Family law information by Legal Process category

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A privilege against self incrimination

The general rule is that a person cannot be compelled to provide evidence that would subject him to criminal or civil liability either under Australian or foreign law. This is called privilege against self-incrimination. Sec 128 of the Evidence Act 1995 provides the exception.

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A subpoena is a legal document issued by a court

A subpoena is a legal document issued by a court at the request of a party in the matter. A subpoena forces a person or business to produce documents or give evidence at a hearing or trial.

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Affidavit a way of givng evidence

Affidavit is a written statement setting out the relevant facts. It is used as evidence in the family or the federal circuit courts court. It must serve upon the opposing party.

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Affidavit-Contents of an affidavit

The contents of an affidavit will depend on what kind of case it is.The Family Court has an affidavit that must be used in interim parenting order applications and which may also be used for applications for final orders.

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Affidavits by witnesses

You may have heard the terms “affidavit” or “filing evidence using an affidavit”. If you are not familiar with court proceedings you might not know what an affidavit is, or how to prepare one for your case.

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An affidavit forms part of the evidence

Your affidavit should include all the evidence you use at the hearing. There are slight differences between preparing an affidavit for an interim hearing and a final hearing.

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An initial contribution in a short de facto relationship

The following case is an example of where an initial contribution in a short de facto relationship was given significant weight given the lack of "off-setting" contributions by the other party during the relationship.

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An injunction under the Family Law Act

An injunction is a court order making a person do, or refrain from doing, something. It is also commonly referred to as a restraining order (intervention order).

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Appeal procedures in the Family Court

For an appeal to be successful, the higher court must be convinced that the lower court judge made an error in his/her decision.

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Appealing against family court decision

Appeal Steps to be taken by trial judge when exercising discretion to allow an interim property settlement pursuant to s 79 or s 80(1)(h) of the Family Law

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Appeals process in family law

In an appeal you ask the Full Court to set aside a decision made by a trial judge or federal magistrate. An appeal is not a rehearing of the original dispute.

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Applying to the Federal Circuit Court

When you and your spouse cannot agree on parental arrangements for your children after separation or divorce, you have the option of applying to the Federal Circuit Court.

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Arbitration provides an alternative to fmily law litigation

Arbitration provides parties with property or financial cases an alternative to litigation and judicial decision. Parties who wish to undergo arbitration will sign an agreement to arbitrate and will stipulate in the agreement the guidelines for arbitration.

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Can I get a divorce in Australia

If you were married or are now living overseas, can you get a divorce in Australia?The answer is yes if you or your spouse are an Australian citizen. If neither spouse is a citizen, you may be able to file for divorce in Australia if either spouse is an Australian resident.

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Case appraisals are often used in property and financial disputes

Case appraisals are often used in property and financial disputes. The process involves the participation of an independent third party who is provided with all the relevant information and asking for an opinion on a likely outcome if the dispute should reach court action.

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Case assessment conference

If you apply for a financial order in a Family Law Court, you will probably need to participate in a case assessment conference.

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Challenging a Court decision in the Family Court of Appeal

An appeal may be filed to challenge a lower court’s decision. The appellate court may issue another order if it finds that the lower court committed errors.

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Change of name after divorce

A married woman who used her husband’s surname during the marriage can revert to her single name after separation or divorce. But then again, she may still keep her married name even after separation or divorce.

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Choosing the right court

If you need a divorce, a financial order, or parenting orders, you must apply to one of the two Family Law Courts. This article will help you understand the difference between the two courts.

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Closing address at the end of family law matter

The closing address happens at the end of the case. The applicant and respondent (and independent childrens lawyer, if there is one) can go through the main points of their case.

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Communicating with your family lawyer

Talking with your lawyer is not like talking with your best friend. Although you want to have open and easy communication with your lawyer, you must remember to stay focused on the issues your lawyer wants you to address.

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Compliance with financial orders

Applying for financial orders is altogether a different thing from enforcement of a financial order because do not automatically enforce financial orders. It would be great if the parties of their own accord would comply with the financial order.

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Complying with financial orders

In this article we will look at your options to force your partner to comply with a Property or Financial order made by the Court.

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Conciliation Conference family court

Conciliation is a process wherein participants, assisted by a third person called conciliator, identify issues in the dispute, develop solutions and options and endeavour to reach an agreement.

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Contempt of court orders

Contempt is a serious breach of court orders. Court orders are directions made by the court which must be followed.

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Contravention of court orders

Contravention is a breach of court orders. Court orders are directions made by the court which must be followed. Therefore, a contravention of these orders is when someone is not following orders made by the court.

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Costs in contravention proceedings that affect children

If the Court decides that a 'more serious' breach of an order has occurred, it must order costs against the person breaching the order, unless it would not be in the child's best interests.

