Category: Blog

Discover how expunging a conviction breathed new life into a client’s career and future. Alex, burdened by a past offense that lingered on his Police Certificate, faced ongoing challenges despite no formal conviction. With our legal guidance, Alex removed a Spent Conviction Order. Explore how this legal step not only unlocked new professional opportunities but also restored his confidence and personal freedom. Read on to see how removing the shadow of a past mistake can profoundly impact one’s life.

Names have been changed to protect our client’s privacy.

Overview: Transforming Alex Williams’ Future

Alex Williams faced a significant challenge due to an incident from his past. In his youth, Alex was involved in a regrettable event that led to charges of indecent behavior among other offenses. Although the Magistrate at the South Australian Magistrates Court opted not to record a conviction, the incident still appeared on Alex’s National Police Check. This lingering mark negatively impacted his professional and personal life.

The Incident

In 2011, Alex, then a student, found himself entangled in a series of unfortunate events resulting in criminal charges. Despite his clean record and the incident being considered out of character, the court did not record a conviction, imposing only a fine and court fees. However, this non-conviction still followed him and affected his career prospects and self-esteem.

Court Remarks

Magistrate’s Statement: “I will regard this as an out-of-character incident which I suspect will be highly unlikely to be repeated. I will therefore deal with the matter by not recording a conviction for either count, without conviction. I will impose a fine of $150. Court cost fees and a victims of crime levy will apply, but that’s without a conviction.”

Legal Pathway to a Clean Record

To address the ongoing impact of the recorded offense on Alex’s Police Certificate, he sought legal assistance. With guidance from Elena Leonardos and Sophie Gauvin, Alex pursued a Spent Conviction Order to have the offense removed from his record.

Steps Taken:

1. Application Preparation: In January 2024, Sophie Gauvin of Adelaide Legal Solutions prepared the court forms for Alex’s Spent Conviction Order, which Alex reviewed and signed.
2. Document Collection: In February 2024, Elena Leonardos requested the court’s remarks to finalize the application documentation.
3. Filing and Follow-Up: After ensuring all details were accurate and signed by Alex, Ms. Leonardos filed the application with the court.

Official Decision

The court approved Alex’s application for a Spent Conviction Order. This decision meant the offenses no longer appeared on his Police Certificate, resulting in a transformative impact on his life.

Transformative Impact

Professional Life:

• Employment Opportunities: With a clean Police Certificate, Alex successfully applied for several positions, ultimately securing a role with a leading corporation.
• Career Growth: Freed from his past, Alex quickly advanced in his career, earning recognition for his contributions.

Personal Growth and Stability:

• Confidence Restoration: The removal of the conviction significantly boosted Alex’s self-esteem, enabling him to pursue his ambitions without the shadow of past mistakes.
• Travel Freedom: With his record cleared, Alex enjoyed the freedom to travel internationally for both career and leisure.

Conclusion

Alex’s case highlights the profound impact that a Spent Conviction Order can have. From the initial legal support to the final court decision, this case underscores how effective legal representation can help individuals overcome past challenges and reclaim their futures.

Law Firm: Adelaide Legal Solutions

Key Legal Representatives:

• Elena Leonardos, Barrister and Solicitor
• Sophie Gauvin, Barrister and Solicitor

This case study demonstrates the significant role legal professionals play in transforming their clients’ lives and achieving justice.

In my experience within the Federal Circuit and Family Court of Australia, I’ve often encountered affidavits that, disappointingly, contain unhelpful and inflammatory content.

Reflecting on my own earlier career, I recognise that I may have been guilty of this at times. However, it’s important to note that it’s not solely new or inexperienced legal practitioners who draft such affidavits; even experienced lawyers can occasionally fall into this trap. It’s imperative for lawyers to pause and consider their fundamental duties. At times, we might become too engrossed in the narrative, losing sight of the primary objective.

We are not simply mouthpieces for our client, we are facilitators of justice with duties to the Court. We are operating in a system that should only be used when resolution through agreement is not possible.

