Archive for the ‘Family Law’ Category

Social Media and Defamation Tweeters and Posters Beware!

Anyone who uses social media has almost certainly come across a post or tweet where your immediate reaction was to suck in your breath and go “Ouch” while simultaneously being glad you weren’t the one on the end of the tirade.

Perhaps you have been guilty of firing off such a post or tweet yourself when someone or something has upset you. Maybe about the tradie who didn’t show up on time or the restaurant you went to last night where the waiter was the worst you have ever encountered.

It’s your democratic right to sound off and practically your duty to let everyone know to avoid spending their hard earned cash in that place isn’t it? Maybe it is but you really need to be careful that by posting or tweeting you aren’t defaming someone because if you are that spur of the moment rant could cost you plenty.

Of course social media isn’t the only place people may be defamed but it is fast becoming a growing area for these sorts of claims and disputes to arise.

 What do we mean by defamation?

You may have defamed someone (and be held liable for damages) if you have made a statement that could be seen as lowering a person’s reputation in the eyes of community, could lead to that person being made fun of, avoided or despised or could in some way lead to a loss of reputation in the person’s profession, business or trade.

 Could this cost me money?

While the simple act of defaming someone may not automatically lead to a Court finding you liable to pay damages (money) and there may be defences available to you, just being accused of defamation can lead to you becoming involved in costly and time consuming legal proceedings.

While you may have a defence such as being able to prove the statement was true or that it was an honest opinion on a matter of public rather than private interest, the best strategy is not to make statements that could lead to a complaint in the first place.

 But I was only posting on my private Facebook page….

Defamation can include publishing an article or newsletter, posting on a website or even writing an email. With the use of social media and email being so widespread comments and posts people make have the potential to “go viral” almost immediately and what may have started off as perhaps a private chat between two people can quickly spread to a far wider audience than was ever intended sometimes with far reaching consequences.

Who can be defamed and who is liable?

While you can’t defame a dead person and legislation may, depending on where you live, exclude or limit a company from suing for defamation, it is important to remember that each person who participates in the defamation may be found liable for it. So if you receive an email that is defamatory about the local plumber who failed to turn up or the crazy parent from your child’s school and decide to spread the word to all and sundry you could find yourself in as much hot water as the person who wrote the email in the first place.

A cautionary tale

Take the case of Mr Palmer who decided that he needed to warn his fellow residents about Mr Mohareb, one of his neighbours on Scotland Island (a small coastal community near Sydney). Mr Palmer posted on the Scotland Island Community Facebook page a “Warning” about Mr Mohareb that included describing him  as a “highly volatile individual, prone to manic outbursts” and which stated that he was “often abusive and threatening – particularly towards women and children and warned residents to avoid approaching or confronting him”.

Not surprisingly Mr Mohareb took offence at these comments and subsequently the matter proceeded to litigation in the District Court of NSW with significant costs being incurred by both parties.

How can I avoid being sued for defamation?

A good rule of thumb is to think long and hard before your post or publish. Remember once you post or press send it is out there on the internet forever.

Some other techniques to avoid defaming someone include:

  • Follow the golden rule of “If you can’t say something nice don’t say anything at all”;
  • Always check that any statements you make are actually true. Don’t just repeat what someone else told you without checking that what they said is actually true;
  • When communicating focus on the issue and try not to make personal comments or sweeping statements;
  • Never make derogatory comments about a person’s race or religion;
  • Try to avoid emotive language;
  • Avoid identifying someone even unintentionally if what you are saying could lower the person’s reputation; and
  • If in any doubt don’t say, write, tweet or post before checking with a lawyer first.

Help! I think I may have already defamed someone

An apology, especially a public apology, can often go a long way to limiting the damage done. If you are in any way concerned that you may have defamed someone or have been accused of doing so then it is better to seek legal advice sooner rather than later.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

What to do after a family separation and pending divorce

Do you have a friend or relative who has just separated?  If so, the information below should help.

 What is meant by separation?

Separation in Family Law is defined as the bringing to an end of a marriage or de facto relationship (which also includes same sex couples). There is no need or ability to register a separation under Australian Family Law. Separation is a fact which must be proven if it is disputed by the other party at a later time.

In the case of a divorce, the date of separation is recorded on the Application for Divorce and is sworn or affirmed to be true and correct by the Applicant. If you cannot prove you had separated from your spouse at least 12 months before you file your Application for Divorce, the Court will not grant your divorce.

