Intervention & Restraining Orders

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Intervention & Restraining Orders

Dealing with Intervention Orders and Restraining Orders not only demands a high degree of understanding but also requires an appreciation for the broader impact such orders have in the family law jurisdiction and in particular in relation to parenting matters. We stand strong with you to ensure the best possible outcome. We provide:

  • Advice and representation to obtain or defend an intervention order and restraining order including children on an interim or final basis.
  • Applications for variations of intervention orders.
  • Restraining orders to protect personal and real property.

Video Series

Before you get a divorce

Introduction

Transcript

Hi, my name is Joe Schepis and I’m Leanne Abela. We’re directors of Pearsons Lawyers.

Over the years, we’ve represented thousands of clients in relation to Divorce & Separation and we’ve found that there’s a significant amount of misconception about the process and also lots of commonly asked questions such as: ‘Who’s going to get the kids?’ ‘Who’s going to get the house?’ ‘When can I start that Divorce process?’ ‘What will this cost me?’

No question is a dumb question. So we’ve created this series of 7 Modules. Each Module contains 3 to 4 short videos. Each video is led by one of our team members, who will explain each topic in more detail.

And so, if you’re ready to proceed, go to the Pearsons Youtube channel or go to the Pearsons website and start off at Module 1. Module 1 contains information on action that you need to take right now before you do anything further. We’re confident that once you view the Module, you’ll ‘know where you stand’. And guess what? You can view it free of charge!

So if you’re ready to proceed, go to Module 1 now and we’ll see you there. Bye for now.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check as we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you. Whatever it is that you choose, it is our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you ‘know where you stand’.

Video 1: Overview

Transcript

Hi. Welcome to Module 1 of the series, “How to get a Divorce in Australia.”

My name is Leanne Abela and I’m Director and Partner of Pearsons, and in this Module I’ll be providing you with two essential checklists of the things you should do right here and right now, which are at no cost.

Over the years, we’ve done thousands of divorces and separations and what we find time and time again is that often one of the parties has an unfair advantage over the other as a result of documents which they have access to, or resources, or steps which they have taken prior to the separation.

So in this module I’ll be providing you with two checklists which will give you access to information and documents which will let you in to the separation process on an even playing field.

This is the first of three videos, including the overview in this module. The next two videos deal with the two essential checklists. The first checklist is action that you should take immediately and the second video deals with documents you should collect straight away.

So, that’s it for the overview. If you’re ready, why not move on to Video 2 which is action you should take right now.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you. Whatever it is that you choose, its our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you ‘know where you stand’.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Video 2: Must Do Now Checklist

Transcript

Hi, welcome to Video 2 of Module 1.

My name is Leanne Abela. I’m Director and Partner at Pearsons. And if this the first video you’ve seen in the series, I strongly recommend you go back to the beginning and have a look at everything else we have to offer in the series. And you can do that by going to the Pearsons’ YouTube channel or to the Pearson’s webpage.

One of the first things that you can attend to, which will cost you nothing, and will be very effective, is to change your e-mail password. Most relationships result in parties knowing one another’s password and so the first thing that can go wrong is that you’re almost eavesdropping on each others’ conversations.

When you’re separating or thinking of separating, it’s important that you retain your privacy. So by changing your password, you’ll ensure that your partner doesn’t have the ability to download some of those e-mail communications with other people, or friends, or even your lawyer and use that to your disadvantage.

The last thing you want is to be worried about communication that you may have undertaken without knowing that somebody was going to use it against you. And this could happen immediately or later on into the process at a time when you’ve completely forgotten that you even sent the e-mail. So this is something that is free, will cost you nothing, and that you can do to protect yourself and give yourself some peace of mind.

The next thing you could attend to, which is also very important, will involve a visit to the bank or some online work. And that is, freezing your mortgage balances, freezing draw-down facilities, and freezing some credit cards.

So most people these days operate with a mortgage balance or a mortgage limit, and then have their draw-down facility. And in most of the cases we’ve seen, one of the knee-jerk reactions to a separation is for one of the parties, either because they’re worried about how they’re going to cope financially or sort of a way of punishing their partner, if you like, is to draw-down against the mortgage and take a load of money out.

Now they might take the money out because they need to setup furniture at another property or because they’re worried that their partner is going to do the same thing and draw down against the mortgage.

So one thing you could effectively do is to contact the bank, explain that you’ve separated, and what you don’t want, is what can be seen as theft but isn’t really, in terms of drawing-down against the mortgage or overdraft, and thus really reducing what there will be to fight about in the basket at the end of the day.

If you find you are unable to do this without the assistance of a solicitor, then by all means go and see family lawyer straight away and hopefully there won’t be any need to go to court. It could be dealt with by way of a letter or some communication. But, ultimately, if a court order is necessary, this can be done, and it can be done very quickly and efficiently.

The third thing which needs to be attended to often occurs when one of the parties has the assets in their names. So in family law, we don’t really take any weight in relation to whose name the properties are in but if the property is in your partner’s name and not in your name, it’s important that you protect your interest.

You can’t, effectively, have a fight over an asset that no longer exists. And it will no longer exist if your partner transfers it, sells it, or gives it away. So how do you ensure that doesn’t occur? By lodging a caveat against the property.

Now, you can do this yourself by visiting the Titles Office in Melbourne and lodging a caveat against the property and there’s a government fee involved, a fee, a duty. And that will be approximately $100 or you can pay a lawyer to do it and that will be a total cost of around $300 to $350. And that will ensure that your partner can’t borrow against the property, transfer it, give it away, or take other securities against it.

Changing the locks, a lot of people come and approach us about changing the locks because their partner has already left or they want their partner to leave. Changing the locks is not really an effective way of stopping somebody coming back into the property.

But if your partner has already left you may want to change the locks just to ensure you have privacy and that you’re not worried about them returning when you have taken occupation of the property.

Doesn’t give you a greater entitlement to the asset, doesn’t mean your partner can’t come back, but it does give you some security and so we do recommend, generally, if you’ve had occupation of the property that you change the locks.

Dealing with a will. Now we know this is a difficult time, the time of separation. It’s scary, it’s confusing, there’s lots going on in relation to the children and property. But unfortunately, people do die during the course of a separation and prior to the assets being divided.

And, in the work we’ve done over the last 26 years, there have been many instances where people have passed away unexpectedly and tragically, leaving their family most upset because there was no will in place. And what it would mean, if you didn’t have a will is that your clothing, jewellery, finances, assets, would all go to your estranged partner, which would leave a bit of a mess for your family and in particular your children.

So what we recommend that at the time of separation you make a new will and that you also change the beneficiaries of your superannuation fund. At the moment, your beneficiary of your superannuation fund is likely to be your partner and it’s important that that’s changed to either be your children or whoever you want to leave your superannuation entitlement to. And a solicitor will help you work through your will and deal with that superannuation issue if you want them to or you can simply contact your own superannuation fund.

In some instances, at the time of separation, or leading up to separation, a party might be fearful of separating because of the reprisals that might occur. If you are in fear of your own safety or that there may be damage to the property if you separate, we would recommend that you contact your local magistrate’s court and ask for an appointment to apply for an intervention order.

Intervention orders are a subject of their own and so if you’re interested in that particular topic, I suggest you go to a later video in these modules which will cover that topic completely.

So, if you feel that you’re ready and you’re able to move on to the next video, I recommend that you do, and the next video will deal with essential documents that you’ll need to gather so that you’re well-equipped during this entire process, or if you’re still thinking of separating, so that you have everything you need when that time comes.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may
not be able to talk to you.

Whatever it is that you choose, its our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you know where you stand.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Video 3: Essential Documents Checklists

Transcript

Hi. Welcome to the third video in Module 1. My name is Leanne Abela. I’m Director and Partner at Pearsons. And if this is the first video you’ve seen, I strongly recommend you go back to the beginning and view everything we’ve got to offer in the series either by looking at our Pearsons’ YouTube channel or to the Pearson’s webpage.

In this video, we’re going to cover those documents which we think will be really useful for you to have. So again, in the cases we see, a lot of time and money is spent as a result of people not being able to gather information and then leaving it to the lawyers to try and collect documents and information that they should really have themselves.

They’ll often curse themselves and say, “Why didn’t I collect that before I left the home?” or “Why did I let the other party take that?” So by taking this step,not only are you saving yourself time and money, but you’re making sure you’re not disadvantaged and that you have all the information that you need, your lawyer needs, and in the unfortunate situation where the matter does go to court, that the courts have got everything they need to be able to make an assessment as to what you’re both entitled to.