With that in mind, I want to assist my client’s and other practitioners get back to the basics and draft helpful affidavits.

I have created this guide for a few fundamental reasons:

• 1. I have noticed a trend in our Courts that needs to end. Irrelevant, unhelpful, expensive affidavits that detract from a litigant’s application.
• 2. Litigants and indeed lawyers are often unsure if and when they need to file an affidavit.
• 3. Litigants and unfortunately some of lawyers are unsure what information they can and cannot include.

Let’s get down to the basics:

What is an affidavit?

An affidavit is a statement in writing usually prepared by a lawyer on behalf of a party to a Court proceeding or on behalf of a witness. It is the way evidence or facts are given to the Court.

It is a document that needs to be given to all people within the Court proceeding: the Judge or Registrar, other lawyers, other litigants or any independent children’s lawyer (if or when appointed). It is filed in the Commonwealth Portal, then the sealed version is served upon the parties (litigants).

Your affidavit is integral to your case. You will need to swear or affirm its accuracy and if you do not tell the truth, there can be serious consequences including imprisonment.

If your matter proceeds to trial, you will be cross examined on your affidavit, you will most likely be criticised and interrogated about any inconsistencies.

Frequently, I observe lawyers drafting affidavits on behalf of their clients, with the clients often unaware of the language being used. It surprises me to read the frequent inclusion of legal jargon in litigants’ affidavits.

Affidavits ought to reflect the words of the individual providing evidence and should be expressed in clear, everyday language.

When is an affidavit required?

An affidavit is required when you have an application or response to Orders of the Court, or you are directed to file an affidavit by a Judge or Registrar.

You are required to file an affidavit with any application or response seeking interim Orders, or as otherwise directed by the Court. There are certain Practice Directions relating to affidavits. If you wish to locate the form required for an affidavit, you can find the link below located on the Federal Circuit and Family Court Website:

• Family law and child support: www.fcfcoa.gov.au/fl/forms/affidavit

Should you prepare your own affidavit?

I do not recommend preparing your own affidavit. I do however recommend that you do your homework and consider what information you want within your affidavit prior to consulting with an experienced lawyer, as this simple exercise will save you money.

Legal advice should help ensure that your affidavit is helpful to your application. However, with the large disparity in the quality of legal advice you need to exercise caution. Some lawyers are obviously more skilled than others in drafting concise, helpful and relevant affidavits, and some lawyers are better at reigning client’s in when it comes to the contents of their affidavits.

Frequently, I see unnecessary and hurtful information in an affidavit that should never have been allowed. The Court does not need to know that in 1985, your husband encouraged you to abort the baby who is now a child within a proceeding. The Court does not need to know that your wife had an affair with a colleague at work and the intimate details about who said what, when in a property settlement.

Sometimes the hurtful, harmful information inflames your case and rather than assist in resolution, it assists in unnecessary costs. An experienced lawyer will let you know when to elaborate and will also let you know if you are giving information that is irrelevant to your case.

Affidavits that use inflammatory information that seeks to complicate a proceeding should be discouraged. The best practice is to consider what you wish to say and then contact us so that we can assist you to draft a helpful, cost effective statement of your evidence.

Structuring your Affidavit:

Your affidavit should be easy to read, in size 12 font, numbered pages and one sided. Each point or relevant fact you wish to put to the Court should be divided into numbered paragraphs.

We always encourage headings to indicate the topics or subject ie: Background to relationship, Post Separation Contributions, Care Arrangements for the Children after separation, Future Needs are just some examples.

Affidavits by a Witnesses

Often in a family law matter, family members or third parties wish to provide evidence. Usually, the document is self-serving and unhelpful. Before embarking on this costly exercise you should think about the following: is it relevant and is it helpful?

When relying on a third party affidavit it will need to be separate from any affidavit the party drafts. It will then need to be filed and served upon all parties to the proceeding. If the affidavit is not relevant, we would encourage you to reconsider the document as it just assists in escalation of fees.

What can you say in an affidavit?

