Wait times associated with having a case before a judge
Tuesday, 27 June 2017
Luke /CP – Catherine Parks /C1,2,3, etc – Callers
Luke Yes with the 2016 census data release today, it’s clear that less and less Australians are getting married. In fact 35% of Australian adults have never been married. 35% of Australian adults! Instead, many of us are choosing to remain in de-facto relationships according to the data. Now this questions raises a number of legal issues about you know the family law act, what it covers, what de-facto partners mean, what each of them are entitled to if they were to split and we’ll do that today in our family law segment, but if you’ve got a family law question whether it’s about de facto couples or anything related to family law give us a call right now 131871. I’ve got a $100 voucher to give to one of our callers, so someone will take away a $100 Westfield voucher. And as you might know, Turner Freeman Lawyers specialise in legal services, compensation and negligence law, asbestos litigation, superannuation and disability claims, family and employment law, wills and estates and property law. Their NSW offices are in CBD of Sydney, Parramatta, Campbelltown, Penrith, Newcastle, the Gong. Queensland offices, Brisbane, Logan, North Lakes, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and also Cairns. Catherine Parks is an accredited specialist in Family Law based at the Turner Freeman Parramatta office, but also sees clients all around the joint; she’s on the line right now, Catherine good afternoon to you.
CP Hi, how are you?
Luke I’m very well, you’ve been busy in court this morning I hear
CP Have been busy, thank you for – um putting me on the phone.
Luke That’s okay. In the family law at the moment, what is some of the wait times associated with having a case before a judge?
CP Look, unfortunately in property matters, we’re advising somewhere between 2 and 3 years from beginning to end.
CP Look, that’s if a matter goes to trial, majority of matters are negotiated and we come up with good settlements but yea I mean the waits are significant
Luke That’s double the time for a criminal trial
CP Yea yea its exceptional, and its more dramatic you can imagine when children are involved um and either party are not happy with the care arrangements of the child, there’s significant desperation for people involved in that situation
Luke Yea, you’re in this limbo period of dispute for so long. Noel’s got a question for you Catherine, go ahead Noel
C1 Yea just like to know how to get custody order changed please.
CP oh, look it’s a really- unfortunately once court order are made in relation to care arrangements for children, whether that’s by agreement or whether it’s by court order you have to be able to show the court that there has been a significant change in relevant circumstances. So you can imagine that courts don’t want care arrangements changed for children often um so you need to be able to show that something really dramatic has changed, not just the child’s got older but that there’s been umm perhaps a new partner in mum’s house who’s not suitable or the children are now of a significant age and they’re expressing very strong wishes or one party’s moved away. It’s really a difficult thing to do.
C1 No worries. How do you- do you go to the courts?
CP Yea you’re obliged to mediate before you go to the courts in relation to any parenting matters so you need to try and contact someone like um perhaps Relationships Australia, UNIFAM, there are family relationship centres um they then will contact the mother of your children and try and arrange a mediation it’s really important because of the delays we were just speaking about because of the costs that you try and mediate first and actually the court won’t hear anything to do with children unless there are very urgent circumstances unless you’ve tried to mediate.
Luke Alright Noel, good luck
C1 Yep, no worries, thank you
Luke Thank you, now back to de facto partners, do they have the same rights are married couples during a relationship and afterwards?
CP They do and since 2009 there have been amendments which have meant that um de facto relationships where it comes to property division or care of children are all dealt with under the federal circuit court or the family court just like married people. I suppose one of the difficulties that people are coming into is when are you in a de facto relationship um there is a theory that uh you have to hit two years living together uh that’s not always the case. If you’ve got a child the courts not so worried about the two years. There’s also looking at intermingling of finances and um uh there is some discretion so you need to tread very carefully when you are intermingling finances and you’re becoming financially dependent upon people um as to whether you’re now in a de facto relationship and what might be the implications if you separate.
Luke Okay so the implications when you separate as a married couple uh there are a lot of considerations to work out but the same would occur in a de facto partnership certainly after the 2-year period had expired.
CP That’s right, yes, very much the same, so they’re slightly different sections of the act but they say largely the same thing. So in relation to property you’re looking at what are the assets that need to be divided, who made what contributions during the relationship and what are the future needs of each of the parties exactly the same as married – um couples.