So there’s a range of documents, some involve the children, some don’t. So if we start with the documents which are pretty useful to have regardless of whether or not there are children. That would be your marriage certificate,Titles to the property, now most people do have their Titles held in a deed box at the bank, but in some instance people haven’t gotten around to placing it in a secure place, so you can either bring that Title to your lawyer or take it into a safety deposit box. It really shouldn’t be at home anyway.

It’s useful to get bank statements, mortgage statements, credit card statements,tax returns, superannuation statements. Now as far to how far back as you should go, useful probably to go back three to five years and to get current statements if you can.

Also, passports, particularly if there are children. In many instances, people are fearful that their partner may take off to another country with their children and that may or may not be a Hague Convention country and it’s just one worry you may want to eliminate. So if you take the passports and, again, put them in the deed box with the title or take then to your solicitors, they’ll be there for safekeeping.

Pay slips are also useful to show what the current income is of your partner. And then also any other documents you think relate to your relationship and the finances of you and your partner.

So in some instances there are trust deeds, company documents, accountant statements, calculations that the two of you have made when you’ve tried to work out what your finances are going to be like in the future or how you’re going to retire. Those workings and documents are useful so that we know what the assets were or what was going to be expected to come in from either the running of a business or from an investment.

You can get those documents from your accountant but again that can be expensive and a duplication. And so if you’ve got those documents at home, worthwhile getting.

Now, don’t panic if you can’t find them and don’t let that stop your separation if that’s what holding you back. We can always obtain that information by subpoenaing documents through the court process, by contacting the superannuation fund of your partner.

There’s now legislation in place that allows us to do that where as previously we had to rely on trying to find it. You can actually get that information quite easily and readily. But anything that you can do to help yourself saves time and saves money. And what you don’t want is to be paying solicitors an hourly rate to do something that you can do yourself.

So, once you’ve got all that information, put it all in a folder and then take it to a safe place. Don’t leave it at home; don’t leave it in the car. Take it to a friend or to your workplace where your partner can’t access it.

Alternatively, you may want to photocopy it and then return it back to where you found it. Either way, as long as you’ve got a set that’s in a safe place you’ll be well equipped. And this is the very thing that can often delay processes in settlement, can often cost lots of money because letters are being passed between solicitors while they’re gathering this information, rather than calculating the range itself, which as I said is a topic in itself and will be dealt with later in one of the other videos.

So, now you’ve got all the information you need in terms of action you can take straight away without consulting a solicitor and you can either decide to wait, until you’ve decided whether or not you want to separate, or you can go and make an appointment with a lawyer. And any one of our team can see you for a first appointment free, and if you take that information with you, you’ll find that you breeze through the appointment and that by the conclusion of that appointment, or by the end of this series of videos, you’ll have an idea of the range of settlement and the expectation you’ll have in relation to your
children prior to any other court action.

So that’s it for Module 1. Now to sum things up, hopefully there are two things that you’ve done. Firstly, you should have taken a series of actions which will give you peace of mind and security knowing that you’ve attended to certain housekeeping matters, and secondly you should have a folder of documents which will put you in good stead regardless of where you are in the legal process and regardless of where you’re going to end up.

Now, if you’re feeling ready, I suggest you move onto Module 2 which is entitled, “Divorce and the Law.”

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may
not be able to talk to you.

Whatever it is that you choose, its our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you know where you stand.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Divorce & The Law

Video 1: Overview

Transcript

Hi, welcome to Module 2: Divorce and the Law. My name is Natasha Papasavas. I am a Senior Associate at Pearsons Lawyers. If this is your first module, we highly recommend that you return to Module 1. Module 1 contains highly important actions that you need to take prior to proceeding any further. To do this you need to go to the Pearsons YouTube channel or to the Pearsons website and follow the links.

This module contains four videos centering around the divorce application process. The first video, which is what you are currently watching is the overview. In the second one, I’m going to walk you through how to apply for a divorce. The third one I am going to discuss do-it-yourself divorce kits, and finally in the fourth video, I am going to discuss overseas marriages and divorces. If you are ready, let’s head on over to Module 2, Video 2.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you. Whatever it is that you choose, it is our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you ‘know where you stand’.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Video 2: How to apply for a Divorce

Transcript

Hi. Welcome to Video 2, Module 2. My name is Natasha Papasavas and I’m a Senior Associate at Pearsons Lawyers. If this is your first video, then I strongly suggest that you go back to Module 1. Module 1 contains highly important actions that you must take prior to proceeding any further. To do this you need to go to the Pearsons’ YouTube channel or to the Pearsons’ website and follow the links, otherwise let’s proceed.

There are two ways to apply for a divorce. The first is to go to a lawyer, and the second is a do-it-yourself divorce kit, which I am going to discuss in another video. The basic ground for divorce it that you have to be separated for 12 months. There are sometimes situation whereby the husband or the wife is unable to leave the matrimonial home and therefore this is classified as ‘separation under the same roof’.

To prove this you need to get a family or a friend that can corroborate that there has been separation under the same roof. This needs to be for a period of 12 months. Once you have established that major ground of the 12 months, then you can go to your lawyer and ask them to make the application. You must make sure you take your marriage certificate with you because it needs to be shown to the court that there has actually been a valid marriage.

Once that has been satisfied you will get a hearing date. The hearing date will usually be from six to eight weeks from the time that person has gone in and taken in the divorce. The application will be stamped. Once it’s stamped, it will then go to a process server, if you decide to go through the avenue of a lawyer. The lawyer will tell the process server where the husband or the wife lives. This is where some complications arise because the other party often wants to be difficult, or they’ve basically lost touch with the other person. This is when the lawyer will have to make an application to the court to dispensate with service, which is a bit complicated if you decided to do things on your own.

After that, the court needs to know whether there are children under 18 years of age. If there aren’t any children, it is a little easier because it is just dealing with the parties. If there are children, then the court must be satisfied that the children have been properly taken care of. Basically are they seeing their mum or dad properly – who is living with who? Are the accommodations sufficient and is the child progressing well at school? Genuinely the well-being of the child is taken care of.

Once that is all taken care of, then the registrar will grant a divorce. Before getting to that point though, I aven’t mentioned the costs associated with the divorce. It depends on whether you have a concession card, or if you have a pension. Both of those will obviously discount the fee but if you have a lawyer, the divorce fee will vary depending on whether or not the service of the application on the other party was easy. If so, it shouldn’t cost as much. It all depends on whether there is an affidavit that needs to be done to prove separation under the same roof. It all just depends.

Generally when you get to the point of an application of a divorce you’ve gone through all the motions of working out the arrangements of the children and property. Now I must tell you that prior to applying for your divorce application, you should make sure that the financial situation has been resolved between the parties because after your divorce is granted you only have 12 months to apply for a financial order, so to speak. So it is very important to do that.

The process of making an application seems easy but there are lots of hurdles you need to go through before you actually achieve it. You have to look at the children, you have to look at your property, and most of all you have to make sure the children are adequately taken care of, if there are children in the marriage, in a way that will satisfy the court. If you have a lawyer to represent you for your divorce application, the stress of going to court is no longer required because you are not needed to go to court for an application for a divorce. Your lawyer can appear on your behalf which obviously provides a sense of relief to the client. This concludes this video, and in my next video I am going to discuss do-it-yourself divorce kits. So bye for now.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you.

Whatever it is that you choose, its our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you know where you stand.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Video 3: DIY Divorce Kits

Transcript

Hi. Welcome to Video 3, Module 2. My name is Natasha Peppasavas and I’m a Senior Associate at Pearsons Lawyers. If this is your first video, I strongly recommend that you return back to Module 1. Module 1 contains highly important actions that you must take prior to proceeding any further. To do this you need to go to the Pearsons’ YouTube channel or to the Pearsons website and follow the links. But if you’re ready to go, let’s proceed.

In my last video I discussed how to apply for a divorce using a lawyer. In this video I’m going to discuss how to get a divorce using a do-it-yourself divorce kit. It’s been more and more popular these days to do one online by yourself. It has it’s advantages and disadvantages. To do it online you still need the same requirements. You still need to be separated for 12 months, and you still need to have a marriage certificate, and you still need to prove to the court that proper arrangements have been made for the children if there are any under the age of 18. You still need to pay the service fee, and the amount will depend on whether you have a concession or if you are on a pension. But it’s the same.

The difference is though, is that if you do it yourself, you have to appear and do your own appearance in the Court, which often is daunting for clients and often that’s where it gets a bit tricky. Some people come to us when they have got to that stage at the end, where they’ve done it all themselves but to go into court and do it yourself is quite daunting. Emotionally, it’s hard because you are about to apply for a divorce. It’s quite final, so the support of a lawyer in this instance is quite satisfying.