Therefore, it is a good idea to confirm the separation in writing, even if this is via text message that can be saved, at or shortly after the time of separation. Often divorce cases and cases for property settlement in de facto relationships can turn upon whether or not a party can prove that separation occurred on a particular date.

 What about de facto relationships?

In the case of a de facto relationship, particularly where the relationship ends on or about the two year anniversary, whether or not a property settlement is available can depend on whether the separation took place before or after the two year anniversary. If the de facto relationship was less than two years long the Court may have no jurisdiction under the Family Court Act to provide a property settlement. There may be alternate remedies available or another basis other than the two year requirement to show that a de facto relationship existed.

In addition, there is also a two year limitation period in which to commence the Application, from the time of separation. In such cases, again, the date of separation can be significant.

 What about if you still live together?

Separation can take place even though the parties live under the one roof and it can also be a gradual process. In these cases, the Court will need to examine a number of factors to determine when and if a separation has taken place.

Those factors can include whether the parties:

  • Slept in separate rooms or together after the alleged date of separation;
  • Performed domestic duties such as cooking and washing for each other after the alleged date of separation;
  • Separated their financial affairs to any extent after the date of separation;
  • Lodged or signed any documents informing government agencies of the separation, such as Applications for Centrelink or ATO documents as a single person, as opposed to a person in a relationship;
  • Continued to be intimate after the date of alleged separation; and
  • Made it publicly known (such as by telling friends and family), that they had separated.

Ten things to consider if a person has just separated:

  •  Contact your bank or financial institution in writing (by fax or email- with your signature appearing) to stop joint funds being removed or liabilities increased.
  • If you have a Power of Attorney, ensure it is revoked, and have a new one drafted.
  • Consider whether your nominated death beneficiary for your superannuation entitlements is appropriate.
  • Photocopy all of your and your ex’s financial documents and put them in a secure location (this should not be your home or motor vehicle).
  • Look at your Will and consider if it is still what is appropriate and if you do not have a Will have one drafted.
  • If you have children, contact the Child Support Agency and find out how much is to be paid or is payable.
  • Do title searches on your properties. If your home is not in your name or is in joint names ensure you place caveats over the properties. If your property is held as a joint tenant, ensure you sever the joint tenancy.
  • If there has been family violence in the relationship you may need to seek a Restraining Order.
  • Start a diary which keeps track of time your partner has with the children and any adverse behaviour he/she displays.
  • Seek advice from an experienced Family Lawyer.

If you need more information, or if someone you know needs help, get them to call us to speak to one of our solicitors on a no obligation basis on (07) 3281 6644 or email mail@powerlegal.com.au.

Protection from Domestic Violence

Protection from Domestic Violence

There has been an upswing in media reportage of domestic violence. With domestic violence campaigner Rosie Batty as the 2015 Australian of the year, domestic violence has never been so topical or newsworthy.

The media seems to mostly shine its light on the physical side of domestic violence – the murders, the beatings, the actions that physical scars and bruising. This physical violence, while tragic, is not the only type of domestic violence experienced by Australians.

Statistics

A snapshot of domestic violence in Australia from the Domestic Violence Prevention Centre provides the following statistics:

  • Just under half a million women reported that they experienced physical or sexual violence in the last 12 months.
  • 8% of these women said the perpetrator was a current or ex-partner.
  • 4% said that the perpetrator was a male family member or friend.
  • 7% of men who had experienced physical or sexual violence in the last 12 months had had the violence perpetrated by other men.

What constitutes domestic violence?

The Australian Parliament has defined the following as being examples of domestic violence:

  • Emotional abuse, including attacks on the victim’s self-esteem, undermining, and unjust blaming of the victim for all the problems that are experienced in the relationship;
  • Verbal abuse, including swearing and yelling in public and private;
  • Social abuse, such as isolating the victim from friends, family and the community;
  • Economic abuse, including not allowing the victim to make or keep their own money, leaving them reliant on the abuser;
  • Psychological abuse, such as making threats about the safety of children, dangerous driving, terrorising in order to scare the victim and keep them compliant;
  • Spiritual abuse, which can involve denying the victim access to their own religion or using religious beliefs as an excuse to abuse the victim;
  • Physical abuse, including food and sleep deprivation, using physical violence, locking the victim out of the house or hurting child victim/s to control the adult victim; and
  • Sexual abuse, including rape, coercing the victim into unwanted sexual activity, degrading the victim sexually, not using protection to prevent STD transmission or pregnancy or even forcing the victim to have sex with other people outside of the relationship.