As previously defined, an affidavit is a statement of facts. You need to include all relevant facts that support the matter you currently have before the Court. For instance, if your matter relates to spousal maintenance, your affidavit needs to include the relevant information a Judge will be looking for in either granting or refusing the application, depending upon which side of the proceeding you sit.

If you are the applicant, your affidavit needs to include details relating to your financial need and the other parties capacity to pay for your needs.

If you were the respondent, conversely, you may be indicating the opposite position unless of course there is a disparity in income and no reason not to pay the outgoings. Ideally, a respondent in such applications should consider who they would rather give their money to, a law firm or their family. Ego and fixed positions frequently make the Court a place where battles a fought on principle rather than merits.

I would recommend that if you have an application on foot, the affidavit is drafted with careful consideration of the legislative requirements. That’s why you need good legal advice from an experienced resolution based lawyer. It imperative that only relevant and helpful information is included.

Your affidavit should support the orders you have asked the Court to make in your application or response. The length of your affidavit in Division 2 can usually be no more than 10 pages long with 5 annexures unless specifically Ordered to the contrary. If you do not use a lawyer, will need to ensure that you read and understand the Family Court Rules and Practice Directions.

Note: in family law proceedings, an affidavit in support of an application for interlocutory orders must not:

In Division 1:

• exceed 25 pages in length for each affidavit or contain more than 10 annexures

In Division 2:

• exceed 10 pages in length for each affidavit or contain more than five annexures

If you wish to rely upon more than one affidavit, you need permission from the Court. To be clear, you can only rely on one affidavit from yourself, and one affidavit from each witness.

For more information we recommend you review rule 5.08 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Family Law Rules) this clarifies the limit on the number and length of affidavits.

Can I give my evidence in Court instead?

The Court has a preference that evidence is provided in written form. Frequently self represented litigants stand in Court and give evidence from the Bar table. It is usually to their detriment.

When a litigant or even a lawyer gives the evidence in Court rather than reliance on the material they are not putting their best case forward.

There is limited opportunity to give a personal account of your evidence in Court. Most evidence is provided by affidavit. This allows cases to run more efficiently, smoothly and efficiently because the parties have notice of the other parties position.

What should not be included in an affidavit?

Generally, an affidavit should not set out the opinion of the person making the affidavit; that is, it must be based on facts, not your beliefs or views. The exception is where the person is giving evidence as an expert; for instance, a psychologist or licensed valuer.

Where possible, you should avoid referring to facts that are based on information received from others. This is known as hearsay evidence.

Note: in family law proceedings, there are a number of exceptions to the hearsay rule. If you need to rely on hearsay evidence in your affidavit, get legal advice to see whether it would be admissible in court.

You cannot not refer to anything said, or documents produced in connection with dispute resolution or any attempt to negotiate a settlement of your dispute outside of court.

Negotiations or offers exchanged in medication are not admissible. There are some exceptions.

If you wish to use such information, I encourage you to obtain legal advice. If you are unable to afford a lawyer, you should read section 131 of the Evidence Act 1995 (Cth).

Attaching documents

Often in affidavits, litigants refer to documents. If you intend to rely upon a document in your evidence it needs to be attached to the back of your affidavit and is referred to as an exhibit or annexure. An example of this could be a settlement statement from the sale of a home, a child’s report card, a letter from the bank about home loan arrears, a letter from child support about an assessment.

Annexures require clear identification, you could use numbers or letters but they Annexures need to have a witness clause on them and if there is a large bundle, you should have numbers.

The statement must be signed at the same time as the affidavit and by the authorised witness such as a lawyer or a Justice of the Peace.

For more information about annexures or exhibits in family law proceedings, see rule 8.15 of the Family Law Rules.

Signing an affidavit

The person making an affidavit is known as the deponent. There is a requirement that the deponent sign the bottom of each page in the presence of the witness. The last page of the affidavit contains what is called a Jurat and requires compliance with the following:

• the full name of the deponent, and their signature
• if the affidavit is sworn or affirmed
• the day and place where the deponent has signed the affidavit, and
• the full name and occupation of the authorised witness, and their signature.