But people use the divorce kits because they are quick as in you just do it online, get the hearing date, you just go and you do it. It just happens, whereas with a lawyer it’s a bit more emotional. You have a discussion. You talk about different options and if there is property or children involved, it can all be discussed with the lawyer. Whereas if you do it online, going straight into the divorce, filling out the application, you may also encounter service problems.

This is where again, people come back to us because they can’t serve their former husband or wife. They person is either being difficult or they don’t know where they are. Then, to make these applications to the court to dispensate your service is very difficult if you’re doing it by yourself. Again there are pros and cons which you have to weigh up as to which suits you.

Obviously the divorce do-it-yourself divorce kits are very good for people who don’t have any kids, or they’ve had a short marriage, or it’s very quick and easy with nothing too much, it’s not a big property pool or there’s not 100 kids. That’s it for this video. If you’d like, you can proceed now to Video 4, Module 2. Bye for now.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you.

Whatever it is that you choose, its our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you know where you stand.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Video 4: Overseas Marriages and Divorces

Transcript

Hi. Welcome to Video 4 of Module 2. My name is Natasha Papasavas and I’m a Senior Associate at Pearsons Solicitors. If this is your first video, then I strongly recommend you go back to Module 1. Module 1 contains highly important actions that you must take before proceeding any further. To do this you need to go back to the Pearsons’ YouTube site or to the Pearsons’ website and follow the links. Otherwise, if you are ready to go, let’s proceed.

From time to time, we have people who come in to our office that have been married overseas and are wondering whether they can get a divorce in Australia. The simple answer to that is yes you can, but you need to satisfy one of the three criteria in the application.

Number one is that you’ve lived in Australia for a period of 12 months or more. Two, that you are an Australian citizen. Or three that you regard Australia as your home. It’s relatively simple if you satisfy one of those criteria. You are then able to apply for a divorce.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you.

Whatever it is that you choose, its our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you know where you stand.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Divorce & Children

Video 1: Overview

Transcript

Hi, welcome to Video 1 of Module 3. My name is Helen Chetcuti. I’m a Senior Associate at Pearsons Lawyers. If this is the first video you’ve seen, I highly recommend you go back to Module 1. Module 1 contains two important checklists of actions that you need to take right now before proceeding further. To get there, visit Pearsons YouTube channel, or Pearsons website and follow the links.

This module contains a four videos dealing with divorce and children. One of these videos is this overview that you’re watching now. Video 2 deals with children and custody arrangements. Video 3 deals with family violence and the protection of children. And Video 4 I’ll walk you through the mediation process and the court process. So, if you’re ready to begin please proceed to Video 2 of Module 3.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you. Whatever it is that you choose, it is our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you ‘know where you stand’.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Video 2: Who Gets Custody of the Kids

Transcript

Hi, this is Video 2 of Module 3. My name’s Helen Chetcuti and I’m a Senior Associate at Pearsons Lawyers. If this is the first video you’ve seen, then I highly recommend you go back to Module 1. Module 1 contains two checklists of important actions that you need to take right now before proceeding further. To get there, please visit Pearsons’ YouTube Channel,or Pearsons’ website and follow the links. Otherwise, if you’re ready, let’s begin.

The obvious question in divorce and children’s manners is what arrangements do we come to in respect to our children? In terms of the decision making powers, they are your children, this will depend on who generally makes the decision and there is a presumption that decision making will be shared.This is often called shared parental responsibility, and means that both parents generally share decision making in respect to a child.

However, where this is not practical, or there are issues of risk, this may not be possible, and therefore the court will make or, an agreement can actually assign, sole parental responsibility to one party. In other situations there may be grandparents, or the parties, concerned with the care, welfare and development of a child who require that decision making power. And in those situations, orders or written agreements can also be made providing sole parental responsibility for those parties or other parties to share in that responsibility.

In terms of who a child lives with and spends time with – they’re the new terms that we are now applying (as opposed to custody of a child). Who a child will live with or spend time with will depend on the interests of the child and the composition of your family.

In looking at what’s in the best interest of the child the court will consider and balance the need for a child to have a meaningful relationship with both parents. Also, against the need of any risk factors or violence issues, that may be occurring within the home.

In addition the court will look at factors such as the age of the child,wishes expressed by the child, any other siblings of the child, and any other family relationships that this child may have, the cultural background of the child, such as if they are an Aboriginal or Torres Strait Islander child, and other factors of the day to day welfare of that child.

And in doing so the court will then look at what arrangement best suits the child. In terms of views expressed by a child, I’m often asked the question as to whether a child can give evidence in a family court situation, and the child does not give evidence; does not go into a courtroom. Rather,their voice is heard through other mechanisms, such as a family report could be prepared, which is a psychologist to the court, prepares a report with the parties and the child and writes a recommendation for the court to consider.

In other situations an independent juror’s lawyer who is the lawyer for the children may be appointed to gather evidence surrounding the child’s life,whether it be a Score Report, or other reports necessary, and to provide a neutral perspective on behalf of the child, away from that of the parties.

So again, who gets custody of a child will really depend on the facts of your case, and also whether you require, to actually litigate matters, a court order or whether you require a parenting agreement, a registered parenting agreement, or a verbal agreement. If you’re having a verbalagreement, then you don’t necessarily have to have any of these other issues written down. And if it’s a written agreement, obviously these matters will need to be addressed.

So in a nutshell, who gets custody of the children is not a straight answer. It will depend on the composition of your family, the facts of your case, and what is in the best interest of your child.

That’s it for this video. If you feel that you’re ready, you can now move on to Video 3 of Module 3.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you.

Whatever it is that you choose, its our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you know where you stand.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Video 3: Family Violence and Protection of Children

Transcript

Hi, this is Video 3 of Module 3. My name is Helen Chetcuti, and I’m Senior Associate at Pearsons Lawyers. If this is a first video you’ve seen, then I highly recommend that you go back to Module 1. Module 1 contains two important checklists of actions that you need to take right now before proceeding any further. To get there, please visit our Pearsons’ YouTube Channel, or Pearsons’ website and follow the links. Otherwise, if you’re ready, let’s begin.

In the last video I briefly touched on family violence and the presumption of shared parental responsibility. In terms of the decision making of parents, where there are issues of family violence, it may be difficult for parents to share decision making in respect to that child. In such situations depending on the facts of your case, and not all situations, one party may be provided sole parental responsibility where there are risk issues.

Family violence itself has a wide definition in respect to the Family Law Act, and includes physical, verbal, psychological, financial abuse, abuse to pets, and also any behaviour that is coercive or controlling to another party that makes that party feel fearful. It doesn’t mean that in each situation of violence that you will obtain a sole parental responsibility order. It will largely depend on the facts of your case; the interests of your child will be the paramount considerations.

In terms of if you’re experiencing family violence; there are other measures that you can also take in respect to ensuring your safety and that of your children. You may seek support, or also an interventional order, or police assistance if you need to assist you children and ensure your protection.

Family violence is a significant issue for our community, and a crime in our community. It is very difficult for you to often deal with your children’s matters when you are also experiencing violence. It is for this reason I strongly recommend that you obtain the support to assist you to deal with your violence issues and have the support which will be needed as you go through arrangements, to discuss arrangements for your children’s matters.

That’s it for this video. If you feel you’re ready, please proceed to Video 4 of Module 3.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you.

Whatever it is that you choose, its our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you know where you stand.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Video 4: Mediation or Court

Transcript

Hi, welcome to Video 4 of Module 3. My name’s Helen Chetcuti, and I’m a Senior Associate at Pearsons Lawyers. If this is the first video you’ve seen, I highly recommend you go back to Module 1. Module 1 contains two important checklists of actions that you need to take right now, before proceeding any further. To get there, please visit Pearsons’ YouTube Channel or Pearsons’ website and follow the links. Otherwise, if you’re ready, let’s begin.

In the last few videos we covered a lot of ground, and the obvious question that my clients often ask me is where do we start. Mediation is the first place that you start in trying to make arrangements for your children. Mediation is a cost-effective process, and ensures that parties are actively involved in the decisions and the structure of the time arrangements for their children.

However, in some situations mediation may not be the most effective process. This could be in situations of risk, or urgency, where the only option is to issue to the court urgently for a parenting order.

Prior to issuing any parenting order you need a Certificate of Attempt to Mediation. However, in situations of rgency and risk you can seek an exemption from the court when filing your application.

Mediation Centers themselves are very different. There are some in the community that have nominal charges and each center is different in terms of what they charge parties, and there are also private mediators who can be engaged by parties to assist you in your dispute. So there are a variety of different models of mediation that you may want to access and will suit your family.

