When should I contact a Family Lawyer?
The sooner the better! We have people contact even us before they have separated for advice as to what they can do to start protecting assets in case it all goes pearshaped; or just to find out what they need to do. The sooner you get the advice you need, the sooner you can start getting on with what needs to be done to sort out your family law matters. We will discuss your situation with you and give you a checklist of things to think about and attend to in order to streamline the process as much as possible
Do I really need a Family lawyer? Can’t I just do it myself?
You may be tempted not to get legal advice because you think it is expensive or not really necessary. In the same way you wouldn’t think of building a house unless you had the expertise to do so, you run the risk of getting it wrong if you don’t get legal advice. This could be a costly mistake!
You really do need to know whether you are on the right track with what you think you are entitled to and what might be done if you end up before a judge. You need to pick your battles sometimes and not waste time and money arguing about something you are just not going to get. With a property settlement you will need to know the process to working it all out and what you are entitled to. You need to know what legal steps have to be taken, and how to go about it.
Every case is different and just because your mate got a certain outcome doesn’t mean you will. There is also a lot of information out there and just like a medical issue you really shouldn’t self diagnose from Dr Google!! It is worth it, to outlay what is really only a small sum in the scheme of things, to get some good advice to get you started.
Can I save money on my legal fees? How do I cope with fees?
YES! In the lawyer world, our time is your money. Most lawyers charge according to the time they spend in your file. This means, the more time your lawyer spends on your file, the more it costs you.
At Collier Family Law, we know that money is tight and you want the best value for money. This is why we will suggest to you that you can do some of the legwork yourself – as this will reduce your fees.
For example, you can write out your story – you might find it therapeutic! If it is a property matter, you can get together all your financial records and prepare them to give to us. We also have an automated letter of instruction which you fill in, and it gives us the background we need from you to give you advice. You doing this yourself will save at least an hour of time.
As another great time saver I regularly have my clients fill in documents in draft for me to check over; or make their own enquiries where they can – for example, getting three quotes from a valuer. The more you can do, the less I need to, which reduces your fees.
Remember also – your Cairns family lawyers MUST give you a proper estimate of fees at the start of your engagement with them, and keep giving you further estimates throughout the life of your file. If this isn’t covered with you at the first appointment, ask why.
Is a consent order an easy process?
Yes it really is quite a simple process. The hard part is usually reaching the agreement in the first place! But once you’ve done that, filling in an application for consent orders is reasonably straightforward. There are two places where the ‘do it yourself’ person comes unstuck. Firstly there are a couple of sections in the form that are not as straightforward as other parts of the form and might require some legal advice. The second is that the application for consent orders must be accompanied by minutes of order where you set out the orders you want the court to make. This is the part that does require some legal expertise in order to make sure the orders are worded correctly and you don’t miss things out.
How do I work out a fair property division?
Well this is the million dollar question! There isn’t really a formula as such, it is more a set of principles that lawyers apply when giving advice. These principles come from the family law act and from caselaw. There is a five step process. The first step is to look at what you each currently have and decide whether any further adjustment of property is necessary. If so, the next step is to identify and value your assets and liabilities. The next step is to work out what contributions you each made towards the property (financial, non-financial, direct and indirect). At this step, we talk about a percentage, for example 50% to each spouse. That isn’t the end of it however, the next step is to look at each person’s future needs and applying family law principles and sections of the act, decide whether the percentage that was reached in the contribution stage needs to be adjusted up or down. The final stage is to work out what property you will actually receive, in order to achieve the percentage that is a fair outcome for you both.
How do I value my property?
Firstly – it’s current values not what it was worth at separation. For “Real” property (houses etc) get a real estate agent to give you an appraisal. It will do to start with and it’s free. For cars, bikes etc go to www.redbook.com.au; or carsales.com.au; for boats, caravans etc, look online at similar sales – or take these items to a dealer locally.
Bank accounts are easy, you just need a printout of all bank accounts.
Furniture, tools, jewellery etc – it’s a second hand value not replacement/insured value and don’t get too excited about it, it’s often worth much less than you think! Try and come up with a global value; again by looking on Gumtree, experts in TradingMate.com.au or Marketplace for an idea.
For superannuation, take in the most recent statement but also see if you can get a current balance.
Valuing a company and/or business is a bit more involved and may require a formal valuation.
What if I want to leave town with the kids?
In Cairns Family Law terms this is called a relocation. If you have court orders in place that provide for the children to live with or spend time with the other parent, you would not be able to re-locate if by doing so, those orders were not able to be carried out any longer.
You have to apply to the court for orders a variation of the court orders if the other person didn’t agree to let you relocate with children.
If there are no court orders in place then of course relocating without the other person’s consent is not a breach of court orders but you run a real risk of the court ordering the children to be returned back to the place where they were taken from, if they were taken without the other person’s consent. The starting point is always mediation to see if you can resolve whether the relocation can be agreed. If not then unfortunately you really must seek the approval of the court before relocating.
What time should kids spend with each parent?
The Family Law Act says that when a court is looking at parenting orders, and when parents are negotiating them, the starting point is a “shared care” arrangement. However, the shared care arrangement must be in the best interest of children and be ‘reasonably practicable’ which means, able to be carried out. Whether or not a shared care arrangement is in a child’s best interest depends on many factors. Age of the children is relevant; as is whether there has been any family violence; and whether there are other concerns. The general rule of thumb is that a shared care arrangement doesn’t work well for children under school age and it certainly doesn’t work well for any children when there is a great deal of tension between the parents.
How do I get a divorce? How do I cope?
You make an application to the court. The application for divorce is a fairly straightforward form that can be downloaded from the Internet and filled in by people without necessarily needing family lawyers to do it for you. You do need to be aware that you must be separated for at least 12 months before you can file your application. You can be separated but still living under the one roof however, you will need to file an affidavit setting out all the things that Court needs to know to be satisfied that you are in fact separated. There are some tips and tricks in relation to filling in an application for divorce correctly, and serving it. It is always worth getting some legal advice about the process.
What is equal shared parental responsibility?
The first thing is what it is not. It is not shared care. Equal shared parental responsibility is the concept that parents will consult with each other about major long-term issues to do with the children. A major long-term issue is things like a child’s religion, education, medical things that are important, not just a day today trip to the doctor. It also includes changing the child’s name, and changing where the child lives such as to substantially affect the other person’s ability to spend time with the child.
How do I get a passport for a child with the other person won’t sign?
If you have a court order that provides that you have sole parental responsibility of the child you should be able to get the passport without the other person’s signature. You can also apply to the passports office on the grounds that you are unable to get the other person’s signature because of an accepted reason such as, you are unable to find the person or there is family violence. If all this fails, you will need to make an application to the court for the passport to issue without the other person’s consent.
How do I change my child’s name without the other parent’s agreement?
Even if you have sole parental responsibility under a court order, the Department of Births Deaths and Marriages will require the other parent’s signature. Without that, the only thing you can do is make an application to the court. The court will look at things like the age and wishes of the child; how the change of name will affect the child; what relationship the child has with each parent and in particular, whether changing the child’s name will affect the relationship the child has with the parent whose name they would be forgoing.