When there is a written alteration to the document, you must ensure you and the witness initial that alteration.

From the onset of the document, the party/litigant needs to properly identify themselves by including their full name, occupation and residential address on the first page of the affidavit. There is an exception in circumstances where disclosure of such information places the person in an unsafe situation.

If a deponent is illiterate, vision impaired or do not have a strong command of English, or are otherwise unable to sign an affidavit there is a requirement that an alternative Jurat is completed.

For more information about requirements for an alternative jurat, please see rule 8.17 of the Family Law Rules or rule 15.14 of the General Federal Law Rules.

There is a requirement that the alternative Jurat is used in such situations and I have seen cost orders against lawyers who have failed this requirement. It can be embarrassing for the litigant and incredibly embarrassing for the lawyer when this occurs.

Where the deponent is a party in a family law parenting proceeding, and they do not disclose their residential address, they must provide their residential address to the Court by email. The Court will record the address as ‘not to be disclosed’, other than by a court order: see rule 8.15(2) of the Family Law Rules.

Some Tips for helpful affidavits

I end this Guide with the following checklist that is critical to a well drafted affidavit:

1. Organise Your Information: Before drafting the affidavit, organise all relevant information and documents related to the case.

2. Be Clear and Concise: Keep your affidavit clear, concise, and to the point. Avoid using legal jargon or complex language that may be difficult for others to understand. Clearly state the facts of the case and avoid including opinions or speculation.

3. Include Only Relevant Information: Ensure that the information included in the affidavit is relevant to the case. Avoid including extraneous details that may distract from the main points. Stick to the facts that are directly related to the issues being addressed in the legal proceedings.

4. Use Specific Examples and Dates: Provide specific examples and dates to support the facts stated in the affidavit. This helps to establish credibility and demonstrates that the information provided is accurate and reliable.

5. Provide Supporting Evidence: Include supporting evidence such as documents and photographs to corroborate the facts stated in the affidavit. This helps to strengthen your case and provides additional credibility to your claims.

6. Swear or Affirm the Truthfulness: Affirm or swear under oath that the information provided in the affidavit is true and accurate to the best of your knowledge and belief.

7. Review and Revise: Carefully review and revise the affidavit before finalising it. Check for any errors or inconsistencies in the information provided and make any necessary corrections. It may also be helpful to have someone else review the affidavit to ensure clarity and accuracy. It may also be helpful to wait a day or two before finalising the affidavit.

8. Seek Legal Advice: If you are unsure about how to draft an affidavit or what information to include, seek legal advice from an experienced family lawyer. They can provide guidance and assistance to ensure that your affidavit meets the necessary legal requirements and effectively presents your case.

This guide seeks to provide assistance with drafting helpful affidavits but it does not negate the need to seek experienced legal advice from an experienced resolution based family lawyer.

When in doubt we invite you to call us for an initial consultation. For more information you can email us on info@alslaw.com.au. and communicate with Sophie or Elena on how we may help you through your legal journey.

Are you wanting to know more about Surrogacy? Ask us, we are here to help.

Surrogacy is certainly on the rise, both locally and on a global scale. In Australia adoption is heavily regulated, which makes helping a child in need difficult. Surrogacy is now becoming a more acceptable option for intended parents.

Sadly, some women are unable to conceive or maintain a pregnancy. It could be devastating. The reasons are plentiful; you could have a medical issue, be without a partner, be in a same sex relationship. Whatever the reason, you need to know the facts and the law surrounding surrogacy.

Surrogacy, what is it?

Surrogacy is an arrangement where a woman becomes pregnant with, and gives birth to, a child for another individual or couple without an intent of having any legal rights to that child after its birth. Surrogacy is lifechanging for those who desperately want a baby but have been unable to use traditional methods.

Surrogacy laws in Australia

There are two different types of surrogacies:

• Traditional surrogate – involving the surrogate providing their own egg.; and
• Gestational surrogacy – where the sperm and egg (genetic material) are provided by the intended parent or a third party.

Surrogacy arrangements have been known to be either altruistic or monetary/commercial.