Why don’t these victims just leave? They don’t have to put up with this!

Domestic violence is a very complex issue, and there are rarely ‘textbook’ cases. Some abusers are members of the victims birth family, and have been abusing them for their whole lives, isolating them and keeping them away from functional family members who might recognise that there is a problem. Some abusers use the victim’s children as living hostages to ensure that their parent won’t risk harm coming to them. Some victims have no money, no access to transport and do not speak English. They may have been told that the world outside their walls is more dangerous than the world within. Some victims have a disability that makes it hard for them to communicate. Some victims live in remote areas and no one knows they are there at all.

The most compelling reason that victims of domestic violence don’t leave is that they do not see how they can.

Domestic Violence in Australia

According to the Australian Bureau of Statistics, 1 in 5 women and 1 in 20 men have experienced violence at the hands of an intimate partner.

Domestic violence is prevalent in Australian society, with hundreds of thousands of families affected. Domestic violence incudes a wide range of abusive behaviour and can be found across a wide range of Australian society.

What should you do?

In a family law matter, the Court can make orders restraining one or both parties from engaging in certain conduct. A restraining order is usually intended to protect people or property, or it might be to force one person to vacate the parties’ former home.

The Court takes the issue of family violence very seriously and that is often a factor in making a restraining order. The Court also takes the breach of restraining orders seriously, and it has the power to impose a range of significant penalties.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Social media and family law – Just don’t do it!

Social media and family law – Just don’t do it!

Social media – Facebook, Instagram, Twitter, Snapchat and the like – can be a lot of fun and have become an accepted part of modern life.  Many of us use such forms of electronic communication to share the exciting, as well as the banal events in our lives, to express our views and to stay in touch with loved ones.  But what happens when people going through a relationship breakdown take to social media?  Usually little good comes of it, and sometimes quite a lot of bad can result.

Social media as evidence

If you are going through a separation, you should expect your former partner, their lawyer or the children’s lawyer to search social media to see if they can find out anything damaging about you that could be used as evidence. For example, if you are involved in a financial dispute and might be claiming that you cannot afford to pay spouse maintenance or increased child support, it would probably not be a good idea to share on Instagram photos of your latest holiday or new car.

Similarly, when involved in a parenting dispute, you would be wise not to post to Facebook about your latest “big night out”, especially if the children were in your care at that time.

When making a decision about where children are to live and with whom they are to spend time, the Court can take into account the ability of the parents to communicate and cooperate with one another.  So, it is not likely to be helpful if the Court is shown evidence of abusive or derogatory posts you have made on social media about your former partner.

Of course, many people have social media privacy settings which limit the information that can be seen by non-“friends”. If you haven’t set your social media privacy in that way, you would be wise to do that while you’re sorting out the issues arising from your relationship breakdown. However, even with tight privacy settings, it’s still better to be very careful about what you post, or just don’t do it at all.

Social media and prosecution

The law prohibits the publication, including by electronic means, of information relating to family law proceedings which identifies the parties involved, people associated with those parties or any witnesses. Anyone who breaches that rule is guilty of an offence, the maximum penalty for which is 12 months imprisonment.

That prohibition has not prevented some people involved in family law proceedings from using social media as a weapon against their former partner, by carrying out a campaign of cyber-bullying against their former partner, his or her lawyers, the children’s lawyers and the judicial officers involved in the case.

In two recent cases involving such unlawful social media publication, the Court focused primarily on two things.

Firstly, the Court invoked its child protection jurisdiction and concerned itself with the harm that might befall the children if, as a result of social media publication of information relating to family law proceedings, members of the public could identify the children involved, such that the children might then be exposed to ridicule, curiosity or notoriety.

Secondly, the Court considers it in the public interest to preserve public perception of the integrity and impartiality of the Courts and judicial system, which some litigants have used social media to attack.

In both cases, the Judges commented on the difference between unlawful publication of information about family law proceedings in a one off newspaper article, for example, and publication on the internet, which is and remains available for quick and easy access by anyone, anywhere, at any time.