In addition, you may have a situation where parties are from different cultures or backgrounds, or linguistic bility, and this is also a factor you need to take into account as to whether mediation will suit you or whether it’s suitable in your case. The Mediation Centers themselves will assist you in providing you with this information, and as to whether they can actually mediate your dispute. In the event that they can’t, you have the option of seeking an exemption from the court and issuing your application for a parenting order.

So in a nutshell, the first place we start is with mediation. It is cost effective; it helps parties to come together to try and reach a resolution about their children. However, in other situations you may not be able to do so. It would depend on the facts of your case, and you may need to seek an exemption from mediation and issue an application with the court.

So, this is the end of this video and this module. If you’re ready to proceed, head on over to Module 4: Divorce and Financial Support.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you.

Whatever it is that you choose, its our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you know where you stand.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Divorce & Financial Support

Video 1: Overview

Transcript

Hi and welcome to Module 4: Divorce and Financial Support. My name is Joe Schepis. I’m a Director of Pearsons Lawyers. If this is the first YouTube video that you are seeing, I would highly recommend that you go to Module 1. Module 1 contains two videos on important action you need to take right now before you proceed any further. To get to Module 1, you need to visit the Pearsons’ YouTube Channel or go to our webpage and follow the links from there.

In this module, there are seven videos including this one which is an overview. Video 2 is on Child Support and the Child Support Scheme. Video 3 is on Child Support – Part 2: dealing with other child maintenance and child support issues. In Video 4, I’m going to cover spousal maintenance and spousal support. Video 5, I’ll talk about litigation funding. Video 6, we’ll deal with Centrelink and Centrelink Entitlements & Benefits. And in Video 7, I’ll deal with some Frequently Asked Questions.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you. Whatever it is that you choose, it is our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you ‘know where you stand’.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Video 2: Child Support Part 1

Transcript

Hi and welcome to Video 2 of Module 4; Child Support, Part One. My name is Joe Schepis. I am a director of Pearsons Family Lawyers. If this is the first YouTube that you have seen, I highly recommend that you visit Module 1.

Module 1 contains two videos of important actions and things that you need to do right now before proceeding any further. To do that, go to the Pearsons’ YouTube Channel or visit our webpage and follow the links from there.

If you are ready to proceed, let’s go.

You may remember, way back in the 1970s and ’80s, that child support, or child maintenance as it was known in those days was very minimal, if collected at all. Bob Hawke famously made the promise that by 1990, no child will live in poverty. As a result of that, the child support scheme was set up and it began in 1989.

The Child Support Agency was set up and is connected to the Tax Office and to Centerlink. The way that child support worked out is that the Child Support Agency has a formula. It’s a very complicated formula but essentially it looks at the income of both parents and also the percentage of nights that the children spend with each parent.

As a result of looking at those factors, the Child Support agency calculates an amount of child support which has to be paid by one parent to the other. The eligible parent which is a parent that is eligible to collect child support can apply to what is called opt-in to the scheme; that means that the agency will collect child support on their behalf.

Once an assessment happens, there is usually nothing wrong with the amount of child support. But sometimes things go wrong. There are internal mechanisms set up within the agency where either parent can apply to have the agency re-look at it, by way of an assessment or a review. There all dealt with internally; the whole system’s set up so that lawyers don’t get involved.

If at the end of the internal review and re-assessment process one party is still aggrieved, they can go to what is known as the Social Security Appeals Tribunal, again, without lawyers, to have them investigate and look at the whole situation afresh.

The avenues to go to court are extremely limited. They’re limited to cases where there are already proceedings on foot, in which case, one parent can ask the court to also deal with child support matters. The other one is that there are questions of law, which are extremely rare.

Now, at the end of all the child support scheme, the end result is that parents receive a lot more child support than they used to both by way of the number of parents that are paying and the amount that’s being paid. Which means that there is a lot less reliance on the public purse and taxpayers to support children.

There are two other aspects of child maintenance and child support which may not fall within the child support scheme and that is adult child support maintenance and step-parent maintenance.

The child support scheme comes to an end when children turn 18 years of age and complete their secondary education. In that case, a parent can apply to the courts and seek that the other parent continue to provide financial support for the adult child and that is called Adult Child Maintenance.

Typically the court will look at what the needs of the child are, which I call ‘The black hole’, and then they will look at each parent to see what their respective abilities are to contribute towards the financial support of the child and fill the black hole. Typically the court makes an order for a payment of an amount of money on a weekly or monthly basis until the child completes their first degree.

The other situation is where there is a step-child and a step-parent has maintained, supported, and raised that child as if it’s their own. In that case when those parents separate, then the step-parent doesn’t see if they’ve got an obligation to maintain that child.

But that’s not necessarily the case. The legislation provides that in certain circumstances, a step-parent can be declared to have an ongoing obligation to support the child and to pay maintenance for that child despite the fact that it’s not theirs.

That’s the end of Video 2. If you’re ready to proceed, go to Video 3: Child Maintenance, Part 2.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may
not be able to talk to you.

Whatever it is that you choose, its our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you know where you stand.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Video 3: Child Support Part 2

Transcript

Hi and welcome to Video 3 of Module 4. My name is Joe Schepis. I’m a Director of Pearsons Family Lawyers. If this is the first YouTube of oursthat you have seen, I highly recommend that you go to Module 1.

Module 1 contains two videos of very important action needed to take right now before proceeding any further. To do that, you can visit either the Pearsons’ YouTube Channel or go to our webpage and follow the links from there.

If you are ready to proceed with Video 3, Child Support and Child Maintenance, let’s proceed.

In this part I’m going to talk about child support agreements. Although the child support scheme was setup for the agency to assess child support for parents a lot of parents are able to talk about financial support of their children either directly or through their lawyers and reach an agreement.

There’s two types of agreements. There’s a limited child support agreement.These are usually agreements entered into between the parent themselves,signed off and registered with the child support agency and they’re limited because they won’t last for longer than three years.

The other type of agreements are binding child support agreements. And those agreements are binding and last well beyond three years and can last until the children are 18 years of age or some other period before that, that the parties agree.

They’re binding because lawyers are involved and lawyers need to sign certificates, which are annexed to the agreements. Those certificates certify that the clients has been advised of the effective entering intothe agreement and the advantages and disadvantages of entering into that agreement.

The typical agreement provides for a parent to pay in addition to an amount of child support – which could be the amount that’s assessed by the agency -other expenses for the child or children, like private educational fees and expenses, extra curricular expenses like sporting, piano or other languages, and the like.

That’s it for Video 3. If you’re ready to proceed, you can now go to Video 4: Spousal Maintenance and Spousal Support.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you.

Whatever it is that you choose, its our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you know where you stand.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Video 4: Spousal Support

Transcript

Hi. Welcome to Video 4 of Module 4: Spousal Maintenance and Spousal Support. My name is Joe Schepis. I am a Director of Pearsons Family Lawyers. If this is the first video you’re seeing, I strongly recommend that you go to Module 1.

Module 1 contains two videos of important action you need to take right now before you proceed any further. To get to Module 1, you need to go to the Pearsons YouTube Channel or visit our webpage and follow the links from there.

If you are ready to proceed, let’s talk about spousal maintenance and spousal support.

A lot of people think that once they separate they’re entitled to be supported or their obligation to pay support stops. That is not the case. The fFmily Law Act provides that even after you’re separated one parent may have an obligation to provide financial support for the other parent.

We all know that separating from a partner creates emotional turmoil. It also creates financial uncertainty and turmoil as well. This is particularly the case where the parents take on or the parties take on what are known as traditional roles. One person may stay at home, look after children in the household, and devote their time and attention there, whilst the other parent develops their career and career prospects and their income.

When they separate, there’s obviously a big void. There’s a big difference between their respective financial situations. In that case what happens is the parent who is left without can apply to the court for what’s called urgent or Intra-spousal maintenance.

The way the court approached it is that it looks at the needs of that person to see how much they need to be financial support and maintained on a weekly basis or a monthly basis. They then look at the other parent or person, partner to see how they can contribute to financially support and maintain that person.

The obligation to maintain the partner comes before social Centrelink benefits and the court totally disregards any entitlements or social welfare benefits which are means tested. The usual order is the court will make an order that a parent or person will pay to their partner a weekly amount. Sometimes it can be in addition to mortgage repayments, rates and insurances, and sometimes even a lump sum if that person needs to reestablish a separate household.

When it comes to looking at a property settlement because there’s an income differential between the two people that’s taken into account. The end result will be that the person who has no income or income earning ability will get a bigger piece of the pie than they otherwise would have got. That is taken into account as well.

The important thing here is to know that there may be an entitlement to spousal maintenance and to make sure the Centrelink is kept informed of any spousal maintenance because that will affect the [pension] entitlements. They need to be kept abreast of what’s happening so that there’s no come back later on down the track.

