Author: Craddock Murray Neumann Lawyers
Publish Date: Nov 15, 2009
In every financial settlement after the breakdown of marriage or de facto relationship, a four step mythology is used to determine the entitlements of each party.
Step one involves determining the balance sheet. In this process each party is required to make a full and frank disclosure of their financial circumstances. Any interest that each party has in real and personal property, whether held individually, jointly, or with a third person is included and then valued. The liabilities of the parties are determined, together with what superannuation interests the parties have. Once all this has been identified and valued, then the total net value of the pool of assets is settled, and this is what there is for division.
The second step involves determining on a percentage basis for each party what their contributions have been. This is not a strictly mathematical exercise, because of the requirement to consider both the financial and non financial contributions of each of the parties. In every case this will involve taking a history from each party as to the various contributions towards the assets. The starting point will be looking at what assets each party brought into the relationship, and then tracing how parties got from that starting point to where they are at the current point in time.
The third step involves asking whether either party is entitled to an additional percentage for any reason. If so, it is then a question of what additional percentage of the net assets that party will be entitled to receive.
At the final step the percentages assessed at steps two and three are added to determine the overall percentage of the net assets each party will be entitled to receive. It is then a matter of determining how to allocate the net assets such that each party receives their percentage entitlement and that the assets and liabilities are no longer held in joint names. This may involve either a transfer of assets from one party to another or a sale of assets and the division of the net proceeds of sale.
What parties often do not understand or appreciate is they are not entitled to a wish list. If a division of the net assets is proposed, then the outcome ought to be justified having regard to the four step methodology. In other words, if a settlement proposal is made, then you need to be able to demonstrate an entitlement to that.
For assistance with Family Law matters, phone Dominic Wilson, Managing Partner of Craddock Murray Neumann, on (02) 82684000. We have Family Lawyers
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The Family Law Act 1975 has now been amended to allow opposite-sex and same-sex de facto couples access to the federal family law courts for property and maintenance matters.
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Craddock Murray Neumann Lawyers
A new Bill proposes additional protection to de facto couples under the Family Law Act for property and maintenance matters.
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Australia is party to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the Hague Convention).
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Family dispute resolution involves people affected by separation and family breakdown. Dispute resolution is about coming together to talk about differences and trying reach agreements. This can be conducted with all family members present or separately.
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Historically, the Commonwealth made laws dealing with marriage relationships, whereas the various States and Territories had the power to make laws dealing with matters arising out of the breakdown of de facto relationships, including parenting and financial issues.
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Legally, an application for an annulment of a marriage can only be based on the ground that a marriage is void. A marriage is only void if one of the following scenarios applies...
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Parenting orders are enforceable arrangements that deal with the welfare of a child. Orders can be made by the courts, however, the desirable outcome is for the parties to reach an agreement without the intervention of the legal system. If the separating parties are unable to resolve their issues, the courts will intervene.
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Under the Family Law Act, parties to a marriage or de facto relationship may enter into a financial agreement to make provision for their financial arrangements during the course of their relationship, and for financial settlement upon the breakdown of their relationship.
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It’s not unusual to hear of the rich and famous before a marriage, enter into a prenuptial agreement with their spouse. If a person has substantial assets to protect, it’s probably not a bad idea to have a prenuptial agreement in place in the event of a relationship breakdown. In Australia, prenuptial agreements are more commonly referred to as binding financial agreements, and a valid agreement can oust the jurisdiction of the courts.
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The Full Court decision of Black v Black (2008) 38 Fam LR 503 (“Black v Black”) on financial agreements continues to impact on family law decisions being cited in the recent Federal Magistrates Court decision of Fitzpatrick & Griffin [2008] FMCAFAM 555 (“Fitzpatrick & Griffin”).
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Craddock Murray Neumann Lawyers
The Full Court decision of Black v Black (2008) 38 Fam LR 503 (“Black v Black”) on financial agreements continues to impact on family law decisions being cited in the recent Federal Magistrates Court decision of Fitzpatrick & Griffin [2008] FMCAFAM 555 (“Fitzpatrick & Griffin”).
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If you have reason to believe this will occur you should send a copy of the injunction order to the Federal Police and ask that your child's name be placed on the Airport watch list.