In one of those cases the offending parent was ordered to remove all references to the parties and the proceedings from the website he or his family had set up to cyber-bully the mother and to expose the lawyers and judges involved in the case as “corrupt”. In addition, the Court ordered the Federal Police to investigate whether the father had committed an indictable offence.

Similar orders were made in the other case in which the offending party, again the father, had used Facebook to denigrate the mother and her lawyers, the Court, the Department of Community Services and the children’s lawyer.

Can social media be good?

The cases referred to above involved ongoing bitterness and acrimony between the separated couple. Happily, that isn’t always the case, and some separating parents can respectfully communicate and cooperate with each other for the benefit of their children. In such a situation, tech savvy parents may find a way to use electronic communication or social media to their mutual advantage, for example privately sharing necessary information about the children and their activities.

Conclusion

Unless you and your former partner can find a way to privately use electronic communication to help you co-parent your children after separation, the general guideline when it comes to social media and family law disputes is just don’t do it.

Not only would you not want to find your Facebook posts being used as evidence against you in court proceedings, you could even expose yourself to prosecution by the Federal Police for breaching the law against publication of information relating to family law proceedings.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Domestic Violence

A Domestic Violence Order may be obtained if the Aggrieved spouse is able to convince a court that: –

  • There has been a history of domestic violence;
  • It is likely that an act of domestic violence will be repeated in the future.

Domestic violence includes an intentional assault, a threat to assault, intentional damage to property and intimidation/harassment and indecent behaviour against the other party.

In addition, the aggrieved spouse and the respondent spouse must be in a domestic relationship; usually they are husband and wife or de facto partners.

The court can make a Temporary Order which will remain in force until the next court date.

Usually, a party who says that an act of domestic violence has taken place will go to the police station or to the courthouse and either the police will make an Application on behalf of that spouse or the spouse will need to make the Application themselves.

This involves filling in a form and filing it with the court.

The police generally serve the Application for a Domestic Violence Order.

Domestic Violence Orders may be made on the standard conditions, ie that the Respondent spouse be of good behaviour and not commit any further acts of domestic violence.

There can be other Orders made such as that the Respondent spouse not approach within a certain distance or that the Respondent spouse will not contact the Aggrieved spouse or other named parties including relatives/associates/children.

Common Orders include not to come to a home or workplace.

If you have any questions or would like to speak with one of our solicitors, please contact us.

Parenting matters

The Family Law Act now provides for a presumption of equal shared parental responsibility.

Unless a court makes a different Order, then the parents of a child have equal shared parental responsibility.

Parental responsibility refers to the long term decision making responsibly that parents have in relation to a child. In general, long term decisions relate to children and: –

  • Their health (apart from emergency health issues);
  • Their name;
  • Their religious upbringing;
  • Their education;
  • Their cultural upbringing;
  • Changes to their living arrangements which would make it more difficult for a parent to spend time with a child.

The presumption of equal shared parental responsibility can be rebutted if the court accepts evidence that a parent has been abusive or violent or that it is not otherwise in the best interests of a child that that presumption is applied.

Parents now have a positive onus to consult with each other in relation to major long term issues and to make a genuine attempt to come to a joint decision about those issues.

The practical effect of the court making that presumption of equal shared parental responsibility is that a court must then consider making an Order in relation to the children which sees the children spending equal time with both parents or significant and substantial time with both parents.

Significant and substantial time means at least time: –

  • On school days;
  • On weekends;
  • On holidays.

In general it means time which would allow a parent to be involved in a child’s daily life and also on special occasions.

We can help you if you wish to make an application to the court for an order in relation to children.

Parties must endeavour to reach agreement by attending mediation prior to commencing proceedings, save in certain extraordinary circumstances.

Parenting plans

Parents can make informal arrangements, ie not Orders, for their children by entering into a parenting plan.

A parenting plan is a document which is signed and dated by the parents of the child.

A parenting plan can deal with: –

  • Where a child lives/with whom a child lives;
  • The time which a child spends with parents and significant others;
  • The allocation of parental responsibility;
  • How parents will make decisions about their children;
  • How disputes will be resolved;
  • How arrangements for children spending time and travelling can be changed;
  • Financial support.

We can help you if you wish to enter into a parenting plan.

We can refer you to child counsellors, family dispute resolution centres and mediators.

