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Frequently Asked Legal Questions

General

How much will legal fees cost me?

Streeterlaw Sydney lawyers' fee policy is designed to REALLY help you when it comes to legal costs. Our legal fees are deliberately charged as you go. The benefit is you will always know where you are up to with your legal costs. Other lawyers...

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Family Law FAQs

Will there be a jury if my divorce or child custody case goes to trial?

No. Jury trials are not held in the Family Law jurisdiction. See Family Law case examples on the Family Law blogsite...

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Why should I have a written agreement about child custody?

After divorce or separation, it is advisable to have a written agreement concerning who the child will live with and what time they will spend with the other parent. In Australia, a written agreement is called a Parenting Plan. The Parenting Pla...

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Why is Family Law litigation so expensive?

Family court litigation is expensive because of a number of factors: (a) Firstly the process – the parties are required to participate in alternative dispute resolution and comply with the Court Rules requiring preparation of documents and evide...

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Why do I have to give all my financial documents to my ex-partner?

Many divorcing couples are hesitant when asked to give their financial documents to their ex-partner. This can include tax returns and many bank account statements. The reason behind it is the requirement for "Full and Frank Disclosure...

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When can child custody be filed for or decided?

In divorce and separation, parents often wonder what they need to do before commencing Court proceedings in respect of children and child custody. Prior to filing an application for parenting orders in the Federal Magistrates Court of A...

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What types of Prenuptial Agreements are there?

Most commonly known as a prenuptial agreement or prenup there are now six types of “financial agreements” for couples. These are also called “binding financial agreements” . These include:...

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What should I take when separating?

Are you the one leaving your house in a separation? If you are leaving your house, either planned or in circumstances of urgency, such as being a victim of domestic violence, be sure that you ta...

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What is the effect of separation and divorce on my will?

A will gifting property to a spouse is void upon divorce. Until the time of divorce, however the will is valid. It is important for separating couples to change their wills following an adjustment of property interests. See Family Law case e...

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What is the difference between the Federal Magistrates Court and the Family Court of Australia?

The Federal Magistrates Court of Australia was established in 1999 to help relieve the overburden on the Family Court of Australia to provide a forum to hear less complex matters. The Federal Magistrates Court deals exclusively with divorce applic...

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What is the definition of ‘shared parental responsibilities’?

A common misconception for parties in family law disputes is the difference between an order for equal shared parental responsibility and an order for equal time with the children. The two orders, while separate, are not mutually ex...

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What is the definition of marital property?

All property of the parties is considered “marital property” even if a particular asset is legally in one party’s name or was owned by them prior to marriage. The Court may consider each party’s contribution to the marital property. The e...

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What is family violence or domestic violence?

Family violence is any physical violence, threats, emotional and psychological abuse and includes damaging property. Violent behaviour is unlawful and in addition to protections and the family law, there may be protections given under the crimina...

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What is an irretrievable marriage breakdown?

From 1975, the Divorce Law in Australia has stipulated only one ground for a Decree of Dissolution on Marriage – that is, that the marriage has broken down irretrievably [s48(1) Family Law Act FLA]. The sole evidence for establishing the br...

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What is an ex parte order? Can I get a temporary custody order?

In Australian family law, an ex parte order is made in circumstances of urgency where the other party has not attended at Court. It is possible to get an ex-parte interim order for parenting in circumstances where not having an urgent order may place...

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What impact does divorce have on my unresolved children or property claims?

A divorce makes no difference to unresolved parenting disputes. Property proceedings must be filed in court within 12 months of the date of divorce. See Family Law case examples on the...

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Shared parental responsibility: what is it and is it possible to get “sole parental responsibility”?

Australia’s Shared Parental Responsibility, as defined by the Family Law Act 1975, requires both parents to make decisions regarding issues affecting the long-term welfare of their child. Such decisions include where the child will live, what...

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Prenuptial Agreement. Do I need one? Why? How?

A Prenuptial agreement is a legally binding financial agreement. Also know as a prenup agreement, it is a way of recording what each person is bringing into a relationship - whether marriage or defacto. It is not created in expectation of a divorce....

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Once child custody issues are agreed upon or ordered, can they be modified?

In Australia, an agreement or orders can be modified by consent of both parties. In the circumstances where a Court has made orders for parenting, the orders can be amended by an Application for Consent Orders, annexing the modified proposed order...

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My ex-spouse threatens to take the children to live interstate or overseas. What can I do?