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When a family is blessed with some wealth, it is not uncommon to find a family trust involved. A trust is an arrangement where assets are held in the name of a trustee on behalf of named beneficiaries. The trustee is not in fact the `real' or beneficial owner. A family trust is usually what is known as a discretionary trust.
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A Paper presented by Craddock Murray Neumann on the Changes to De Facto Relationship Law.
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Craddock Murray Neumann Lawyers
Sometimes when a mother changes her surname or remarries she wants to change her child’s surname as well. If the child’s father agrees to the change in surname, it can go ahead. However, if the father does not agree to the change in surname the mother would need to make an application in the Family Law Courts for permission to change the surname.
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Upon the breakdown of a relationship where there are children, if the parents are unable to reach agreement between themselves as to the parenting arrangements for the children, then there is a requirement to participate in mediation prior to contemplating any Court proceedings.
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Craddock Murray Neumann Lawyers
Overview of Child Support Agreements following the breakdown of marriage.
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Parents have a legal obligation to financially support their children. When a child’s parents have separated, or have never lived with one another, they are entitled to pursue arrangements for their child’s financial support. Most often the parent with the primary care of a child will initiate the process to seek child support from the other parent.
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Assessments of every parent who pays or receives child support, even if private arrangements are in place, are currently underway in preparation for the new Child Support Scheme, which commences on 1 July 2008. The General Manager of the Child Support Agency, Matt Miller, has asked parents to check their details carefully because a new formula will be used to calculate child support payments.
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December is not busy just in department stores, it is a hectic time in the Family Law courts. For judges, Federal Magistrates and lawyers, December is the month where much time is spent working out where children will spend their Christmas when their parents cannot work it out. The number of cases with this issue outstanding before the Courts is so high, that the courts usually require Christmas cases to be filed no later than mid November.
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For years de facto couples who separated with children faced the nightmare of having to use two different legal systems. Problems about their children were dealt with in the Family Law system, under Commonwealth law, while disputes about financial matters were resolved in State courts. In addition, the entitlements of - usually - females were substantially less than their married counterparts, and superannuation benefits could not be divided.
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Craddock Murray Neumann Lawyers
The recent case of Dart v Graham [2008] FamCA 824 dealt with the issue of a father seeking permission to take his children on an overseas holiday to Bali, Indonesia for his wedding. The mother of the children opposed the children travelling to Bali due to advice issued by the Department of Foreign Affairs and Trade (DFAT) warning travellers to Indonesia that the country has risks associated with it and that careful consideration should be given to the need and desirability of such travel.
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In 2008 legislation was passed to amend the Family Law Act 1975 to allow de facto couples (opposite sex and same sex) to access the federal family law courts for property and maintenance matters.
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Craddock Murray Neumann Lawyers
FrA divorce in Australia simply ends the marriage formally. To obtain a divorce either spouse, or both jointly, can apply to the Federal Magistrates Court for a divorce order. This will not deal with the parenting arrangements for children, or the division of property, which are dealt with separately and in isolation.
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Some clients will say to their Family Lawyer, “I don’t want a divorce, I want my marriage annulled”. Usually this has to do with a religious belief. The law does allow for a court to declare a marriage a nullity, although such applications are not common. This is because the grounds to annul a marriage are quite limited.
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Numbers of clients will say to their Family Lawyer, “I don’t want a divorce, I want my marriage annulled”, and usually this is to do with a religious belief. The law does allow for a court to declare a marriage a nullity, although such applications are quite unusual. No doubt this is because the grounds are quite limited.
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In Australia couples who are considering living together, as a de facto couple (whether same sex or heterosexual) or are considering marriage have the option of entering into an agreement to protect their assets in the event they separate. This agreement can protect not only assets in existence now, but also assets the parties purchase throughout the relationship.
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Unfortunately in Australia many men and women are subjected to violent behaviour from their spouse or their de facto partner. Often victims are reluctant to come forward and report instances of domestic violence for fear of further violence from their spouse or for fear of criticism or judgement from the wider community. In recent times the family Court has obtained a deeper understanding of the types of violence and impact that domestic violence can have.
