Service of Court Documents
There is a myriad of rules when it comes to service of Court documents. Does the document need to be served personally (hand-to-hand)? Can the document be posted? Can it be emailed? What if the persons whereabouts are unknown but they can be contacted on social media?
As a general rule all Applications filed with the Family or Federal Circuit Court must be served personally. This is usually done by engaging a process server to serve documents on the parties' behalf. In some circumstances, depending upon the circumstances and the Court being satisfied that the other party is in receipt of the Court documents, the Court might deem that service has been effected. For example a Court may be satisfied that service by way of email and Facebook is satisfactory service.
Because the rules of service are strict or otherwise at the discretion of the Court, it is sometimes necessary to seek an order from the Court for "substituted service". In such circumstances the Court will direct the party trying to serve the documents as to what method of service it will accept. For instance it may order that the party be served by posting the documents to their employer's address or to a relative's address.
Springwood Lawyers is able to assist you in locating the party to be served and to serve the party in accordance with the Court rules. If necessary, Springwoods Lawyers is able to make an application on your behalf for substituted service.
Family law disputes over schools
Where parents live following separation can lead to be a dispute over which school a child should attend. Parents may be living, or planning to live some distance apart from each other, to the extent that the necessary travel to get the child to school from one of the parent's residences, will be unreasonable for the child or impractical for that parent. This is not usually a significant problem where the child lives with one parent and spends weekend time with the other parent, but it can present a significant problem where a parent is seeking an equal time arrangement, which involves both parents being able to transport the child to school.
Common sense would say for the parties to select a school close to the midpoint between the their residences and enrol the child at such school. It might not be this simple however. For instance, there may be a "catchment" issue and the school at the midpoint may not accept the child's enrolment, because neither parent lives in the school's catchment area. How practical it will be for the parents to support the child's friendships and extracurricular activities when the child does not live in close proximity to their school, may also be an issue.
Negotiations regarding schools need to be child focused and with an eye to what is practical.
Commencing court proceedings for parenting matters
When separating parties are in dispute over parenting arrangements for children, the first thing they need to do if they cannot resolve the dispute themselves, is to arrange Family Dispute Resolution (FDR). This is a mediation and there are several forms of FDR which you can choose from and the one you choose (i.e. a private FDR or an FDR through a Family Relationships Centre), will depend upon your situation. If you cannot resolve your dispute at an FDR, then the FDR provider will issue a 60I Certificate and this will enable you to commence Court proceedings for parenting matters. You can, in only limited circumstances, commence such court proceedings without having a 60I Certificate.
Thus the documents which you need to file at the Court to commence proceedings for parenting matters are as follows:
1. 60I Certificate (or if you think your matter falls in one of the limited exceptions – an Affidavit – Non-Filing of Family Dispute Resolution Certificate)
2. Initiating Application This document sets out the orders which you seek, including the Orders which you seek on a final basis and the orders which you are seeking that the Court make initially – the "interim orders".
3. Affidavit This document sets out your evidence, in support of why the Court should make the orders which you seek. It is very important that your Affidavit address what is called the "60CC factors", which are set out in the Family Law Act 1975.
It is very important that your documents are prepared properly and that they contain only relevant evidence, but at the same time, contain all of the relevant evidence. Poorly prepared documents are likely to negatively impact the outcome of your case.
Commencing court proceedings for property settlement
If you have exhausted all reasonable efforts to negotiate a property settlement agreement outside of court, it may be time to initiate court proceedings. How do you go about doing this? To commence proceedings in relation to property matters, you are required to file three (3) documents in the Federal Circuit Court of Australia:
1. Initiating Application
This document sets out the orders you ultimately want the court to make. You may need short term or urgent orders also, and in such circumstances you will also need to ask the Court to make what is called "interim orders".
This document sets out in words, your evidence in support of why, pursuant to the Family Law Act 1975, the court should make the orders you are seeking in your Initiating Application.
3. Financial Statement
This document sets out your weekly income and expenses, as well as your assets (including superannuation entitlements) and your liabilities.
It is very important that your documents are prepared properly and are correct. Poorly prepared or inaccurate documents can negatively impact the outcome of your case.
Division 7A in property settlements
When parties separate and the main asset is a private company controlled by either one or both of the parties, a payment from one spouse to the other from such company, will now have taxation consequences for the receiving spouse. In the past, such payments have been exempt from Division 7A of the Income Tax Assessment Act 1936. Consequently, monies received by a spouse from the company as part of the property settlement, were not considered dividends or property and therefore not subject to tax.
From 30 July 2014 however, such payments will now be treated as a dividend received by the receiving spouse pursuant to Division 7A of the Income Tax Assessment Act 1936. Franking credits can still be applied towards such dividends.
Parties to a matrimonial property settlement now need to be aware however, especially the receiving spouse, that taxation consequences will arise if monies are paid to them from a private company as part of a family law property settlement.