Altruistic surrogacy does not involve any financial profit or reward. However, usually the surrogate’s medical bills and other costs associated with the pregnancy are paid by the intended parents.

Commercial surrogacy involves the surrogate receiving a financial gain from the intended parents in addition to the other costs associated with the pregnancy.

The Australian laws regulating surrogacy are not uniform across the States, meaning, that they can be quite different.

For instance, currently, the Northern Territory has no regulations at all. Lack of regulation contrary to what one may believe can actually further complicate things. This is because the surrogate and intended parents do not know their rights and obligations.

Regulation is protective, particularly to the birth mother.

For all states and territories excluding the Northern Territory, there are some general uniform Laws that apply:

• Commercial Surrogacy is illegal in Australia.
• A surrogate must be at least 25 years old before being allowed to act as a surrogate. However, in the Australian Capital Territory they must be over 18 years old.
• Generally, a medical need for surrogacy is required. In New South Wales, Tasmania, Queensland and Victoria social reasons are considered such as being in a same sex relationship. The Australian Capital Territory does not have medical or social requirements.
• In the states of Victoria, Tasmania and the Australian Capital Territory, surrogates must have already given birth to a child prior to becoming a surrogate.
• Surrogacy is open to same-sex couples in all States and Territories excluding Western Australia.
• A written surrogacy agreement setting out conditions is required except in Victoria and the Australian Capital Territory.
• Traditional surrogacy is not permitted in the Australian Capital Territory.
• Intended parents cannot advertise or publish on social platforms their intent to find a surrogate. You are not allowed to advertise (whether seeking a surrogate or wishing to be a surrogate) in the Australian Capital Territory, Queensland and Victoria.

Surrogacy laws change from place to place. Intended parents, and those considering becoming a surrogate, should speak to an experienced family lawyer.

Surrogacy options overseas

Overseas surrogacy has had disastrous consequences on surrogates and intended parents.

During the Covid19 travel bans, dozens of babies born through cross border surrogacy were stranded in temporary overseas accommodation. Babies were placed in danger and there was a risk of being sent to orphanages or even being abandoned.

Many intended parents were placed in a dire economic position and unable to assist the surrogate. Surrogates whom had high levels of vulnerability due to poverty were unable to attend medical appointments. The consequences were far reaching.

It would be exceptionally difficult to understand which law applies in the particular country selected and what laws will impact your child upon a return to Australia.

Some countries allow commercial surrogacies.

When considering whether to enter into an overseas surrogacy arrangement it is imperative that you obtain advice from an experienced family lawyer.

You need to know about the laws around international surrogacy in both your State or Territory and in the country where the surrogate mother is located or lives.

Is some States such as the Australian Capital Territory New South Wales and Queensland it is illegal to make a commercial surrogacy arrangement outside of Australia. Parents who do this face serious consequences upon their return.

With minimal provision for regulating surrogacy facilitators in Australia, there are risks of utilising illegal intermediaries. These intermediaries may or may not be participating in the trafficking of children and women. It is a very real human rights issue.

There can also be implications for the citizenship of the child. Citizenship of such children is not an automatic right and certain applications must be made.

It may be necessary to create a complex surrogacy arrangement that incorporates elements about Family Law both in Australia and the Country of the Surrogacy.

Parentage Orders and Surrogacy

The legal complexities of surrogacy do not end there.

Further complexity arises as consideration must be had for Parentage Orders. Parentage Orders are an Order by the Court to amend the Birth Certificate of a child to reflect the intended parents of a surrogacy agreement as to the child’s parents.

Laws on Parentage Orders may be governed by statutory time limitations.

Before embarking on the thought of overseas Surrogacy, we highly encourage you to reach out and have a consultation with us.

Obtaining proper advice from an Experience Family Lawyer will help keep you and your family safe during what should be an amazing new chapter of your life.

South Australian analysis of the law:

Eligibility:

The law in South Australia requires intended parent(s) to have a medical or social need for surrogacy. Surrogacy may be one of the only options available to intended parents. To enter into an agreement, you must be over 25 years old, an Australian Citizen or Permanent resident and have at least one intended parent domiciled in South Australia.

