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Family Law Library

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Mathews Family Law & Mediation Services has created many detailed articles answering the most common questions people have in relation to their rights and Australian Family Law.

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Effect of Overseas Divorce on Australian Property Settlement

Many married Australian’s own properties in the country and or overseas. What happens to these properties in the unfortunate event of divorce?

A recent verdict by the Full Court of the Family Court of Australia in Anderson & McIntosh (2013) FLC 93-568 case showed.

The Anderson & McIntosh Case

The couple involved in the case, married in Australia in 1988. They shifted base to another country in 2006 and then separated in 2009. Finally getting divorced overseas in December 2010. A decree from a foreign country relating to the properties was issued. There were no Orders sought for the couple’s properties in Australia.

The parties reached an agreement on the settlement of the properties in the foreign land, which received approval by the Court in that country. During the same time, a divorce decree was issued. The foreign courts ruling did not deal with the couple’s properties in Australia.

The wife made an application to an Australian court in relation to the property settlement 12 months after the divorce. The Husband sought to have her application dismissed citing the reason that it had been more than 12 months since the divorce and that the S 44(3) of the Act necessitated a Leave of Court for instituting court proceedings, with respect to the settlement of properties in Australia.

The Husband’s plea was dismissed and so he made an appeal to the Full Court, which was also dismissed.

Overseas Divorce not a “Divorce Order”

The following are the key points from the Full Court verdict in the Anderson & McIntosh case:

  • A divorce obtained overseas is recognised under Section 109 of the Family Law Act 1975. But, under the Act, the rights that the parties are entitled to in an overseas divorce are not the same as in the case of a divorce obtained in Australia.
  • Section 44(3) of the Act does not recognise an overseas divorce as a “divorce order”. So, a Leave of Court – permission from the Court to take an action – is not needed to begin legal proceedings in Australia even if it has been 12 months or more since the divorce

Options to Reduce Overseas Divorce Impact

The following options could have been explored by the Husband in the above case to reduce the impact of the overseas divorce:

  • The Husband could have appealed for property settlement of the Australian properties in the foreign country provided such a plea is acceptable in that country.
  • The Husband could have sought orders in relation to property settlement for the properties in Australia at the same time as orders were being sought by the Wife in the foreign country. The Husband could also have entered into a financial agreement as specified by the Act for property settlement with respect to the Australian properties.
  • The Husband could have sought a divorce in Australia.

If you are to undertake getting divorced overseas, it is critical to understand the legalities surrounding property settlement in that country and any country you own properties.

A mutually agreeable decision can be reached only when all facts are available. The assistance of legal experts in such cases becomes invaluable.

Get in touch with the legal experts at Mathews Family Law & Mediation. We are one of Melbourne’s leading law firm with years of experience and a track record of delivering successful outcomes in divorce proceedings, property settlement, child support, spousal maintenance, mediation and a range of other family law issues.

Click here to request a free initial consultation or call (03) 9804 7991 now.

Divorce Property Settlement

Divorce Property Settlement

At Mathews Family Law and Mediation Services, we specialise in all aspects of family law and offer quality and practical legal solutions. We always endeavour to resolve issues amicably and in the best interest of our clients. With years of experience in dealing with the most complex family law issues, we are a divorce law firm you can trust to deliver a favourable outcome.

Our approach is resolution focused, with the aim to get the best possible outcome for our clients. We understand the emotional trauma involved in a divorce and are committed to providing fast, cost-effective and suitable resolutions for all of our clients. We strive to be the best family lawyers in Melbourne, our lawyers are here to listen and guide you through to the outcome you are striving to achieve. If you are looking for experienced family lawyers that are experts in Australian divorce settlement, then Mathews Family Law and Mediation Services is the law firm for you.

Divorce, legally ending your marriage can have many different aspects associated with it. Issues related to family law, children, custody and divorce and property settlement in Australia, whatever the problem we are here to assist you through the process.

Experienced Divorce Lawyers in Melbourne:

Finalising and initiating the process of divorce is an extremely emotional and stressful thing to undertake. We empathise with our clients’ position, priding ourselves on being attentive to their needs. Our dedicated team of lawyers take the utmost care in dealing with your case efficiently, tailoring our approach to achieve your desired outcome. We aim to ensure our clients future is secured, and they receive quality family law and legal advice at every step.

If you wish to discuss any issue relating to family law, please feel free to get in touch with us and book in a free initial consultation.

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Ten Tips For The Holidays

Ten Tips For The Holidays – by Dr. Robin Deutsch, Psychologist

1. Have a very specific plan for the holidays so there is no opportunity for confusion or
conflict. Parents may alternate or split holidays, but when there is disagreement about
this plan, consider the longer view of alternating holidays by even and odd years.
Holidays are often a time of heightened emotions, and the reality of the loss associated
with separation or divorce is no more apparent than when parents must spend a holiday
without their children or without old traditions.