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In some family law matters the parentage of a child is in issue. The law enables the Court to make an order requiring a parentage test to be carried out to help determine the child’s parentage.
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In the case of Beckett & Horan [2008] FMCAfam 1427 the issue of permitting a witness under 18 years of age to give evidence in family law proceedings was raised. The proceedings in question concerned both parties seeking parenting orders. An application was made by the mother to adduce evidence from Ms. S, a non-relative aged 17 years of age. Counsel for the father objected to the evidence being adduced on the grounds of s 100B of the Family Law Act 1975 (Cth).
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In the 2008 case of Beckett & Horan the issue of permitting a witness under 18 years of age to give evidence in family law proceedings was raised. The proceedings in question concerned both parties seeking parenting orders. An application was made by the mother for a non-relative aged 17 years of age to give evidence. Counsel for the father objected.
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If you are in dispute with your partner regarding the care arrangements for your child you are required, by law to engage in what is called Alternative Dispute Resolution.
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Legislation has been introduced into parliament that, if passed, would amend the Family Law Act 1975 to allow de facto couples (heterosexual and same sex) to access the federal family law courts for property and maintenance matters.
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Relationships that have come to an end, whether the parties were part of a marriage or a de facto coupling, are always difficult. Additionally if there are further issues relating to finance, the situation can be even more fraught – especially if one of the parties is in a weaker economic position. The Family Law Act (the Act) allows a party to a marriage or de facto relationship, to financially maintain the other party to the extent that they are reasonably able to do so, if one of the parties cannot support him or herself adequately. The courts then can decide to issue a maintenance order however, the Act mandates that certain requirements must be met before an order can be issued.
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The Family Law Act is a long and often complicated piece of legislation. Since it first came into force in 1975, it has been amended on many occasions and is now nearly twice as long as it first was. The area of Family Law is also affected by the Child Support laws and by laws regarding domestic violence. Some of the terminology has changed over the years and in this newsletter we shall look at some definitions and words used in this area of the law.
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Discussion Notes.
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Often, especially in long relationship, one party is the traditional ‘breadwinner’ while the other stays home to care for children, or to maintain the home. The primary homemaker may only work part-time, or may not work at all. So what does this mean if the couple separate? What does each party get?
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Financial settlements in both marriage and de facto relationship cases have been dealt with on the same basis since March 2009.
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The purpose of a financial settlement is to bring to an end the financial relationship between the parties, by dividing and allocating their net assets, so that nothing is left in joint names.
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Married couples, and now de facto couples, have a legal obligation under the Family Law Act to provide financial support to one another. If that financial support is not forthcoming, then either party to a marriage or de facto relationship is entitled to apply to a Court for orders that the other party pay maintenance to them.
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Parentage tests determining the parent of the child may be needed for Family Law matters such as child support payments, custody, access, inheritance and adoption. But with these matters, more matters arise including questions about processes and legal requirements.
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In 2006 a grandparents right to contact with their grandchildren was finally recognised in the Family Law Act. Before this the word “grandparent” was not mentioned in the Act in relation to any rights to maintain a relationship with their grandchildren on the breakdown of a marriage.
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In Australia, many parents make arrangements for their children to spend time with grandparents and other family members on a regular basis without thinking much about it. If everyone lives close to each other this might be weekday dinners, Sunday lunch, picnics, after school care or other child minding.
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Australia has many residents with family ties overseas, and we are also a nation of travelers. It is not surprising, therefore, that taking children overseas can often become an issue between separated parents. If the parents cannot agree, a court will make the decision, and the decision will be based on what is best for the child.
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Domestic violence is commonly thought of as physical abuse. However, it can also include other conduct such as sexual, emotional or psychological abuse.
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A small minority of family law cases require a decision from the Court, whether it involves parenting or financial issues. Where there is a different version of facts given by each party, one of the tasks of the Judge hearing the case is to make findings of fact. In other words, which version of events does the Judge believe to be the correct version.