Locating a woman prepared to be your surrogate?

Often family or friends are utilised for surrogacy. If not, finding a surrogate may prove quite difficult. We recommend looking at community groups on social media specific to this issue. This can provide you with some insight from those who may have been through the journey.

In South Australia, you are allowed by law to advertise for your surrogacy but this is contingent upon the surrogacy being altruistic. To be very clear, you cannot advertise a commercial surrogacy.

Is a Surrogacy Agreements Pivotal? Yes!

A Lawful Surrogacy Agreement is essential for those utilising surrogacy in South Australia. Our state has specific pre-conditions to ensure the integrity of ethical and legal considerations.

All parties to a Lawful Surrogacy Agreement in South Australia must have been provided with independent legal advice.

That advice ought to be obtained by an experienced family lawyer to avoid any potential complications with the agreement. A lawyer experienced in surrogacy will be able to explain the legal process and the eligibility criterion to be met under the Surrogacy Act 2019 (SA).

In a bizarre twist, a Lawful Surrogacy Agreement is not enforceable, but it is still none the less required to be in place prior to the conception of the child.

The intended parent(s) are required to make an application in the Youth Court for Parentage Orders after the child’s birth. That process is to transfer parentage from the facilitating the transfer of parentage from the birth parents to the intended parent(s). If the parents neglect to do this, they will likely need to explore alternative legal options to be recognised as the child’s legal parents.

A requirement of Surrogacy Counselling

The intended parents and surrogate must have counselling prior to the finalisation of the Surrogacy Agreement.

The law makes it clear that this counselling service must be accredited to providing provide counselling, consistent with the guidelines published by the Australian and New Zealand Infertility Counsellors Association (ANZICA) and any relevant guidelines published by the National Health and Medical Research Council.

The counselling aspect assesses the suitability of all parties in this process. The goal here is to ensure or reduce the risk that the intended parents and surrogate understand any psychological and social implications associated with the agreement.

Pre-signing counselling is also required to ensure parties interest align with the most paramount consideration, the best interests of the child. The other pivotal role of counselling is to inform the parties and make them prepared for this journey.

Contact us, we can help

If you have any questions about the surrogacy process or are considering surrogacy you can contact Elena Leonardos on 08 8312 6440 or email us on info@alslaw.com.au.

Divorce and separation are challenging life events, even when families manage to agree on a sensible separation plan.

This is because the ending of this stage in your life could elicit feelings of grief, anger, guilt, loneliness, regret, sadness and more.

There is nothing wrong with feeling these emotions, and it is entirely normal to feel this.

Unfortunately, such emotions may cause separating couples to make the wrong decisions.

These decisions can have a lasting negative impact on the lives of the people you love and even your children, friends and family.

It can impact the people you love, both financially and emotionally.

The decision to separate or divorce can change the course of your life.

Even if you and your former partner are ending the relationship on good terms, there are issues to resolve such as – time spending with the children, division of your property and superannuation.

If you proceed with the correct process, you can avoid divorce mistakes that increase stress and waste your time, energy and money.

Safeguarding yourself against mistakes in the process of divorce is critical to an efficient solution. Any decision taken in the heat of the moment or with incomplete information can turn all the major aspects of your life upside down.

If you are considering a divorce in Australia, here are 6 most common divorce mistakes you should avoid:

Mistake 1: Letting Emotions drive the process

It is often difficult to detach yourself emotionally during separation.

This makes it hard to understand what is happening and see your divorce and separation clearly.

Family and friends can be supportive, but your heightened emotions can prevent objective decisions.

Make sure your decisions are rational and try to keep your emotions separate.

There might come a time, like during litigation, when you have to be logical and fully in control, but intense feelings will want to take over.

Ensure that any legal decision you take is thought through with a stable mindset before reaching any conclusion.

Make sure that you have a solid support system in place.

Mistake 2: Unrealistic Expectations about divorce

Separating families should have realistic expectations about what the law can and cannot do for them.