That’s the end of Video 4. If you’re ready to proceed, go to the next video, Video 5 on litigation funding.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you.

Whatever it is that you choose, its our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you know where you stand.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Video 5: Litigation Funding

Transcript

Hi. Welcome to Video 5 of Module 4: Litigation Funding. My name is Joe Schepis. I’m a Director of Pearsons Family Lawyers. If this is the first module that you have seen of ours, I would strongly recommend and suggest that you visit Module 1.

Module 1 contains information on two videos of important action that you may need to take right now before you proceed any further. To do that, go to the Pearsons’ YouTube Channel or visit our webpage.

If you’re ready to talk about litigation funding, let’s proceed.

What is litigation funding? Unless you’ve been involved in litigation you wouldn’t know. What litigation funding is, essentially the court attempting to even the keel between parties who are involved in litigation.

As we all know after a long relationship or marriage and people separate, one party is usually left in financial control. Control of the income, control of the property and resources. That party has the ability to engage lawyers and to engage other experts like forensic accountants, real estate valuers, and the like to obtain the necessary information and advice they need to.

The other party may not be so lucky. They may be left without any income and without any resources. They are not in the advantageous position of being able to afford lawyers, and other experts. We all know that legal advice and legal representation especially litigation can be very expensive. What the court will do in this situation is order that the financially stronger party pay a sum to the other party to enable them to meet their legal costs and expenses.

Sometimes what the court does it might order that the financially stronger party actually pay for those expenses. For example that the parties agree on a forensic account to engage, to investigate and prepare an evaluation report on a business, to prepare evaluations of real estate and to otherwise get all the information that’s necessary for the parties to negotiate or to litigate the matter through the court system.

Litigation funding is an avenue for the court to assist the financially weaker party to get access to the judicial system, legal advice, and the information they need to obtain the legal advice. Essentially, litigation funding is an interim measure designed to assist a financially weaker party though the litigation process. At the end of the day, when the court comes to look at a property [served] between the parties, the court can address those matters of any monies that are being paid and how those monies are being used.

That’s the end of this video on litigation funding. If you’re ready to proceed, go to Video 6 which will be about Centrelink benefits.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you.

Whatever it is that you choose, its our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you know where you stand.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Video 6: Centrelink Benefits

Transcript

Hi. Welcome to Video 6 of Module 4: Centrelink Benefits. My name is Joe Schepis. I am a Director of Pearsons Family Lawyers. If this is the first video that you’ve seen, I suggest that you go to Module 1 because it contains two videos of very important action you may need to take right now.

To do that, visit either the Pearsons’ YouTube Channel or the webpage and follow the links from there.

If you’re ready to talk about Centrelink benefits, let’s proceed.

Depending on your particular circumstances you may be entitled to some government support and financial assistance. The way to find out is to visit your local Centrelink office and apply for a pension. There’s a sole parent pension and there’s also family tax benefits A and B.

When you go there to apply for a pension, you also apply for an assessment of child support. Obviously pension entitlements are means tested and that would depend upon other financial support that you might receive by way of child support, spousal maintenance, and the like.

When you apply for Centrelink benefits, make sure you tell the Centrelink officers all of your current financial circumstances and in the event that there’s any change in the future, keep them informed. One thing you don’t want to do is commit social security fraud inadvertently by not keeping them informed.

The other thing you may not realize is that you may be separated under the same roof. Often people separate but can’t afford to move out of the home but they live separately and apart under the same roof. This may entitle you to receive government pension.

The way that you do this is to apply and let them know that you separated under the same roof. That may require some proof like a letter from your lawyer to evidence that you are actually separated.

That’s it for Video 6. If you’re ready to proceed, let’s move onto Video 7 where I’ll answer some frequently asked questions.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you.

Whatever it is that you choose, its our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you know where you stand.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Video 7: Frequently Asked Questions

Transcript

Hi. Welcome to Video 7 of Module 4: Frequently Asked Questions. My name is Joe Schepis. I’m a Director of Pearsons Family Lawyers. If this is the first module that you are watching, I strongly recommend that you go back and watch Module 1, where there are two videos that will give you some important information on action you may need to take right now.

To do that, go to the Pearsons’ YouTube Channel or visit our webpage and follow the links.

If you’re ready to proceed, let’s deal with some questions.

We all know that separation can cause financial uncertainty for both parties. I want to recap by looking at some frequently asked questions.

Probably the most frequently asked question I have is, “Do I have to support my children?” Well, the answer to that is of course you do. They’re your children. That’s why the child support scheme was set up and that’s why the child support agency exists.

The second probably most frequently asked question is, “Well, for how long do I need to support my children?” The answer to that is you need to support your children whilst they’re dependant. Under the child support scheme that will continue until they’re 18 years of age or complete secondary education. But the obligation may continue well beyond that if they’re undertaking a tertiary course of education or training.

The third most frequently asked questions is, “Do I have to support my former partner?” Again, the answer to that is maybe. It depends on your particular circumstances. If they have a need to be maintained and you have the ability to maintain them, then there may be an obligation to pay ongoing support.

Probably the fourth most frequently asked question is, “How am I going to afford all of this? How am I going to afford to engage your services as a lawyer and cover the expenses you need to incur for me such as barristers, forensics accountants to value businesses, real estate valuers to value property?” Well, the answer to that is you may be entitled to litigation funding which will assist you in obtaining the information and advice you need to go through the litigation process.

Finally, a question I’m asked often is, “Am I entitled to government benefits and assistance?” The best way to find out is go to your Centrelink office, apply for pensions entitlements that you might be entitled to at the same as you’re applying for child support.

This is a very brief recap of the information and details provided in previous six videos in this module. For much more information and details on these topics, look at the previous six videos.

That concludes Module 4 on divorce and financial support. When you are ready, proceed to the next module in the series, Module 5: Divorce and Assets.

All of our videos can be found on the YouTube Channel or alternatively visit our webpage and follow the links. Alternatively, if it’s time to contact a family lawyer, I suggest that you contact us to make an appointment for a free initial consultation.

I need to remind you though, that we can only represent one party and if your partner has contacted us, we need to do a conflict check and we may not be able to represent you. Whatever you choose to do we hope you have found this video series informative and that you now know where you stand.
Bye for now.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you.

Whatever it is that you choose, its our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you know where you stand.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Divorce & Assets

Video 1: Overview

Transcript

Welcome to Module 5 in the series: How to Get a Divorce in Australia. My name is Leanne Abela. I’m a Director and Partner of Pearsons, and in this module, we’re going to cover Assets. That is, the size of the cake that’s available for division between you and your partner and the slice you’re likely to receive. That is, what percentage of the asset pool can you expect.

Over the years, my experience has been that most people are really concerned about the financial consequences and fallout of a separation such as: ‘Will I be able to keep the family home?’ ‘What will happen to the superannuation?’ ‘How will the assets be divided and what’s included and not included?’

So, in this module, we have five videos that cover these topics. The five videos include this overview. In the next four videos, we cover what’s the size of the asset pool and what’s included in assets and liabilities. What are the relevant factors the law takes into account in deciding what your percentage is likely to be; that is, what are the contributions and what are the needs factors. Then, some of the most commonly asked questions and, in conclusion, what’s the percentage range you may expect. If you’re ready to proceed, then move on to Video 2: The Assets and the Liabilities.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you. Whatever it is that you choose, it is our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you ‘know where you stand’.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Video 2: Assets and Liabilities

Transcript

Hi! Welcome to Video 2 of Module 5: Divorce and Assets. My name is Leanne Abela. I’m Partner and Director of Pearsons and if this is the first video you’ve seen in the series, I strongly recommend you go back to the beginning and look at all of our other videos in the series. This will give you a good opportunity to understand how we got to this point.

You can view all of those videos on either our Pearsons’ YouTube Channel or on our Pearsons’ webpage. If you’ve already looked at the series and you’re ready to begin, let’s start!

In this video, we’re going to talk about the size of the cake and the slice that you’re entitled to, that is, what is the asset pool and what is your percentage split. We start by looking at the ingredients in the cake, that is, what makes up those assets, what is their value and whose name are they in. So, let’s begin.

When you’re looking at the assets that are available for division between the two of you, you are looking at a whole range of assets and some people refer to them as property and confuse that with real estate. Property is a loose term that’s used for lots of assets, that is, all of the assets and resources that are available for division between the two of you.

What do these assets include? The matrimonial home, or the relationship home that the two of you lived in, regardless of whose name it’s in. You look at its current value and that is what it’s worth now. Now, most people don’t know what the value is. We’re not real estate agents, after all, so it’s a good idea to contact a few agents to get some free appraisals, as to what the property might be valued at if you were to sell it.

