anyone else.
• Mediation will help you to identify important issues that relate to your assets and finances and/or care arrangements for your children.
• Mediation is readily accessible, making it fast and efficient.
• Mediation is a popular form of alternative dispute resolution.

THE MEDIATION PROCESS

1. Fact finding and isolation of issues

At this stage the Mediator will obtain from you as much relevant information as possible, identifying the issues to be discussed and identifying any underlying conflict which may be associated with such issues. The issues will deal with such matters as property, financial assistance and the children.

Once the issues have been identified, the Mediator will then establish an agenda setting out the order in which the issues should be dealt with and which you believe would be the most appropriate way of dealing with such issues.

2. Creation of options and alternatives

At this point, you and your partner will be looking at all the options and alternatives which could apply and which could be of assistance in resolving the issues which have been identified. By dealing with the options and alternatives, you will determine the most effective way of dealing with each issue. At this time, the Mediator will encourage you to be as creative as possible in setting up these options and alternatives.

3. Negotiation and decision-making

At this point, you will be:

1. Choosing options which you can best live with;

2. Ensuring that you fully understand the details and implications of each proposal and what their consequences will be for you. This stage of the process may extend over one or two sessions. As you could imagine there will be a lot of discussion at this point in reaching agreement on those options and alternatives.

4. Clarification of agreements reached

Hopefully, agreements will be reached on issues which have been isolated and discussed, and the Mediator will then prepare a written draft setting out your concerns, intentions, the facts agreed and decisions which have been reached. The agreement can also deal with your future dealings and relationships.

5. Review of Process

At this point you can look at the matters that need to be made legally binding and determine the future review procedures required, if any.

6. Implementation stage

This really speaks for itself in that the agreement is then put into practice.

What is the difference between Collaborative Practice and Mediation?

Mediation involves an independent neutral professional who facilitates discussions between the parties and helps them to reach an agreement. The Mediator does not provide legal advice to either party during the discussions.

In Collaborative practice, the lawyers provide advice to their clients and help them assess realistic options. The lawyers then support the clients through the negotiation process to reach an agreement.

Costs associated with the Collaborative Practice and Mediation

• Initial consultation with your lawyer.
• Assistance of the lawyer to complete a short history statement, if necessary.
• Assistance of the lawyer to provide full disclosure of documents, if necessary.
• Attendance by the lawyer in the Mediation session and in the Collaborative meetings.
• Attendance by the lawyer in the Mediation, or throughout the entire collaborative process.
• Preparation of consent documents by the lawyers.
• Involvement of the lawyer throughout the collaborative process.

Other information relating to costs of Collaborative practice and Mediation

• Discussions and agreement on the payment of the fee.
• The fee may be a shared arrangement.
• The costs of the Mediator will be agreed prior to the commencement of the process.
• Because of the short duration for the preparation for attending on and completion of the Mediation and Collaborative practice processes, the costs are limited.

Cost of Collaborative practice Mediation compared to Litigation

Because Mediation and the Collaborative process resolve matters speedily and amicably, the financial and emotional damage normally caused by Litigation will be avoided by you, your family and your friends.

Mediation and Collaboration will also serve to minimise conflict between you and your partner, so that you can make amicable decisions regarding your finances and other personal interests. It will form a basis for your ongoing relationship with each other.

How is Collaborative practice different from traditional Court proceedings?

When one party commences Court proceedings they file an Application with the Court setting out the orders they want the Court to make. Both parties then go through a sequence of Court proceedings and conferences and hearings that can take many months or possibly years before they have a final trial where a Judge makes a decision as to what orders will be made.

Through Collaborative practice, separating couples and their lawyers work together, sometimes with other professionals such as relationship therapists, valuers, accountants and financial planners, to find out what each party wants and how that can be achieved. The Court is not involved in this process and no documents are filed with the Court whilst the negotiations are ongoing. If an agreement is reached, the parties can elect for it to be drafted as a consent order to be lodged at the Court or to be incorporated in a binding financial agreement.