Remember if you are not ready to compromise, the matter will be handled by the court and a Judge or Senior Registrar, will take away your right to make a decision.

They will decide for you. The objective of negotiations should be to reach a common ground that works for both parties.

While you are discussing legal and settlement terms, try to be reasonable and realistic.

Empower yourself with knowledge on your rights, obligations and options.

Mistake 3: Taking advice from random people rather than your lawyer

While you are going through the process of divorce, there will be different friends and relatives who might have gone through the same and would like to help.

They chime in and despite wanting to genuinely help you (or not) the advice is not always good.

Your friends, family, school parents or the like who have gone through a divorce are unlikely to be legally trained.

They will not be able to give you legal advice based on expertise and knowledge.

At best you will likely get a rant or opinion based on their experiences. It is wholly unlikely that they know what is right for you.

So, you should not listen to well meaning opinions of the layperson and look to the paid professionals.

Be practical and sensible, follow the advice of your lawyer.

If you do not think your lawyer is doing the right thing, discuss this with them and see if you can resolve any confusion or issues.

Mistake 4: Being unable to identify, value or separate your property

Another common mistake in divorce and separation is that parties fail to identify their assets and the true value of those assets.

This mistake can cost you tens, if not hundreds of thousands of dollars.

The parties should negotiate and reach an informed decision on how the property will be divided.

The division should be such that both parties’ contributions and future needs are considered.

The property division must comply with the legislative requirements of the act and be fair and reasonable.

If investing in an expert to value property such as a home is necessary, we can direct you to a cost effective expert.

When you try to resolve your dispute without proper knowledge of the value of your assets, what you do is create a larger disparity in the actual division of your assets.

Paying a few hundred dollars to have your home valued is essential for peace of mind.

Mistake 5: Assuming that issues will be resolved with time

You and your former partner are going to play the main role in determining the outcome of your divorce and settlement. People tend to forget this.

Divorce is indeed not a passive process and issues are not going to be resolved with time if you delay them.

Therefore, keep your long-term key interests in mind to make rational decisions.

Remember that delaying the key steps in divorce and separation can further complicate the process and make it more stressful, costly and time consuming.

When parties cannot agree, ask your lawyer for the option of least resistance.

For instance, some negotiations can go on for years without resolution.

You may have spent $10,000 on that process with no result.

A good lawyer knows when to start litigation, when to mediate and when to negotiate.

Where expectations of one party are not realistic, you can chat to your lawyer about options available to you so that there may potentially be a recovery of legal costs.

Mistake 6: Posting personal information online

No matter what relationship you share with your former partner, divorce is an emotionally draining life event.

In this phase of life, it is obvious that you would like to connect with your family and friends and let them know what you are going through.

Keep in mind it is that it is not a good idea to post your thoughts, feelings, and experiences on online platforms.

It also breaches the Act and you could be penalised by the Court.

Resist the urge to post anything about your divorce or separation online, make sure you refrain from using social media until the divorce is finalised.

What now?

Before planning a divorce in Australia, a well-thought-out strategy is a must.

Your first step starts with meeting the right lawyer who will handle the entire process for you.

A good family lawyer will help you understand the law and you’ll refrain from making the mistakes that can complicate your divorce.

If you are looking for an experienced lawyer to help you navigate this next phase, please call us on (08) 8312 6440 or email us at info@alslaw.com.au to make an appointment.

Elena and the team look forward to helping you resolve your matter.

If you or your spouse have assets located outside of Australia, you may be wondering how these assets will be divided in the event of a divorce. The process can be complex, and it is important to seek professional legal advice to ensure that your interests are protected.

Australian courts have jurisdiction to divide overseas assets in certain circumstances.

The first step is to determine whether the overseas asset is ‘matrimonial property’.

Once it has been established that the asset is matrimonial property, the court will then consider what order would be just and equitable in all the circumstances of the case.

A number of factors will be taken into account when making this determination, including but not limited to:

• the financial contribution made by each party towards the acquisition, conservation or improvement of the asset;
• the non-financial contribution made by each party;
• the future needs of each party; and
• the value of any other property owned by either party.