The next asset that’s looked at is other investment properties. Again, regardless of whose name those properties are in, they go into the pool, as long as they belong to one of you, or there may be a property that is not in either of your names, but in which you have an interest as a result of a trust or company structure. Again, have an agent look at the value of that property and give you a free estimate, either verbally or in writing, because this is information that you can take with you, either to a solicitor or to assist you in making your own calculation.

Other assets include vehicles, either in your own names or in the company name, regardless of who’s driving them. Most people determine the value of their vehicles in two ways: you can either go to a car trader and ask for its trading value or sale value or most people just do a Glass Guide or Redbook valuation.

You also look at bank accounts, that is, joint accounts, individual accounts and also accounts in the children’s’ names. Now, for some reason, people think that the accounts in the childrens’ names shouldn’t be included because they belong to the children, but, in fact, the children have not worked to save those funds and so those funds have to be included into the asset pool.

In most cases, parents decide that those funds should be quarantined and kept for the children, themselves, when they reach a certain age or for their education, but, technically, they do fall into the asset pool unless people agree between themselves. So, you should have that information with you.

Other assets include collections: stamp collections; art collections; memorabilia, which is quite popular these days. They all have a value and though you may not know the value, you need to include them in the asset pool and they can be valued by a reliable source, later.

Furniture is also included, but, generally, unless it’s valuable antiques which are certified, you simply divide the furniture between yourselves, doing an item by item separation. Very rarely is the actual value of the furniture taken into account.

Often, there are businesses or companies, which have a goodwill value and also an asset value and the assets might include company vehicles, computers, stock and equipment that also needs to be taken into account. Generally, it’s very difficult for the parties, themselves, to determine the value of that company or that business, but, if needed, an appropriate forensic accountant can do the valuation of those assets.

The other resource which is taken into account, which is sometimes seen as an asset rather than a resource, but, in fact, the law says it’s a resource, because neither of you can use it, spend it or borrow against it, is superannuation funds. So, it’s important that you’re both aware of your respective superannuation funds: old ones, new ones, current ones and the current value of those funds.

Generally, what happens with superannuation funds is that they’re split, or divided, so that half of the difference in the values of your superannuation funds are transferred to the other person’s superannuation. So, at the end of the day, you both have an equal amount of superannuation in your superannuation fund. Now, that of course, is a generalization for a long marriage, where there are children, etc., but it’s often the most popular way of dividing that superannuation.

That is the range of the assets which are taken into account when you first look at what there is to divide. Then, of course, you must look at the other side of the ledger, which consists of liabilities. So, foremost, are usually mortgages. They’re a large part of the liabilities people have.

What’s important to look at is this: where are the mortgages parked? Against the matrimonial home, against the business, against the investment property? It’s good to determine that and, also, to determine what are the current balances. So, if you have a list of that, that needs to be set out on a ledger.

The next set of liabilities are usually personal loans to financial institutions or banks; credit card liabilities, regardless of whose name they’re in; debts to family members or friends, that is, personal loans taken out for either building purposes or day-to-day expenses. Sometimes, those personal loans are set out in a loan agreement, and often they’re not, but there is a clear pattern of debts being paid on a continual basis to reduce that loan, so evidence that that loan has been repaid. If not, it’s still worthwhile bringing up that loan.

Other liabilities can include school fees, medical expenses that are unpaid, unpaid household expenses and any other debt or liability, such as taxation liabilities or capital gains tax. If you’re armed with all that information, you can clearly present a ledger that has all of your assets on one side and an estimated value of those assets, now at the time of separation, and a list of liabilities, again, now at the time of separation.

What you do need to know, however, is that when you are doing a property settlement, it’s the value of those assets at the time of settlement that is taken into account, not at the time of separation. So, for example, we did a case recently, where the parties had separated 20-30 years earlier and, for some reason, had not done their asset division or property settlement.

They’d gone along, living their lives thinking that everything was sorted because they’d reached an agreement at the time, but, as one of the parties was approaching death, she wanted to be satisfied that everything was in order and, in coming to see us, she asked what her entitlement would be. She was quite shocked to find that you would actually look at the value of the matrimonial home she had occupied all this time on it’s current value, not the value when she separated.

Now, there are other factors that come into account and she’d be given credit for her contributions made to that property in all those years, but again, it’s the value at the time of settlement, which is often another reason why you should try to do your settlement as close as possible to separation. It’s, in fact, easier to un-scramble that egg after you’ve just made it.

So, hopefully that gives you the list of assets and liabilities that you can put on the ledger, to determine the size of your asset pool, or the size of the cake that you’re dividing. In the next video, I’ll be giving you the factors that you need to be aware of, which will determine the size of the slice that you are getting, that is, what is your percentage split going to be.

If you’re ready to move on to the next video, go on to Video 3, which is The Relevant Factors That Are Taken Into Account in Module 5.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you.

Whatever it is that you choose, its our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you know where you stand.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Video 3: How to Divide Assets

Transcript

Welcome to Video 3 of Module 5: Divorce and the Assets. My name is Leanne Abela. I’m a Director and Partner of Pearsons and if this is the first video you’ve seen in the series, I strongly recommend you go back to the start, so that you’ll fully understand how it is that we got to this point and what the relevant factors are.

You can look at any one of our videos on either our Pearsons’ YouTube Channel or on our Pearsons’ webpage. Now, if you’ve already seen all of the videos leading up to this point, you’re ready to begin.

In this particular video, we are going to look at the relevant factors that are taken into account in deciding your percentage split, or, that is, the slice of the cake you’re going to receive.

From a technical point of view, there are two sections of the act that are relevant and I’m going to mention them to you, just in case you’ve heard them before or you come across them in the future. So, the first is Section 79-4 of the Family Law Act.

What does that mean? Section 79-4 relates to the contributions, which are relevant, when you’re thinking about how the assets should be divided.

So, what are the relevant contributions or what does the law look at? General overview of this section, because, of course, every case is different and every fact situation is different and you need to be aware of that and that is where your lawyer can give you assistance in weighing up how valuable that contribution is.

But, from a general point of view, the items that are looked at are these: your prior contributions, that is, before you entered your relationship, that is, living with your partner, or sharing finances. What did each of you have? Did one of you have a house? Did one of you have savings? Did one of you have superannuation? Assets prior to the relationship.

The next category would be special contributions during the relationship. Now, what can this consist of? The unusual lump sums that have come into the relationship, that are not as a result of the income that either of you earned.

So, regardless of income, was there an initial contribution, or special contribution, during the course of the relationship, as a result of an inheritance, a compensation claim, sometimes a redundancy, a gift or loan of money from family or friends, a windfall or an interest-free loan, or something of that character?

It’s important that you know the amount and the date it was provided and what happened to it. Was it spent on a trip overseas? Has it been whittled away or has it been spent on day-to-day living expenses or on a mortgage or reduction of debt or renovation or the purchase of a property? Or is it quarantined and in a separate bank account? These are the things you need to know and they will affect the percentage split.

The second factor determining the division of the assets is Section 75-2 of the Family Law Act, or what’s referred to as needs.

What are those needs that affect this percentage split that each of you will receive? Well, again, there’s a range of factors. They’re covered under the Family Law Act and the weight that each one is given will really depend on your particular case. There are, however, some general principles which apply.

For example, needs are affected by who the children live with, how old are those children, do they have disabilities, do you or your partner have disabilities that will affect your ability to work in the future, is there an income earning disparity, does one of you earn much more than the other and what is that disparity.

That’s also relevant to the percentage split. Has one of you carried out any wastage during the relationship? That is, excessive gambling, excessive drinking, drug abuse, where the funds have gone out, which should have been
retrieved during the course of the relationship.

Other special needs that are taken into account: there are needs in relation to people that you have to support, other than your own children, your ability to recover after a separation, the size of the pool. The smaller the cake is that you’re dividing, the more cake you’re going to receive if you have a lower income earning ability, dependent children or disability.

The larger the cake, the more likely it is that there’s enough for each of you to be quite full and to be satisfied with the percentage split, to re-house and move forward. Therefore, the percentage disparity between you in that split is likely to become closer and not as extreme.

The maintenance that’s been paid is a relevant factor. Are you going to be receiving child support, if you’ve got the children or are you unlikely to receive child support? So, will you have the complete financial responsibility of raising these children?

Other expenses, such as private school fees, etc. are the topic of another video in this series and so I strongly recommend you follow this series until you get to that point. So, these are some of the general and most common factors that are taken into account when you’re looking at how the percentage split should occur.