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De Facto spousal maintenance

To be eligible for spousal maintenance, the applicant must show that he or she has lost their earning capacity as a result of the relationship, but that they are prepared to participate in training and further education to increase their ability to earn.

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Discovery-Property Settlement

A party preparing for his family law case, particularly property settlement, may avail of discovery methods. The most common discovery methods are depositions and requests for production.

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Discretionary trust and family law

A trust is an entity in which certain people are entrusted to hold assets for the benefit of certain people or entities. Various assets can be held on trust, including money, property and businesses.

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Divorce - legal advice for men

You have to wait at least 12 months after separation before you can file for a divorce. Either the husband or wife can complete the application or it can be done jointly.

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Do I need legal advice for a divorce

A lawyer will tell you your rights and assist you to reach an agreement with your ex-partner over children and property. He or she will also gather together any documents required on your behalf and present them to the court.

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Ending a child support agreement

A child support agreement may be ended by executing a new agreement that expressly provides for the liability in the previous agreement to end.

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Evaluating your family lawyer

In the best of cases, the relationship with your family lawyer will go well and you will not need to consider changing the scene. But it is the rule, not the exception, that things will not go smoothly in a contested divorce case. And you do need to keep evaluating how things are going..

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Family Dispute Resolution mediation Aussie Divorce

The FDR practitioner acts as a neutral or unbiased mediator at a meeting between him or her and the two parties concerned. The meeting usually involves the couple being jointly present, but they may be separated physically if there has been a proven history of violence in the relationship.

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Family dispute resolution section 60I

Family dispute resolution as refer in section 60I of the Family Law Act 1975 means trying to come to an agreement about your family arrangements, rather than going to court.

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Family Law Injunction Order

An injunction is a restraining order of the court to prevent a person from doing any act or thing. Likewise, it may also require a person to do an act or a thing. In the Family Court, a party may have to apply for an injunction for either financial or children’s cases.

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Family law rules of evidence

It is said that all other rules of evidence flow from this fundamental rule. The purpose of the fundamental rule is to only allow 'evidence' which tends to prove or disprove a fact in issue. Anything else is a hindrance, or even detrimental, to the deliberation process the Court is required to undertake.

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Future Needs Section 752 of the FLA

Section 75 (2) of the Family Law Act refers to the factors that the court needs to consider in determining property settlement disputes.

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Giving evidence in family court

Family Court hearings require the parties to proceedings to give evidence as a witness to help establish the truth of the claims being made.

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Going to the family court tips

Family Court is fraught with drama, passion, and emotions. However, the way you behave in court can directly influence the outcome of the case.

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Homemaker contributions

Homemaker contributions are the domestic duties performed by a party in a relationship. Homemaker contributions are always considered by the Court in a property settlement case.

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How do I file a response to an initiating application

An initiating application is a request for a court order to resolve a family law dispute. It is usually used to seek financial orders (governing property settlements and the payment of maintenance) or parenting orders (deciding where children will live and when or how they will spend time with the other parent).

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How does the family law Act deal with false allegations

If your relationship breaks down, you can apply to a Family Law Court for a financial order that will divide your property. This article explains how a court will decide that application.

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How to get evidence

The rules of evidence have an application in relation to 2 “hemispheres” so to speak. The first, the generic body of law which deals with the law of evidence applies universally in all jurisdictions and all courts in each jurisdiction.

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How to prepare an affidavit

An affidavit is an important piece of evidence in family law court proceedings. It is a written statement of the facts known to the complainant, respondent or witness.

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How to serve the application for divorce

Divorce application serving means that the documents must be delivered to your spouse, in accordance with court rules, at his or her place of work or home address.

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Initiating application response

The ‘Initiating application’ form and the ‘Response to an initiating application’ form are used for both the Family Court and the Federal Circuit Court.In the Family Court you can also use the ‘Application for final orders’ and ‘Response to an application for final orders’ which do the same as the ‘Initiating application’ forms.

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Injunctions under the Family law Act

Injunctions under the Family Law Act provide immediate relief to applicants who seek to restrain acts that are against their interests or safety.

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Lawyers to avoid

As you interview each lawyer, be on the lookout for the following characteristics that might indicate they should be avoided

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Less adversarial trial process LAT - children matter

The Family Court advocates for the less adversarial trial (LAT) process in its proceedings which is an alternative to the traditional and purely adversarial litigation model.

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Negotiate or litigate

Litigation as an option to resolving family law disputes. The benefits and the cost of litigation; common mistakes people make and what to look out for when deciding to litigate

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Negotiation is commonly practiced in family law

In negotiation, separated parties come together to discuss and try to resolve all or some of their issues. The Family Law Act requires that parties make a genuine effort in resolving their issues before going to court or in order to avoid going to court.