In some cases, it may be possible to reach an agreement with your spouse regarding the division of overseas assets without having to go to court. However, if you are unable to reach an agreement, you may need to commence proceedings in an overseas court.

It is important to seek legal advice from a lawyer who is experienced in dealing with international family law matters before taking any action.

Dividing assets located outside of Australia can be a complex process. If you or your spouse have overseas assets, it is important to seek professional legal advice to ensure that your interests are protected.

To take a step toward protecting what is rightfully yours, email us at info@alslaw.com.au to organise an initial consultation for the fixed fee of $330 inclusive of GST.

When separating from a spouse the property is divided, but does that include contributions from your parents, should your former partner benefit from that gift?

It is not unusual for parents to financially assist their child to give them a head start in life. This may look like a sum of money, land, or even a property! The gift can be an enormous head start to their child.

Often this type of generosity is informal and undocumented. Most parents do not anticipate the breakdown their child’s relationship and do not consider the affect a separation may have on the property gifted to their child.

What happens to a parent’s contribution?

When the relationship breaks down, there must be consideration of how the contribution would be dealt with in a property settlement.

The Court may treat the contribution in two separate ways:

• Firstly, the Court may view the contribution as a loan that is to be repaid to the parents; or
• Alternatively, the Court could consider that the contribution was made by the parents without the expectation of repayment.

It must be noted that the other side will often assert that the contribution is a gift. In doing so, the contribution will form part of the asset pool.

How do you establish the contribution is a loan?

You will need to consider if there were any written or oral terms agreed upon regarding the contribution. It may be a loan agreement if there is record of loan repayments, or if there is security taken for the loan.

The Court may find a contribution to be a loan in circumstances that there is a formal loan document.

However, in circumstances where there is little evidence to establish that the contribution was a loan, and no repayments had been previously made, it will be challenging to satisfy the Court that the contribution was a loan and it will likely be considered as a gift.

We recognise that it can be confusing to determine if a contribution from your parents is a loan or a gift. Please call us to make an appointment, Elena and the team look forward to helping you resolve your dispute.

Separation requires the division of property between the parties.

Why? Because if you do not legally formalise your agreement, you run the risk that one party may change their mind. This can be expensive.

There are two options to settle property matters: a Financial Agreement or Consent Orders. Both documents are a formal agreement regarding the division of your property, but are drafted and enforced in different ways.

Financial Agreements

A Financial Agreement is a private agreement between parties, so it is not subject to the Court’s review. However, Financial Agreements can be more complex and expensive to prepare.

A Financial Agreement includes background information about the relationship, identification of the assets and itemisation of what each party shall retain.

This agreement does not need to satisfy the ‘Just and Equitable’ test, therefore there is risk that the agreement may benefit one party more than the other. As a result, there is a larger risk that the document may be challenged by a party later if they decide to no longer be bound by it.

As there is a risk the Financial Agreement may not be just and equitable for both parties, each must obtain independent legal advice regarding the document. A Solicitor must sign a certificate that they have given the required advice.

Consent Orders

Unlike Financial Agreements, Consent Orders are filed with the Family Court. Consent Orders require two documents, those being an application for consent orders and a minute of order.

Consent orders form a written agreement that identifies both parties, liabilities, superannuation entitlements and contributions that were made to the relationship. The proposed orders will outline the orders you wish the Court to make regarding the division of property between the parties.

The Court must be satisfied that the proposed orders are just and equitable to both parties before they are approved. Once the orders are approved by the Court they are binding on both parties and cannot be amended.

It is important to note that parties must file the application for consent orders within a year of their divorce. This period is 2 years for the separation of de facto couples.

Which approach do I choose?

Both options offer advantages and suffer disadvantages. We recommend that you take a moment to consider the current circumstances and your relationship with your former partner to evaluate the best option for you. It is important that you receive proper advice as to which option is most beneficial to you. It is important to get your strategy in place.

Please call us to make an appointment, Elena and the team look forward to helping you resolve your matter.