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Some of us upon hearing the terms, ‘divorce’, ‘property’, ‘financial’ and ‘dispute’, will probably conjure up images of emotion charged court proceedings where one party is left desolate, while the other takes off with all of the matrimonial property and assets. However, the truth is rather more benign and most divorces don’t actually end up in court, and the parties more often than not, will reach some sort of agreement. Furthermore, the law encourages that parties whose union has come to an end, engage in the mediation and conciliation process – and in most instances, it is mandatory to do so.
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If a person contravenes an order by acting illegally or by breaching the order intentionally, or the person has made no reasonable attempt to comply with the order, they can then be found to be in contravention of the order, and in such a circumstance the order can be varied or they can make a contravention application.
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Consider this example: John and Jill have been married for 10 years and have recently separated. Around 2 years ago Jill’s father died and Jill received an inheritance of $100,000. These monies were deposited into a joint bank account and have been used by the parties to assist in the purchase of a property. Now that the relationship has broken down what becomes of Jill’s inheritance?
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When couples separate, they typically need to sort out how to divide their property. This includes both assets and debts. There are a number of ways this can be done. Parties can agree on how to divide their property without any court involvement. These kinds of agreements can be formalised by the court by applying for a consent order, but they do not have to be. Where parties cannot agree on their own, it is possible to apply to the court for a financial order. Financial orders can relate to the division of property and the payment of spousal maintenance.
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A n agreement between the Commonwealth and States and Territories to administer and improve intercountry adoption in Australia exists.
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The Northern Territory is set to become the first place in Australia where it will be illegal not to report incidents of domestic violence. The new laws to protect women and children from family violence were introduced into state parliament on 26 November 2008, and will be debated in the February sittings.
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In 1961 the Commonwealth Government enacted the Marriage Act, which set out the various requirements before a marriage in Australia, either religious or secular, is valid. It also dealt with other issues including when marriages are void, and Australia’s obligations under the Hague Convention on Celebration and Recognition of the Validity of Marriages.
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The new child support formula is part of the overhaul of the Child Support Scheme implemented a few years ago.
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Craddock Murray Neumann Lawyers
A new agreement between the Commonwealth and States and Territories to administer and improve intercountry adoption in Australia has been signed.
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As of 1 March 2011, it is an offence in NSW to enter into commercial surrogacy arrangements. The Surrogacy Act 2010 came into effect on the 1st March this year, making it illegal to begin commercial surrogacy arrangements after that date, however, regulations to be made under the Act do make provision for those who entered written agreements before that commencement date.
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This month saw the opening of the NSW Relationships Register. As from 1 July 2010, unmarried couples are now able to prove their committed or de-facto status by registering. Paperwork will be simplified and one document ascertaining to the relationship will be issued and can be used across a range of government agencies. The register will allow couples to be recognised on par with de-facto status and relationships will be considered as such.
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The 2008 case of Dart v Graham dealt with the issue of a father wanting to take his children on an overseas holiday to Bali for his wedding. The mother opposed the children travelling to Bali due to advice issued by the Department of Foreign Affairs and Trade (DFAT) warning travellers to Indonesia that the country has risks associated with travelling there.
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For many years de facto couples who separated with children faced having to use two different legal systems. Problems about their children were dealt with in the Family Law system, under Commonwealth law, while disputes about financial matters were resolved in State courts. In addition, the entitlements in financial cases were less generous for a financially disadvantaged party than in marriage cases, and superannuation benefits could not be divided.
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Craddock Murray Neumann Lawyers
The law in Australia now enables a Court to make parenting orders in favour of any of the following people:
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Once partners separate, family obligations are always an uncertain matter. But the one constant obligation is parents' duties to support their children. However parents and non-parent carers don't always feel supported by the information available in knowing their rights and obligations under the child support system.
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Australia's Child Support system has been in force for about twenty years now, so most separated parents have experienced it. In summary, it requires one parent (the liable parent) to pay the other an amount of money calculated by a formula.
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Parents who abandon their children for an “unreasonable amount of time” could face up to 3 years in jail, under suggested amendments to the Queensland Criminal Code.
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Craddock Murray Neumann Lawyers
Upon the breakdown of a marriage one of the issues that needs to be addressed is a financial settlement. This involves dividing the assets, liabilities and superannuation of the parties whereby each party is allocated their share of the net assets, with the end result that none of the assets and liabilities are held in joint names.