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Pre-action procedures in financial matters

Unless your matter falls into one of the exceptions to the pre-action procedures, these procedures are compulsory and costs orders may be awarded against you and your lawyer

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Preparation in a pre-trial confrence

Pre - Trial Conference provides another opportunity for all the parties to negotiate and amicably settle their case. Parties may set their demands and ventilate their concerns before the Registrar who is the authority that will mediate between the parties in a Pre-Trial Conference.

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Presenting evidence in a family law court

If you apply for a financial order or a parenting order and are given a contested hearing (trial), you will need to present evidence. Both the Family Court of Australia and the Federal Circuit Court of Australia follow the Evidence Act 1995, but they each have their own procedures governing trials and evidence.

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Property financial questionnaire

A financial questionnaire is a document, which outlines the financial income, expenditure and liabilities of a business, person or other entity.

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Rules of evidence family court in a proceedings

Not all evidence that is relevant can be shown to the court. Ensure that you have a sound knowledge of the law of evidence and in particular a proper knowledge and understanding of the provisions of the Evidence Act in relation to any proceedings in the Family Court, other than child-related proceedings

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Self-Incriminating evidence

The case of Churchill & Raske discussed the gray area in evidence law which is the matter of providing self-incriminating evidence in family law.

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Service of divorce documents

Service is the process of sending or giving court documents to a party after they have been filed, in accordance with the rules of a court. Service ensures all parties have received the documents filed with a court.

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Spousal and de facto maintenance

Spouse maintenance is financial support paid by a party to a marriage to their husband or wife (or their former husband or wife) in circumstances where they are unable to adequately support themselves.

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Spousal maintenance orderUrgentVarying or ceasing

Spousal maintenance refers to maintenance which is payable by one partner. A partner to marriage is liable to maintain the other partner to the extent that they can reasonably afford to do so and if their spouse is unable to support him or herself adequately.

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The advantages of a family report

The court will order a family report this is usually prepared by an accredited social worker or psychologist. This report helps to determine the best interests of a child

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The child responsive program involves a series of meetings

A registrar lists the case to the , which involves a series of meetings with a family consultant and the parties involved.

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The Family Law Act gives the court wide discretion powers

The Family Law Act gave the Family Court and Federal Magistrates Court a wide discretion in deciding property settlement disputes.

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The legal status of de facto relationships

A de facto party must, ordinarily, bring an application for a property or maintenance order to the court within two years of separation. Do you have any rights?

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The relationship between bankruptcy and divorce

When the party to a divorce becomes bankrupt, much of that person’s property becomes vested in the bankruptcy trustee. That means that the trustee, not the bankrupt, controls the property. The trustee’s job is to use that property to benefit the bankrupt’s creditors.

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Third parties in a property settlement dispute

In a family law proceedings, It is important for third parties to be involved to protect their rights and interest over the Property that was mortgaged, leased, or any other legal transfer, whether partial or total, as the case may be.

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Third party Interests in family court proceedings

Family Law Courts can join third parties in a family law proceeding to protect the interests of both divorcing parties and third parties. A divorcing husband and wife, or separating de facto partners, are the most keenly interested parties in family law proceedings.

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Trial-Opening address

A trial in a family law case is very challenging but with sufficient preparation, it can be surpassed with excellent results. Theories about trial techniques can be learned in books and the classroom but actual practice is mastered by experience and preparation.

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Understanding Legal Fees

Clients should not hesitate to ask and be informed of the financial terms for retaining the services of their lawyer. This way surprise and shock will be avoided come billing time. Some lawyers bill by the time spent with a client even if it is just for reading a note or answering a legal question.

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Use of affidavits in family court proceedings

Parties who apply to a Family Law Court to resolve a dispute will need to prepare appropriate affidavits to prove their case. An affidavit is the main method of presenting evidence in the Family Court.

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Use of conversation recordings as evidence in a family law case

Whether a secret recording of a conversation can be used as evidence in a family law case depends on the nature and content of the recording.

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Value of the home in a property settlement case

A valuation pursuant to Family Law Rules is unbiased as the valuer acts independently and is not working for any particular party

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Vexatious Litigant Orders

Vexatious litigation is legal action brought solely to harass, annoy, embarrass or subdue and adversary, regardless of the merits or prospects of success of the action

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What is an eligible child support carer

A non-parent carer cannot be considered an eligible carer if the parent or legal guardian of the child has indicated that he or she does not consent to the person caring for the child, unless it is unreasonable for a parent or legal guardian to care for a child.

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Your affidavit is known as evidence in chief

The Family Court and Federal Circuit Court have blank affidavit forms for applicants and respondents. An applicant or respondent can also make his own affidavit

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