If you’re now ready to move on to the next video in the series, we’re going to cover some of the most commonly asked questions in property matters. So, if you’re ready to move on, please go to Video 4, on Module 5, that is in
Divorce and Assets. Bye for now!

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you.

Whatever it is that you choose, its our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you know where you stand.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Video 4: FAQs

Transcript

Hi! Welcome to Video 4, of Module 5: Divorce and the Assets. My name is Leanne Abela. I’m a Partner and Director of Pearsons Lawyers and if this is the first of the videos you’ve seen in the series, I’d recommend you go back to the beginning and have a look at all the videos in our series, so that you can see how it is we’ve got to this point and what the relevant factors are.

Now, you can look at all of our videos on the Pearsons’ YouTube Channel or on the Pearsons’ webpage. If you’ve already done that, then you’re ready to begin.

In this video, we’re going to look at the most commonly asked questions in property matters, or questions people come in and ask us, when they’re not sure what the relevant matters are in their property case or how they should now act or what they should discuss with their partner.

So, what are some of those commonly asked questions? Well, in the thousands of cases that we’ve done, we find that one of the first questions that people ask is, “When should I start? When should I start to look at the assets and what I should divide? Should I wait 12 months? Don’t I have to wait 12 months to get a divorce?”

Well, this is a bit of a misconception. You only have to wait 12 months to get your divorce, but, in fact, most people do their property division before they’re divorced. When can you do your property division? Immediately. You can do it as soon as you are ready to divide the assets.

So, we’ve already discussed what those assets are. With that information, you now know that you can start obtaining your evaluations and start talking to your partner, or through your lawyer, how you will divide those assets. There’s no need to wait.

Another question, which is commonly asked, is, “Who gets to keep the family home?” Well, although there’s not one definitive answer, in most cases, the person who has the primary care of the children, or the substantial care of
the children, gets first choice at keeping the family home.

Of course, they don’t get it for free. They’re going to have to pay for it and it’s going to be taken into account in the entire asset division, but, if between two of the parties, only one of them can have the house and they both want it, it’ll be the one who has the care of the children.

So, what happens if there are no children and both parties want the property? More often than not, it’ll be put to sale or auction and both of the parties can bid for it.

Another commonly asked question is, “What happens to the kids’ accounts? Surely, my partner won’t take that into account in the ledger!” Well, unless your partner agrees, children’s accounts are taken into account and included in the asset pool.

However, in my experience, it’s more often common for people to say, “Look, let’s exclude them and use them for the children’s education or give them to the children, once they reach a certain age, maybe to buy their first car or to travel or as a kick-in to their HECS fees or something.” This is a matter that the parties can agree upon, but if they don’t, it’ll be included in the asset pool.

Another question: Do I have to go to court? Well, the answer is no, you don’t have to go to court. Parties can often reach a resolution themselves and either finalize that in a binding financial agreement or in consent orders, which are mailed to the court or delivered to the court and approved, without you or your lawyer having to go to court. It’s a very quick, efficient and very inexpensive process but it gives you the security and peace of mind that the orders have been ratified by the court and that there’s no comeback in the future.

You can look at further videos in our series, that will explain to you the difference between a binding financial agreement and a consent order and that will tell you the different processes available to try to settle your
case, or to give you your final conclusion.

That’s it for this video, so if you’re ready to proceed, move on to Video 5, where we’ll give you a range of the percentage split you can expect to receive.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you.

Whatever it is that you choose, its our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you know where you stand.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Video 5: Calculating Your Entitlement

Transcript

Hi! Welcome to Video 5, of Module 5: Divorce and the Assets. In this video, we’re going to give you a broad range idea of the percentage split you’re likely to receive, when dividing your assets. Now, if you’ve already seen
Video 3, you’ll know what the assets and liabilities consist of and you’ll be in a position to have a rough idea of how it is the court determines, or the law determines, what the percentage split is you’re likely to receive.

You’ll also, by now, be aware of the relevant factors and, of course, as I’ve said previously, what differentiates one case from another is the weight that’s given to those factors. However, we can give you some rough idea, in common cases, as to the scenario you can expect.

So, for example, in a common house and garden case, where the assets consist of the matrimonial property, or the relationship property that the parties lived in, which is subject to a mortgage, and where there are vehicles and some superannuation, and perhaps there are two or three children, who are under their teenage years, and you can expect that perhaps one of the parties has been pursuing their career and earning a reasonably good income, whilst the other party may have been working either part-time or not at all, not earning an income, or earning a part-time
income.

Then you’ve got some of those relevant factors that we’ve already discussed such as, income earning disparity, inability to recover quickly, and the care of young, dependent children and that will, of course, affect the number of hours somebody can work and the financial burden.

In those sorts of cases, you can generally expect that the person who has the primary care of the children, or substantial care of the children, will end up with more than 50% of the asset pool, that is, of course, if the
contributions prior to the marriage, in lump sums, and during the marriage, except for income, were equal. So, generally, that range could be maybe 60%, or 65%, perhaps, depending on the skill level of the person caring for
the children and their ability to work in the future. Also, depending on the child support, which is being paid. So, that’s one of the most common scenarios.

In other scenarios, for example, where there are no children and it’s been a long relationship, you can expect, perhaps, a 50/50 split, if there have been no special contributions, by way of inheritances or compensations. So,
regardless of the income each of you have earned, the split could still be 50/50, because of the length of the relationship and time you’ve lived together, the fact that there are no children, and the asset pool size.

In other instances, for example, second and third marriages or Defacto relationships, often the asset division is somewhat different, because, clearly, one of the parties may have bought more into the relationship, as a result of having been in a previous relationship or, it could be that both parties have moved into one of the party’s houses. In
those instances, your percentage split for the person who’s into the relationship with far less could be far less by way of percentage split. For example, perhaps 10%, 20% or even 30%.

So, that gives you an idea of the range of possibilities and, as I said earlier, every case is different as to the weight given to the factors. So, whilst the formula will be the same in terms of the assets and liabilities
are relevant, the formula as to what weight is given to each of those contributions factors and needs factors varies from case to case. You put all of them into a mixing pot and that helps you achieve the percentage
split.

That’s it for Video 5, of Module 5: Divorce and the Assets.

So, by now, you’re probably thinking, “how much is this going to cost and how long will it take?” Well, that will be answered in Module 6: Divorce, Costs and Fees. So, if you’re ready to proceed to Module 6, then move straight ahead. Bye for now!

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you.

Whatever it is that you choose, its our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you know where you stand.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Divorce Costs & Fees

Video 1: Overview

Transcript

Hi, this is video 1 of module 6. My name is Jacqui and I’m a Senior Associate at Pearsons Lawyers. If this is the first video you have watched I highly recommend you go to the top. Module 1 contains two very important checklists of procedures and actions you must take right now before you proceed any further. To get to module 1 simply visit the Pearsons Youtube channel or Pearsons website and follow the links. In this module there are three videos. The first video is an overview which you are watching right now. In the second video I’ll be discussing the pros and cons of the various fee structures in divorce matters. In the third video I’ll discuss how we do things at Pearsons. So if you’re ready to begin, lets head over to module 6, video 2.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you. Whatever it is that you choose, it is our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you ‘know where you stand’.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Video 2: Fee Structures

Transcript

Hi. Welcome to Video Two, of Module Six. My name is Jacqui and I’m a Senior Associate at Pearson’s Lawyers. If this is the first YouTube video you have watched, I highly recommend that you go to Module One, as it contains two checklists of important actions that you must take now, before you proceed any further. To get to Module One, simply visit the Pearson’s YouTube Channel or Pearson’s web site and follow the links.

In this video, I’m going to be discussing divorce costs and fee structures, as used by various Family Lawyers. So, if you’re ready to begin, let’s start.

In your research, you may have come across three different types of legal costing: 1) No win, no fee, 2) fixed price, and 3) Fee-for-service. I’m now going to discuss each of those in a little bit more detail.

A common misconception when clients attend at the office is inquiring whether we will act onto a no win, no fee cost structure. No win, no fee cost structures are ordinarily reserved for civil litigation matters, such as contractual disputes, personal injury claims, and those sorts of matters. In those matters, the court will determine a clear winner and a clear loser, and will make an order for the loser to pay the winner’s costs. In Family Law matters, however, the court is not focused on determining a winner or a loser, and is more interested in determining the best interest of the children, and what time they will spend with their parents, and also, to divide the matrimonial asset pool. In summary, in civil litigation matters, a court will determine who will pay the legal fees. In Family Law and Divorce matters, this rarely occurs, and accordingly, is not appropriate to use a no win, no fee cost structure, in Divorce and Family Law matters.