If you have a reasonable fear that your ex-spouse will take the children to live interstate or overseas without reference to you, then you must immediately seek orders restraining the other parent from taking the children outside of the defined...

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Is child custody impacted by dating?

The Australian Family Law Court is not concerned with the fact that either parent has re-partnered or dated another person following separation or divorce. The paramount principle applied to all decisions concerning children in the Family Court i...

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In Family Law, how does the death of one of the parties affect an unresolved property division following separation?

In the event of the death of one of the parties to Family Law property proceedings, the deceased person’s estate may continue the proceedings. It will be necessary to apply to the court for procedural orders to allow this to occur. See Fam...

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In divorce what steps do Australian courts take when dividing property?

The Court uses a four-step process when altering property interests between spouses. Step 1 is to identify and value the property. Step 2 is to consider the contributions (financial and non-financial) to the marital assets. Step 3 i...

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In divorce what factors are considered by a judge when dividing property?

Financial and non-financial contributions to the acquisition, conservation and improvement of property are to be considered by the Court, along with the additional consideration of the age and state of health of the parties, the income, property and...

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In a divorce or separation, can I obtain injunctive or urgent orders to protect property or a business?

Yes. The Court may order that one or both parties be restrained from selling or otherwise dissipating a marital asset. It is possible to obtain an injunction against third parties regarding marital property in limited circumstances. See Fa...

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In a divorce how do I work out the value of property? What date do we work with?

“Fair market value” is a good starting point for most valuations. A valuation from a registered valuer is recommended for real property and business interests. The date to value property is generally at the date of hearing rather than the date of...

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If we cannot agree on a child custody arrangement, how will a judge decide?

Section 60C (c) of the Australian Family Law Act 1975 defines how the Court determines what is in a child’s best interests. The primary considerations in child custody are the benefit to the child of having a meaningful relationship with both...

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If I win my case in the Family Law Court will my ex-spouse be ordered to pay me my legal costs?

No. Unlike other jurisdictions, in family law the general rule is that each party to the proceedings bears their own costs. An application for costs will be considered at the discretion of the Court based on factors such as: 1. the...

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If I am divorced, can I still apply to have property adjusted by the Court?

Yes but you must file an application for property adjustment with the Court within 12 months of the date of divorce.  In Australia, an application cannot be filed later than 12 months following divorce without leave of the Court. See F...

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If child support is not paid, can a parent refuse to allow visitation?

No. Children should not be used as a bargaining chip for issues between the parents. The paramount consideration in Australian Family Law is what is in the best interests of the child. Children have a right to a meaningful relationship...

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I earn more money so do I get more for contributions?

Generally, no. Particularly when the other party has made substantial non-financial contributions by way of caring for children and the home. Superior earnings are not a ‘special contribution’....

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I am separated do I have to get a divorce?

There is no legal requirement to end a marriage on separation. If one party makes an Application for Divorce however and provided that all other elements of the divorce are met, namely: Jurisdiction Separated over 12 mon...

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How long will it take for the Court to make orders?

This depends on the Application. Generally children’s matters get priority at the Family Court and the Federal Circuit Court over property matters. Of those cases, priority will be given to those with the most serious risk. It also depends on the i...

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How do I prepare myself to go to court?

It is advisable to seek legal advice prior to making any application in either the Federal Magistrates Court of Australia or the Family Court of Australia. A solicitor will be able to present your argument before the court on your behalf. S...

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How do I formalise separation?

Separation is primarily a question of the facts and secondarily a question of law. When you conduct yourself in a way that demonstrates to the other party as well as to the rest of the world that you are no longer in a spousal relationship (eg....

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Grandparents rights – can they see their grandchildren?

Do grandparents have the right to visit and see their grandchildren when their children divorce or separate? The principle guiding the Family Law Act of 1975, remains as ‘what is in the best interests of the child...

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Free ebook Separation and Divorce Advice

Looking for advice on separation or divorce? Streeterlaw's free Parting Ways: Divorce and Separation is a guide to your rights and responsibilities. The booklet comes with a series of YouTube vid...

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Does the mother get preference in disputes of child custody?

No. Every child custody matter is determined by the relevant facts of the matter. In some instances, where the child is very young and the mother has been the infant’s primary caregiver, it is likely the Court would make an order consist...

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Do grandparents have rights to see their grandchildren under the Family Law system in Australia?