The overriding considerations in relation to parenting plans continue to be what is in the best interests of the children.

Parenting plans may vary or end existing Court Orders if these pre-date the parenting plan.

Applying to Court

Both parents have equal shared parental responsibility for the care and welfare of the children unless there is an Order in place which provides something different.

If the parents cannot agree where the children should live after a separation, then the court has power to make a parenting Order.

Parenting Orders can be agreed between the parties at any time until a Judge makes a decision and even after that time.

Parenting Orders can deal with many matters effecting children including: –

  • The person with whom the children are to live;
  • The time which children are to spend with other parties/people;
  • Parental responsibility;
  • How parents will make decisions about children;
  • Communication by children with other parties;
  • How disputes can be resolved;
  • Anything else which is necessary in a case about children including, eg medical treatment, religious upbringing, which school should be attended by children.

If you wish to obtain advice about arrangements for children after separation or If you have any questions and would like to speak with one of our solicitors, please contact us.

The court may make parenting Orders which include: –

  • With whom a child lives with;
  • With whom a child spends time with;
  • With whom a child communicates with.

The paramount consideration is the best interests of the children.

The Family Law Act sets out various factors which must be taken into account and these include: –

  • Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent possible provided that is in the best interests of the child;
  • Protecting the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;
  • Ensuring children receive adequate and proper parenting to help them achieve their full potential;
  • Ensuring that parents fulfil their duties and meet their obligations regarding the care, welfare and development of their children;
  • Children have the right to know and be cared for by both their parents regardless of whether or not their parents are married, separated, have lived together or not;
  • Children have a right to spend time with and communicate with their parents and other people significant to their care, such as grandparents;
  • Parents jointly share duties and responsibilities about the care, welfare and development of their children;
  • Parents should agree about the future parenting of their children;
  • Children have a right to enjoy their culture and to share that culture with other people who enjoy that culture.

These factors help the court decide what is in the best interests of the child.

Primary consideration

The benefit to the child of having a meaningful relationship with both of their parents.

The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

Additional considerations

  • Any views expressed by the child (subject to the child’s maturity or understanding) that the court thinks are relevant.
  • The nature of the relationship of the child with their parents and any other significant persons.
  • The willingness and ability of the parents to facilitate and encourage a close and meaningful relationship between the child and the other parent.
  • The likely effect of any changes in the child’s circumstance including a separation from a parent or other person with whom the child has been living.
  • The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially effect the child’s right to maintain relations and contact with the child’s parent on a regular basis.
  • The capacity of each of the child’s parents and any other significant person to provide for the needs of the child including the emotional and intellectual needs of the child.
  • The maturity, sex, lifestyle and background of the child and of either parent and the characteristics of the child that the court thinks are relevant.
  • If the child is an Aboriginal or Torres Strait Islander child then cultural considerations will be taken into account.
  • The extent to which each of the child’s parents have fulfilled or failed to fulfil his or her responsibilities as a parent and in particular the extent to which each parent has taken or failed to take the opportunity: –
    • To participate in making decisions about major long term issues, spent time with the child and communicated with the child;
    • Has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to the child, spending time with the child and communicating with the child;
    • Has fulfilled or failed to fulfil the parent’s obligation to maintain the child (paid child support);
    • Events that have happened and circumstances that have existed since separation.

The court must consider whether an Order providing that children spend equal time with both parents or significant and substantial time with both parents is reasonably practicable. In making a decision about whether an order is reasonably practicable, the court must consider: –

  • How far apart the parents live from each other;
  • The parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parties;
  • The parents’ current and future capacity to communicate with each other and resolve difficulties that may arise in implementing such an arrangement;
  • The impact that such an arrangement would have on the child;
  • The particular circumstances of the case.

The court has a wide discretion. The court must make the order which is in the best interests of the child.

If there is an order in place and a parent wishes to make a change, then the parties can agree to change the Order.

If you have any questions or would like to speak with one of our solicitors, please contact us.

Property Settlement

The court, when considering a property settlement for parties who are married/divorce or couples who have been in a de facto relationship of two or more years duration or who have made significant financial contributions to each other if their relationship was of shorter duration, provided the de facto couple separated on or after 1 March 2009, adopts a four step process: –

  • It identifies and values the property of the parties;
  • It considers the past contributions of the parties both financial and non-financial which caused the property pool which exists to have come into being;
  • Relevant Section 75(2) factors;
  • How to divide the property pool in a manner which is fair to both parties.