Luke Okay, 131 873 the telephone number, I’ve got that $100 Westfield voucher to give away. Now in terms of children – um how – there are obvious legal problems in terms of custody but that can be sorted out in the same way a separated married couple could sort it out in terms of orders of the court?
CP Absolutely, and again de facto couples um you know for the reasons that’s its best not to be in courts for kinds of reasons including the delays but also the antagonism the costs and alike. There is an obligation on de facto couples also to try and employ any form of mediation that they can get their hands on and to really engage in that in a bona fide way.
Luke Have you discovered that the quickest most convivial way to resolve these issues is to have a round table discussion between both parties and their legal representatives for half a day or something?
CP I have yes, and there’s a lot of mediators um around now mediation is growing in popularity as people sort of work out that going to court, if you can avoid it is a horrible way to work out how your children should be looked after because you’re in the best position to work that out yourselves um but a lot of mediators talk about um talk to the parents about look um the benefits to children of the two of you being able to communicate on some level. Obviously differently to how you communicated during the relationship but on some level will benefit everybody involved but particularly the children they can see mum and dad at parent teacher nights because you haven’t gone through a horrible trial um they can see mum and dad go watch the footy on the weekend and that’s a really positive thing for children.
Luke Okay Catherine, stay right there we’ll come back to you, some more callers coming through and we’ll get to Catherine Parks from Turner Freeman right after this. Eight to two, legal matter with Turner Freeman’s Catherine Parks, Peter you’ve got a question on family law, go right ahead.
C2 I just got a couple of things, just now, if you and your wife separated for a small time and you’re going to divorce, but before you divorce if one party said to the other party through their lawyers sign this letter and the letter states in there in my account is my money and what’s in your account is your money. How legal is it, or is it not legal?
CP Um Peter, if it was just a letter that set out that was what you were intending to do in the future, then if you ran any litigation later down the track that might be considered a statement of your intention. The court might have a look at that and say well look these parties both had legal advice, they signed off on a letter and that was their state of mind as at that time. They might put some weight on that, they might’ve said look both of you acted in a way that separated your funds and kept everything divided, um and the court might say well on that basis nobody should have, everyone should just walk away with what they had in their own name. It’s not a legally binding document though, it doesn’t mean that a court can’t look behind that document and see what they think might be fair and make adjustments. So it’s not going to be binding but it is going to be something that perhaps the court would look at and say look that’s where their minds were at, at that particular time.
Luke Okay, good on you Peter, thank you very much for your call, good luck with all of that. I want to go to Sandra now if I may. Sandra, Catherine is listening, go ahead.
C3 Oh yeah hi Catherine, look, thanks for taking my call, look I think I’m on the time clock uhh my husband and I split up last year. We’d been married for 30 years, uhh we went through solicitors and everything you know, now he’s actually living overseas, but apparently my solicitor, although we’re not divorced, my solicitor has told me, that he, whilst we’re still married, he can still make, obviously in the event in which I pop my clogs, he can still make a claim on my estate. Apparently there’s a clause 10 or 11, and she if you want it set in concrete, you’d have to go to the Supreme Court.
Luke You’re not planning to pop your clogs are you Sandra?
CP Look, it is possible to make a claim, once however, you’ve got court orders. Is that what’s happened? Your property’s been divided and you’ve got court orders that affect that decision?
C3 Just went through you know obviously all the legal papers, everything signed obviously, I had to sort of pay him part of my estate which was actually left to me by my parents, so I had to say give him $250000
CP Sure, but you signed off on document
C3 But we’ve all signed off and obviously in the documents it’s there, sort of you know, he can make no claim but apparently it still needs –
CP It needs to bee – It’s a deed of succession, and you sign that off and say I won’t make any claim on your property, you won’t make any claim on my property um and formally that should be um signed and filed in the Supreme Court, my understanding is that it’s quite an expensive thing to do
Luke But if it’s done its watertight
CP If it’s done its watertight, but then again if you’ve signed it and a solicitor’s witnessed it and even if it’s not signed in the supreme court, it’s a statement of intention, and one of the things that you’re talking about Family Provision Act, your will says X and he says no no I need some money from your will.
Luke Alright Catherine, I’m going to leave it there. I’ve run out of time completely. Sandra you got the $100 Westfield voucher. Catherine Parks thank you for your time.