In Australian family law, grandparents do not have an automatic right to spend time with their grandchildren. This situation can arise due to the divorce or separation of their own children. However, grandparents may bring an application before the C...

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Divorce lawyers in Sydney – How to choose

Divorce Lawyers in Sydney can be found on the internet, in local newspapers and even at shopping centres. Yet selecting a divorce lawyer is an extremely important step in moving forward and achieving justice....

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Child custody: Will my child have to speak in court?

No. Except in exceptional circumstances, no child will give evidence in court. In some cases, the child may have their own lawyer appointed to them by the Court to speak on their behalf. See Family Law case examples on the...

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Child custody: Who will get custody of our children?

The term “custody” and “residence” of children is no longer used in Australian Family Law and has been replaced with the phrase “lives with”.  “Child custody” is however still the most commonly understood term used. In a divorce o...

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Can the Court refuse a parent unsupervised time with their child?

Yes. An issue often raised in disputed children’s cases is whether or not there is an “unacceptable risk of abuse” to the child if time the child spends with one of the parents is not supervised. This language comes from the High Court Decision...

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Can superannuation be divided in an Australian divorce?

Yes but only with a splitting order by the Court made pursuant to S90MT of the Australian Family Law Act 1975. It is possible to split superannuation between the parties in most cases. See Family Law case examples on the...

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Can my ex-partner get my superannuation?

Superannuation is generally treated as property, although a different form of property, by the Court. Superannuation interests can be split between the parties in certain circumstances although cannot generally be taken as cash prior to the age of re...

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Can I keep the assets I brought into the marriage?

It depends on the circumstances. As asset division is determined largely on the basis of contributions, the other party may have made ongoing contributions to that asset during the course of the relationship. The initial contributions are generally g...

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Can couples live apart but still be considered de facto partners?

A 2014 case in the Family Court of Australia has determined the need for a de facto couple to clearly communicate with one another when their relationship ends. Cadman & Hallett [2014] FamCAFC 142 (11 August 2014) involved a gay coupl...

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Can children decide who they will live with after divorce?

The Australian family law has now changed in regard to the views of children in parenting matters. It is no longer the case that children over the age of 14 get to decide who they will live with after his or her parents divorce or separate. The la...

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Can a parent’s rights to child custody be given to other relatives or other people?

Yes. The Court may make a Parenting Order for a child to live with or spend time with a person who is not that child’s parent. It is essential, however, in child custody to consider what is in the child’s best interests before making such an orde...

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Can a parent change a child’s name without the other parent’s permission?

In the event that the other parent is also on that child’s birth certificate, the consent of both parents is required. See Family Law case examples here....

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After divorce who do the children live with? Can I get joint custody?

In most divorce and separation cases, the children will continue to live with the primary caregiver. There is, however, no legal entitlement for this to occur. The Australian Family Law Act requires the Court to consider shared care of the childre...

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Can I date while going through a divorce?

Yes - No - Maybe. It is completely up to you! Subject to any other personal restrictions or other religious rules. You need to be separated for a year before being formally divorced and granted a divorce order by the Family Court. The key element...

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How long does a divorce take?

The divorce process in Australia has been streamlined. You must be separated from your spouse for a year and a day before the application can be filed in the Court. Upon filing of the divorce application, it is expected that the hearing date wi...

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How much does a divorce cost?

There are “do it yourself” divorce kits available from the Family Court website.  If you are able to complete this yourself the only cost is the Family Court filling fee in lodging the application, serving the application on the other party and...

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What is the definition of a de facto relationship?

The Family Law Act has devised a threshold that a couple must satisfy before they can be defined as de facto in the eyes of the law. While it relies on each couple’s circumstances, the following factors must be taken into account:...

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Commercial Dispute Resolution FAQs

What is Voluntary Company Liquidation?

Company Liquidation refers to when a company's assets are liquidated - that is, redistributed or sold. Voluntary liquidation of a company starts when the directors pass a resolution. If the business is still operating when the re...

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What is Voluntary Administration?

Voluntary Administration is a legal way of giving a business an opportunity to continue to trade when facing insolvency. Trading insolvently – not being able to pay debts as and when they are due ...

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What is insolvent trading?

Insolvent trading is a criminal offence in Australia. This is where a business incurs debts knowing they will not be able to pay these debts as and when they fall due. Insolvency is a serious issue. To knowingly trade insolvently is ill...

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What is a Statutory Demand?