Don’t be frightened to make enquiries and conduct your own research. It is better to be empowered with legal and other knowledge than to worry about problems that may not exist.

Invitation: You are welcome to arrange an obligation free 20 minute consultation with one of our qualified lawyers, to discuss your circumstances.

Efficiency of Collaborative practice and Mediation

Dispute resolution via Mediation or Collaborative practice can be arranged in a timely manner and satisfactory outcomes can be reached relatively quickly. With either method, negotiations usually take place either over a number of sessions, or during one day, depending on the complexity of the dispute. By using either Mediation or Collaborative practice settlements can usually be reached after 6 to 8 hours of negotiation. Sometimes, Collaborative practice may take longer depending on the complexity of the dispute and whether other support professionals need to be consulted.

4. Family Law Litigation

Overview

Family Law exists to deal with legal issues resulting from separation. Our principal Ian Field is an accredited Family Law Specialist. We can provide you with advice that will empower you with knowledge of your legal rights and obligations following the end of your relationship. Our advice to you can also assist you in negotiating a settlement with your partner because you will have better knowledge of how to effectively deal with your partner’s needs and requests.

Family Court of Australia

The Family Court of Australia is the final resource available to you to reach settlements on issues in dispute. The Family Court is conscious of the expense involved in resolving issues and the emotional turmoil that is normally associated with the breakdown of a relationship. The Family Court will make orders on matters requiring urgent attention.

Financial issues relating to marriages can be brought before the Family Court:

• at any time after separation; and
• up to 12 months (1 year) after the granting of the divorce.

Financial issues relating to de facto relationships can be brought before the Family Court within a period of 24 months (2 years) after a separation of the relationship.

the matter is urgent;Parties who wish to make an application in relation to children’s issues (other than an Application for Consent Orders) must first participate in family dispute resolution in an attempt to resolve the care arrangements in relation to children. A party must file a mediation/counselling certificate together with their application for children’s orders unless one of the following circumstances apply:

• one or both parties are unable to participate in family dispute resolution;
• there has been or is a risk of family violence by one party of the parties; and
• there is a risk of abuse of a child/children by one of the parties.

The Federal Circuit Court

The Federal Circuit Court offers a Court system parallel to the Family Court. This Court also has other federal jurisdiction, including bankruptcy. It combines its federal jurisdiction with family law matters

The purpose of the Federal Circuit Court is to provide a faster, less expensive and less complex option for litigants and also to ease the workload of the Family Court. This allows the Family Court to focus on complicated matters that require the attention of a superior Court Judge.

The use of conciliation counselling and mediation will be strongly encouraged in appropriate cases, using both community-based counselling and mediation and the Family Court services.

The Federal Circuit Court shares its jurisdiction with the Family Court and the Federal Court. The Federal Circuit Court legislation includes provisions that enable Federal Circuit to develop procedures that are simple and as efficient as possible, including power to make rules to set time limits for witnesses and to limit the length of both written and oral submissions.

Costs of Proceedings in the Family Court or the Federal Circuit Court

Normally, each party pays their own costs associated with the Court proceedings. In some instances, a party may seek a ‘Costs Order’ against the other party in their application brought before the Court.  The Courts do have discretion to award costs against the other party in certain circumstances.

Costs may be awarded where the proceedings that have been instituted are frivolous or for some other reason the party was unreasonable in opposing or bringing applications. Costs are awarded on the actual work relating to the Court proceedings and are based on the Family Court scale, at the discretion of the Court or an indemnity basis.

Fact: An overwhelming majority of cases are resolved by agreement between parties. Historically, only 4% of matters in the Family Court have required a judicial decision.

 

Marriages Families and Separation factsheet

Link to the Queensland Collaborative Law website

http://qcl.org.au/

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Article Source: Separation And Divorce