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If you are involved in family law property proceedings and the other party to the marriage or de facto relationship goes bankrupt it will affect the way in which the Family Court is able to deal with the proceedings.
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Frequently asked questions in relation to Property Settlement Agreements.
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In every financial settlement after the breakdown of the marriage, a four step mythology is used to determine the entitlements of each party. When lawyers give advice to clients as to their entitlement or likely settlement, they have an obligation to do so based how they think the Court may apply the four step mythology given the information and instructions provided by the parties.
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Domestic violence is commonly thought of as physical abuse. However, it can also include other conduct such as sexual, emotional or psychological abuse.
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In 2006 significant amendments were made to the Family Law Act dealing with children’s issues after the separation of parents.
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For those people in a same sex relationship who have married one another in a civilised country where same sex marriage is available, and reside in Australia, what happens if your relationship irretrievably breaks down? Can you apply for a divorce in Australia? The simple answer no.
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The Mainstreaming of Same Sex Relationships – Becoming Parents” – in this paper Paul Boers examines the options available for same sex couples wishing to start a family, including IVF/donor insemination, co-parenting arrangements and surrogacy; of who is a “legal parent” within each arrangement; and of how parental responsibility may be acquired. This paper was originally written for the College of Law, and has been recently updated after a decision in the Family Court of Australia concerning a surrogacy arrangement in the matter of Re Michael: Surrogacy Arrangement.
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The Federal Government has introduced legislation that aims to remove the discrimination against same-sex couples currently present in Acts governing Commonwealth superannuation schemes.
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The Federal Government has introduced legislation that aims to remove the discrimination against same-sex couples currently present in Acts governing Commonwealth superannuation schemes.
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The Commonwealth government removed discrimination against same-sex couples in more than 100 pieces of federal legislation in 2008.
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The Rudd government removed discrimination against same-sex couples in more than 100 pieces of federal legislation, following through on their election promise one year ago.
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The general rule is that everyone should be able to enforce their rights in the Courts – poverty should be no bar to justice.
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When the Family Law Act 1975 (Cth) was amended in 2006, it introduced the concepts of “equal shared parental responsibility”, “equal time” and “substantial and significant time”. Until the High Court of Australia decision in MRR v GR, [2010] HCA 4, the relationship between these concepts was unclear in relocation cases.
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Spousal maintenance is the responsibility of one party to a marriage to financially support the other person after separation or divorce.
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When considering what amount of spouse/de facto maintenance a party is entitled to receive, or may be required to pay, the starting point is to complete a Financial Statement document as accurately and as truthfully as possible.
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Parties may also be entitled to a stamp duty exemption if the Court makes Orders requiring a transfer of property.
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Most working Australians have some superannuation and for many their superannuation can be quite a substantial part of their financial future. Before 2002, dealing with superannuation entitlements often posed problems in family law financial settlements because there was no ability to divide them. The outcome usually was that the husband (usually the one with the greater super) would get a lesser share of the other property to compensate for his greater share of the super.
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Most working Australians have some superannuation and for many their superannuation can be quite a substantial part of their financial future. Before 2002, dealing with superannuation entitlements often posed problems in family law financial settlements because there was no ability to divide them. The outcome usually was that the party with the greater superannuation would get a lesser share of the other property to compensate for the other party not being able to access the greater superannuation fund.
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Surrogacy is an arrangement whereby a couple wishing to have a child (“the intending parents”) commission a woman, whether partnered or otherwise (“the surrogate mother”) , to conceive the child and then surrender the child to the intending parents after birth. The intention of this arrangement is that the intending parents will raise their child as their own.
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With Queensland introducing new surrogacy laws in 2010, altruistic surrogacy has become legal throughout Australia. However, a lack of uniformity with regard to individual State’s legislation means that intended parents can become confused. This is compounded by the impact of Federal laws, particularly immigration laws, on overseas surrogacy and has caused many parents to be held up in foreign countries awaiting immigration papers for their child.