A Statutory Demand is a demand made under 459E of the Corporations Act. This document is not issued by the Court. Failure to comply with a Statutory Demand or to apply to the Court to set it aside, will result in the company bein...

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What is a Letter of Demand 222AOE Notice?

Are you prepared for a letter of demand to directors from the Australian Tax Office - 222AOE Notices? Directors may become personally liable for tax debts of their companies in which they are directors if they fail to comply with the terms of a S...

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What are Commercial Litigation Lawyers?

A Law Society Accredited Specialist is a lawyer with at least five years relevant practice in the specialist area of law.   As part of the rigorous accreditation process, a commercial litigation lawyer must:...

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Insider trading definition

Insider trading occurs when a person takes advantage of information that is not public and gains a benefit in the trading of stocks or shares. See also Insider Trading blogposts...

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What is fraud?

At its essence, Fraud is theft by deception. Often it is an abuse (or use) of a relationship. Fraud is not limited to any particular jurisdict...

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Debt Recovery FAQs

Statutory Demand – Common Mistakes To Avoid

Receiving a Statutory Demand, whether in person or even through the mail, is something you cannot ignore. The Statutory Demand is a powerful document in Australia. Failure to respond to a Statutory Demand within 21 days will be in...

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Bankrupt – what can and can’t you do?

Bankruptcy has serious effects on the individual. Upon becoming bankrupt almost all of their property goes to (‘vests in’) the person's Trustee in Bankruptcy. It is then an offence for an undischarged bankrupt person to:...

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What is the difference between bankruptcy and insolvency?

At a conceptual level, Bankruptcy and Insolvency both mean the same thing. The technical legal definition of Bankruptcy and Insolvency varies between jurisdictions. In Aus...

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When is legal action with debt recovery worth the expense?

This is actually the second question we need to ask. The answer to it will depend on the answer to the most important first question. This question is "Does the debtor have funds to pay?"...

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When should I take legal action with overdue accounts?

Deciding when to take legal action can be quite simple. It is when you want to FORCE the debtor to pay you what you are owed!  The debt collection process will de...

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Disputed Guardianship and Wills FAQs

What is the Guardianship Tribunal?

The Guardianship Tribunal is a specialist court of justice dealing with financial management and guardianship matters. They can also review Power of Attorney. They have concurrent jurisdiction with the Supreme Court of NSW,...

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Who should I appoint as executor of my will?

The Executor of your legal will is an important responsibility. It can also be a stressful one. You should choose someone who you trust is likely to live longer than you will have th...

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What is probate?

Probate is essentially the process by which the person named as the legal representative of the deceased person approaches the Supreme Court, as the highest authority in the land (of New South Wales) and requests that the court “prove” or appr...

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Are legal will kits OK?

There is an old saying "you get what you pay for". Free wills are no exception. Your last will and testament is your opportunity to make clear your intentions after your death. Some businesses will sell you a simple legal will kit or offer an online...

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Does a legal will need to be witnessed?

Absolutely yes. A document may have some value as “evidence” of intention but the requirements in New South Wales have strict provisions for witnessing of the signature of a legal will. We strongly recommend you obtain legal advice as...

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Can a legal will be handwritten?

The law relating to making legal wills is extremely technical. There is no prohibition against a last will and testament being handwritten providing certain other substantive, formal and technical aspects are attended to.  We strongly recom...

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What happens if you die without a will?

The law in New South Wales provides for a “formula” to work out how your assets will be divided among your family and relatives. If you wish for your estate (what you own when you die) to be distributed in a different way, then you sho...

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How do you remove an incompetent Executor?

Beneficiaries of wills and estates, where probate already has been ordered, are sometimes faced with a conundrum of how to deal with an Executor who is not doing the job properly. In such circumstances it may be possible for the beneficiar...

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Can executors of a will be taken to court by beneficiaries?

The role of the executors of a will is to identify and collect the assets of the estate and then distribute them according to the will left by the deceased. But what happens if the executors fail to perform their role properly? ...

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How to ensure your will is valid

Homemade documents, such as do-it-yourself will kits or handwritten notes, are often inadequate in clearly stipulating what you wish to happen to your assets after you die. A properly laid out and executed will can avoid unintended conseq...

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How do you finalise your ‘digital’ death?

While preparing a will is seen as essential for anyone who owns property or possessions and has dependents, details and security of a person’s online accounts and profiles is oft...

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