Another common query clients have when they attend at the office is whether we will act for a fixed price. Fixed pricing works well in matters where there is known outcome and known disbursements. Matters such as, conveyancing, probate, estate wills, all of which are relatively simple and procedural. Family law, on the other hand, is not usually simple, or procedural, and apart from a simple divorce application, there are many uncertainties and many unknowns. Those unknowns can include the behavior or your ex-spouse, who may become obstructive during negotiations. If the matter involves children, a family report may be required, and if there’s mental health concerns, psychiatric assessments can also be required. If we have a property dispute, valuations of the home and the family business, may also be required. Subpoenas may need to be issued for bank statements and other financial documents, and all of these unknowns have a cost. The only thing that is for certain, is someone will pay for those costs. If your lawyer is offering a fixed price contract, the only way that fixed price can include those unknowns, is to have a healthy buffer in it. So please check carefully, the terms and conditions of any fixed price contract.

Lastly, I’d like to discuss Fee-for-service. As the name suggests, Fee-for-service, you pay only for the service you receive. There are two methods for calculating Fee-for-service. Firstly, scale, which is determined by the government, and can be locked into a price list. Secondly, Lawyer time costing. The Lawyer sets the cost and it is costed at an hourly, or part thereof rate. Both methods ensure that you only pay for the service you require, no more and no less.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you.

Whatever it is that you choose, its our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you know where you stand.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Video 3: The Pearsons Way

Transcript

Hi. This is Video Three of Module Six. My name is Jacqui and I’m a Senior Associate at Pearsons. If this is the first video you have watched, I highly recommend that you go to module one, as it contains two important checklists of actions you must take now, before you proceed any further. To get to module one, simply visit the Pearson’s YouTube Channel or Pearson’s web site, and follow the links. In this video, I’m going to talk about how we do things the Pearson’s way. So, if we’re ready to start, let’s begin.

So, if you’ve made it this far, you’re probably thinking to yourself, ‘What can Pearson’s do for me as my family lawyer?’ Here’s three things that may help you in making that decision.

Firstly, we at Pearson’s pride ourselves on our efficiency. We’re a specialist Family Law firm, with a Family Law team. We have regular information sharing sessions, in which we discuss current legislation, case law, and our individual case loads. This would assist you as a client, as you would receive the benefit of the knowledge and expertise of the whole Family Law team. If ever an occasion you need to see two Lawyers at Pearson’s, you will only ever be charged for the one.

Secondly, at Pearson’s, we will provide you with interim estimates and interim billing. Billing is on a Fee-for-service basis. Estimates will be provided to you on the commencement of your file, at initiating proceedings, through to final hearing. The interim billing and the estimates will enable you to make an informed decision of how you want your matter to proceed. Also, it alleviates those awkward moments of not knowing what it is it will cost.

Lastly, we have these procedures and processes in place so that you, as a client, know where you stand. Hopefully, these videos have been useful to you, and we at Pearson’s can be of assistance to you. Bye, for now.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you.

Whatever it is that you choose, its our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you know where you stand.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Divorce & Miscellaneous

Video 1: Overview

Transcript

Hi and welcome to Video 1 of Module 7 of the series. My name is Bani Mishra, and I’m a Senior Associate here at Pearsons Lawyers. If this is the first video of ours that you’ve seen, I highly recommend that you start at the beginning.

Module 1 contains two checklists of important actions that you need to take right now before proceeding any further. To get there, you can access our Pearsons’ YouTube Channel or visit the Pearsons’ website and access the links. This module contains several extra videos on topics that don’t fit neatly into the other modules simply because they cut across several different topics. The first video is this overview that you are watching right now.

In Video 2, we cover the topic of the “What are the different ways to settle?” In Video 3, we cover same-sex settlements. In the future we intend to add further videos to this module depending on demand. So, when you’re ready, head on over to Video 2 of Module 7.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you. Whatever it is that you choose, it is our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you ‘know where you stand’.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Video 2: Ways to Settle

Transcript

Hi and welcome to Video 2 of Module 7 of the series. My name is Bani Mishra, and I’m a Senior Associate here at Pearsons Lawyers. If this is the first video of ours that you’ve seen, I highly recommend that you start at the beginning.

The first module contains two checklists of important actions that you need to take right now before proceeding any further. To get there, you can access the Pearsons’ YouTube Channel or the Pearsons’ website and just follow the links.

In this video, we’ll be talking about an important question that cuts across all the other topic areas. That is, “What are the different ways to settle?” So, if you’re ready, let’s begin.

If you’ve watched all of our videos, you know that we have covered a lot of ground. So, by this stage, a lot of people are wondering “What do we do next?” When we see people in our office, the first thing that we talk about is negotiating.

The starting point in relation to any property dispute involves looking at ways to negotiate and ways to settle. In doing that, we consider the pre- action procedures as part of the Family Law Act, which requires parties to try and resolve matters before they go on to looking at other methods of settling.

So, the first step is to find out the financial position of the parties. We do this by way of exchange of letters between the parties and their solicitors. We try to establish what the financial position is so that we can better advise you and make an assessment as to the most appropriate proposals to put to the other side.

The best case scenario for the parties, whether they’ve already negotiated and have come to us or whether we negotiate on their behalf, is that when we reach agreement we can formalize those orders by way of Consent Orders. So, what would happen is that the parties would provide their terms of agreement.

We would then prepare those documents, each of the parties would sign those,and they would be submitted to the court for the court’s approval. This process is known as the Application for Consent Orders.

In this process, the court has to be satisfied that the property orders that are being sought by the parties are, in fact, just and equitable. If they are, the court then approves those orders and the parties now have final property orders which they can rely on.

In the event negotiations aren’t as successful, the parties can consider looking at certain other methods including Private Mediation. When considering Private Mediation, the parties do have a level of control.

They can control who the Mediator will be, they can control where the venue will be, and they have much more scope to put forward their ideas without having to worry about a court determination. Those are the advantages of having a Private Mediation.

In contrast, the downside of having a private mediation can often be the cost which involves having to pay for the venue and having to pay for that Mediator as well as the attendance of your solicitors.

There are circumstances where you can have conferences or mediation that is between the parties and their solicitors alone. However, not having a mediator involved can create some uncertainty.

Having looked at these potential methods of settlement, if the parties can resolve their matters either by way of a Private Mediation or through round table discussions with the other party and their solicitor, then, again, you can engage the Application for Consent Orders process and have those final orders made.

In the event that you’re not as successful as you’d like to be and we are back in the position of where to go next, we then have to consider: A) Whether there are any urgent issues, and B) Whether or not we now need to go to court through the court process.

If it is the case that there are urgent issues where, including certain things where the parties may not have access to funds or there may be one party refusing to leave the premises, all of these issues need to be dealt with urgently and can be accessed through the court process. If that is the case, you can choose whether or not you deal with any court application through the Federal Magistrate’s Court or through the Family Court.

Both courts have their advantages and disadvantages. The Family Court provides two court-appointed mediation sessions essentially known as “conferences.” However, the Federal Magistrate’s court only allows for one conciliation conference.

Again, you can discuss with your lawyer which will be of more benefit to you; however, generally speaking, the majority of cases go through the Federal Magistrate’s Court because it is easily accessible and more cost-effective. The Family Court is generally reserved for more complex cases and for when you have more time on your hands to resolve matters. So, that’s a decision that you can make with your lawyer.

If in the event that you can come to an agreement during the court process, you can of course resolve matters by way of consent through a similar process where both of the parties sign a minute of consent and they hand that to the court to formalize. It’s not the same as the Application for Consent Orders process and in many ways it’s more simple. That’s it for this video. The next video is on same-sex settlements. So, when you’re ready, head on over to Video 3, Module 7 of the series.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you.

Whatever it is that you choose, its our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you know where you stand.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Video 3: Same Sex Divorces and Settlements

Transcript

Hi and welcome to Video 1 of Module 7 of the series. My name is Bani Mishra, and I’m a Senior Associate here at Pearsons Lawyers. If this is the first video of ours that you’ve seen, I highly recommend that you start at the beginning.

Module 1 contains two checklists of important actions that you need to take right now before proceeding any further. To get there, you can access our Pearsons’ YouTube Channel or visit the Pearsons’ website and access the links.

This module contains several extra videos on topics that don’t fit neatly into the other modules simply because they cut across several different topics. The first video is this Overview that you are watching right now.

In Video 2, we cover the topic of the “What are the different ways to settle?” In Video 3, we cover same-sex settlements. In the future we intend to add further videos to this module depending on demand. So, when you’re ready, head on over to Video 2 of Module 7.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at http://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you.

Whatever it is that you choose, its our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you know where you stand.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

Thank you very much; I truly appreciate all the help you have given me. Please thank Leanne and the team at Pearsons for the wonderful job.

Teresa