Recording of agreements

If the parties reach agreement and thus do not need to go to trial, there are two ways of recording such agreement: –

  • Consent Orders;
  • Financial Agreement/Part VIIIAB Financial Agreement.

If the agreement is to be recorded by way of Consent Orders then: –

  • A document called Terms of Settlement is prepared and signed by the parties;
  • An Application for Consent Orders is completed and signed by the parties;
  • The marriage certificate, Terms of Settlement and Application for Consent Orders are lodged in the Family Court of Australia;
  • The Terms of Settlement are considered by a Registrar and are usually sealed (or requisitioned) within a few weeks of being filed.

The Orders made by consent have the same weight and effect as Orders which are made by a Judge.The Consent Orders can deal with all matters in dispute: –

  • Property settlement;
  • Spousal maintenance;
  • Parenting Orders;
  • Child support departure Order;
  • Injunctions.

Financial Agreements/Part VIIAB Financial Agreements

These are also discussed on the website under the heading “Pre-Nuptial and Cohabitation Agreements”. Binding Financial Agreements may also record property settlement and spousal maintenance. They are not commonly used to record agreements in relation to children or child support. Sometimes agreements are recorded both in Consent Orders and in a Binding Financial Agreement. If that is the case, often the Binding Financial Agreement records an agreement in relation to spousal maintenance. A Financial Agreement is a complex document which ideally should be prepared by a solicitor. Independent advice must be given to each of the parties separately. There is a complex procedure to be followed to ensure that such an agreement is binding on the parties.

Property settlement with the court’s assistance

If the parties cannot agree on property settlement, spousal maintenance or a child support departure order then these matters would need to go to court and be decided by the court. A contested property settlement generally follows these steps: –

  • First the parties will attempt to negotiate a settlement either face to face or via correspondence or phone calls;
  • If that does not work then parties may consult solicitors to negotiate on their behalf or they may go to a mediation;
  • If the parties are unable to settle matters after negotiation/mediation, then they need to commence proceedings. Proceedings are commenced in the Federal Magistrates Court by filing an Application, Financial Statement and Affidavit in support. The great bulk of Applications (about 80%) are filed in the Federal Magistrates Court. Only complex property applications proceed in the Family Court. In the Family Court the documents lodged are an Application and Financial Statement;
  • The first court event in the Federal Magistrates Court is a directions hearing where the court will want to know what has stopped the parties from settling. Examples might be: –
    • They cannot agree on what assets are in the asset pool or how much they are worth. The assets may need to be identified. Valuations may need to be obtained;
    • They cannot agree on past contributions;
    • They cannot agree on relevant Section 75(2) matters;
    • They cannot agree on how to divide the pool up.
  • The court will order a Conciliation Conference or a private mediation. In the Federal Magistrates Court, the court is now reluctant to order a Conciliation Conference unless the property pool is very small.  Therefore, parties bringing court proceedings should anticipate that they will need to pay for a private mediation during the court process;
  • In the Family Court, the first court event is a Case Assessment Conference where a Registrar of the court will sit down with the parties and their solicitors and ask the parties about the matters and what is stopping them from settling. The court will commonly make Orders designed to resolve any differences between the parties which will include obtaining valuations and attending either a Conciliation Conference or a private mediation;
  • At the Conciliation Conference which is attended by a Registrar, the parties will put their cases to each other and negotiate;
  • The Registrar may reality test what the parties are saying and speak to the parties about the range of outcomes that might be made if the parties go to court.
  • Most Applications (our estimate is 80%) will be settled by the end of the Conciliation Conference.
  • If the parties have reached agreement at the Conciliation Conference, then Terms of Settlement can be drawn up and signed and the Order made on the spot by the Registrar who conducts the Conciliation Conference.
  • If the matter is not settled at the Conciliation Conference, then the matter will need to be mentioned in the court and directions made for trial.
  • The directions for trial commonly cover things such as the filing of Affidavits of Evidence-in-Chief, filing of a Case Outline and Chronology.
  • At the trial, the Judge will hear / read the Affidavits of each of the parties, hear the parties under cross examination, hear submissions made on behalf of the parties and make an Order which will be binding on the parties. The Order is not necessarily made on the day of the trial (reserved judgement).