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With Queensland introducing new surrogacy laws in 2010, altruistic surrogacy has become legal throughout Australia. However, a lack of uniformity with regard to individual State’s legislation means that intended parents can become confused. This is compounded by the impact of Federal laws, particularly immigration laws, on overseas surrogacy and has caused many parents to be held up in foreign countries awaiting immigration papers for their child.
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Craddock Murray Neumann Lawyers
In Taffa v Taffa [2009] FamCA 85, the wife made an application for divorce. The husband disputed the application for divorce on the basis that they were divorced in Lebanon on 24 November 1998 by the Jaafarite Canonical Court. The decision of whether the wife's application for divorce could proceed in the Family Court was dependent upon whether the Court recognised the divorce granted in the Lebanon court.
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Australia has many residents with family ties overseas. It is not surprising, therefore, that taking children overseas can often become an issue between separated parents. If the parents cannot agree upon whether a child can travel overseas with one of the parents, a court will make the decision, and the decision will be based on what is best for the child.
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In Australia it is possible to make Pre-Nuptial Agreements under the Family Law Act 1975 (Cth) ("the Family Law Act").
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Craddock Murray Neumann Lawyers
Under the Commonwealth Constitution, the Federal government has the power to make laws with respect to marriage. As such, the various States and Territories historically were left with the power to make laws dealing with matters arising out of the breakdown of de facto relationships, including parenting and financial issues.
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When a family is blessed with some wealth, it is not uncommon to find a family trust involved.
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Craddock Murray Neumann Lawyers
There are a number of courts which can deal with matters under the Family Law Act, which covers both parenting and financial or property matters between couples, whether married, de facto or, in some parenting cases -parents who never had any ongoing relationship. Choosing the right court can save time, money or both, and the choice is one which family lawyers have to make all the time for their clients.
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If you are involved in a separation or divorce then you may have heard the terms “family counselling" or “family dispute resolution practitioner”.
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Family counselling is a process where a family counsellor helps people affected by separation and divorce to deal with personal and interpersonal issues in relation to the relationship or issues in relation to the care of children from the relationship.
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The Family Law Act is a long and often complicated piece of legislation. The area of Family Law is also affected by the Child Support laws and by laws regarding domestic violence.
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Craddock Murray Neumann Lawyers
We understand that it is often a very big step for people whose relationship has broken down to take that first step and approach a lawyer for advice. We consider the role of a family lawyer to be more than just explaining what the law actually says. Case management and management of the client’s needs, sadly seems to be underrated. However we take it very seriously.
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For almost all of us, our name is something which says who we are. Apart from being a bit like a personal identifier, it also can describe one's ancestry, one's ethnic background and whether we are married. Less so today, but in the past often immigrants would change their surname to an Anglo-Saxon name, and adopt an Aussie nickname for their forename. This certainly made spelling easier for those who had to deal with "those funny names", but also could signify an acceptance of their new society.
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In the 2009 case of Taffa v Taffa , the wife made an application for divorce. The husband disputed the application for divorce on the basis that they were divorced in Lebanon on 24 November 1998 by the Jaafarite Canonical Court. The decision of whether the wife's application for divorce could proceed in the Family Court was dependent upon whether the Court recognised the divorce granted in the Lebanon court.
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In late 2008 various States in Australia surrendered to the Commonwealth Parliament the power to deal with the financial aspects of the breakdown of de facto relationships.
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Craddock Murray Neumann Lawyers
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December is not busy just in department stores, it is flat out in the Family Law courts. For judges, magistrates and lawyers, December is the month of working out where children will spend their Christmas when Mum and Dad cannot work it out. Indeed, the workload is so high that the courts usually require Christmas cases to be filed no later than mid November.
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There are a number of courts which can deal with family law matters, whether parenting and/or financial matters between couples, whether marriage or de facto relationships. Choosing the right court can save time, money or both, and the choice is one which family lawyers have to make all the time for their clients.
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With well over a third of relationships failing, there will be very few Australians who do not know someone who has been through a separation, most of which will involve a sorting out of finances and property. Unfortunately for lawyers, that often means that someone who has separated will have been given advice by a friend, relative or workmate about what they should get.
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The Family Law Act prescribes that parents of children have parental responsibility, which is defined to mean all the duties, powers, responsibilities and authorities which, by law, parents have in relation to children.
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