2. Try to continue traditions of the past for the children. If they are accustomed to
spending Christmas Eve with one extended family, try to continue that tradition, if not
every year then in alternate years. Parents should consider maintaining some of the
family traditions the first year after the separation, and alternating beginning the
following year.

3. If you can continue some traditions together, make them clear, attending to details of
who, what, where, when, and how. Some families are able to be together without
conflict arising, but parents often have different expectations about the experience itself,
as well as the amount of time they will be together. The most important thing for the
children is that they do not experience conflict between their parents.

4. Create new traditions that feel special to the children and family. This is an
opportunity for the new family configuration to establish new traditions for the holidays
including creation of a special holiday celebration or experience on a day other than the
actual holiday. It is also an opportunity for the adult who does not have the children, to
establish new practices such as time with friends, volunteering, movie days, and travel.

5. Think long-term—what do you want your children to remember about holidays when
they have their own children? For children, holidays are magical. It is often the little
rituals and practices that are most memorable, such as baking a pie, playing a game or
lighting the fire.

6. Remember, children’s memories include all senses—what they saw, heard, smelled,
tasted and touched. To the extent possible, create a memory that involves each of
these senses and describe it, e.g. we always listen to this music, eat cranberry sauce,
watch this movie, read this book, take this walk, and cut these branches. Do not allow
conflict to enter into these memories.

7. Self-care is very important. Life for the adults has significantly changed. Find new
ways to care for yourself, e.g. exercise, friends, books, movies, clubs, martial arts,
dance, classes, activities that bring new energy and attention. You want to rejuvenate
yourself and refocus on something to help you reconstitute yourself in your new life.

8. Keep your expectations small and be flexible. Focus on one thing that matters most
to you during the holidays, e.g. some sense of connection to your family, having some
time with extended family or close friends, creating a new tradition, continuing a
tradition. Your holiday time will not be the same, but you can decide that you will have
one small goal that you will work toward creating or preserving. Holidays may be
accompanied by unmet needs and dashed hopes. By thinking small you can manage
disappointment and decrease stress.

9. Though you, the parent, may feel disoriented and lost in the changed family, keep
your focus on the children and the new family constellations. Make the holidays about
your children, which means helping them to feel good about spending holiday time with
the other parent.

10. In ten years or twenty years, what do you want to see when you look back on these
years of change? From that long view you can highlight the tone and experience of
these transformed holidays. Remember, children who find holidays stressful because of
the conflict between their parents, have terrible memories as adults of holidays and of
special family moments. It is in your hands to create fond, pleasant memories for your
children. They can be traditional or not, but the message is that you and our family are
important and we find ways to celebrate and enjoy holidays.

Full attribution to Dr. Robin Deutsch provides consultation, mediation, parenting coordination and expert
witness services in Wellesley, MA. She developed and was the director of the Center of
Excellence for Children, Families and the Law at the William James College. Previously
she was an Associate Clinical Professor of Psychology at Harvard Medical School. Dr.
Deutsch was the co-chair of the AFCC Child Consultant Task Force. She served on
both the AFCC and APA task forces that developed Guidelines for Parenting
Coordination, the AFCC task force for Guidelines for Examining Intimate Partner
Violence and the AFCC task force for Court-Involved Therapists. She is the past
president of the Massachusetts chapter of AFCC, past president of the AFCC, and
former Chair of the APA Ethics Committee.

Recent AIFS Research – Children Want to Be Heard and Kept Informed – and Feel Safe!

In June 2018 the Australian Institute of Family Studies (AIFS) released a study ‘Children and Young People in Separated Families: Family Law System Experiences and Needs’ https://aifs.gov.au/publications/children-and-young-people-separated-families-family-law-system-experiences

The study included interviews with children and young people (10 – 17 years of age) who, as a result of family separation, had experienced the family law system.

Of particular importance to those who were interviewed was:
• For their parents to listen to them and take their views into consideration
• For the family law system to listen to them, particularly about safety concerns
• For the family law system to take them seriously
• To be better informed about the family law system
• Speaking to psychologists and counsellors during the family separation process was helpful.

The information provided contributed to the following recommendations:
• Give children and young people the choice to be involved in decision making
• Keep children and young people informed about the decision making process for example important decisions and dates
• Provide children and young children with a clear explanation of the new parenting arrangements
• Ensure children and young people have access to psychologists and counsellors during the decision making process
• Make sure that children and young children are safe and that there is scope to change the parenting arrangements.

The following video provides direct access to the voices of the children and young people: Quotes from the ‘Children and Young People in Separated Families Study’ – https://www.youtube.com/watch?v=9Vaw_hVOoO8&feature=youtu.be

The process of family separation and rebuilding is undoubtedly difficult. The work of organisations like AIFS provide the ‘science’ that is needed to support developments in the complex space that we work within. Our hats go off to AIFS for their hard work, and to the children and young people who allowed us into their world.

For the best advice about your family law parenting matter or family dispute resolution, contact Vanessa Mathews on 9804 7991 or vanessam@mflaw.com.au