FAQS
FAMILY LAW
How can I gain access to my children or locate them if they have been taken by my ex-partner?
If your ex-partner has relocated with your children without your consent, making it difficult to find them at their previous residence or school/daycare, we recommend contacting our office to initiate an application in the Federal Circuit and Family Court of Australia for a Location Order. This order requires Medicare and/or Centrelink to provide the Court with the children’s current address, enabling us to serve the other party with the application for parenting and/or property Orders.
If you have contact details for the other party, it’s advisable to reach out to our office. We can send correspondence to the other party, proposing a plan for spending time with the children. If this approach is unsuccessful, the next step may involve attending mediation before pursuing court action.
How long does the Court process typically take?
The duration of proceedings in the Federal Circuit and Family Court of Australia can vary depending on the nature of your case. It also depends on whether the proceedings involve parenting issues only or both parenting and property settlement matters. Under a new system implemented in September 2021, the Court aims to conclude proceedings within 12 months from the date of filing. The Court also intends to render judgments within three months after the conclusion of a trial. However, the effectiveness of this new timeline may vary in practice.
How long does a mediation session typically last?
Mediation sessions usually span from a half-day (approximately 4 hours) to a full day (around 8 hours). For cases involving either parenting or property issues, a half-day session is often sufficient. However, if your case encompasses both parenting and property matters, a full-day mediation may be necessary. The cost of mediation varies, with fees ranging from approximately $1,100.00 for a half-day session to up to $5,500.00 for a full-day session. The choice of mediator depends on the complexity of your case, with more experienced mediators, such as former Family Court Judges, potentially being recommended in some instances.
What are parenting orders, and are they legally binding?
Parenting orders are legally binding directives issued by the Federal Circuit and Family Court of Australia. These orders specify various aspects of parental responsibility, including where the child lives, the time they spend with each parent, and other matters related to their care and wellbeing. Failure to comply with parenting orders can lead to serious consequences, including changes to the existing orders. Additionally, any breaches of these orders may result in legal action, such as a Contravention Application.
How can I prevent my ex-partner from relocating with my children to another state or country?
If you are concerned that your ex-partner may plan to move interstate or overseas with your children, it’s essential to act promptly. Seek legal advice and consider making an urgent application to the Court, requesting orders that restrict their ability to relocate beyond a specified distance from their current location. Taking action before the other party relocates and becomes settled in a new area is crucial, as it becomes more challenging to reverse the move once they are established, with factors like employment, children’s school attendance, lease agreements, and property purchases complicating the matter.
What should I do if my children are experiencing abuse?
In cases of child abuse, it’s vital to take immediate action to protect the safety and wellbeing of your children. Contact the relevant state welfare authority and/or the Police to report the abuse allegations. Provide detailed information about the abuse incidents and the timeline of events. Your children may be required to provide statements to the welfare authority and/or the Police as part of the investigation process.
What is an Independent Children’s Lawyer (ICL)?
An Independent Children’s Lawyer (ICL) is a legal professional appointed by the Court, often in cases involving significant issues like allegations of abuse, drug use, or violence. ICLs are funded by Legal Aid and act as advocates for the children involved. They have a twofold role: to represent the best interests of the children and to provide the Court with recommendations concerning parenting arrangements. ICLs may meet with the children and play an administrative role in the proceedings, issuing subpoenas and organizing family reports to assist the Court in making informed decisions.
What steps should I take if my ex-partner is not following Court orders?
If your ex-partner is not complying with Court orders, take the following steps:
Notify your ex-partner in writing (email or text) that they are not adhering to the Court orders.
If the issue remains unresolved, attempt to arrange mediation to obtain a s60I certificate, which may be required before initiating legal proceedings.
If mediation fails to resolve the matter, send a further letter to your ex-partner, giving them a 14-day notice of your intention to commence Court proceedings if they do not rectify the situation.
If the issue persists, initiate contravention proceedings in Court.
What rights do grandparents have in family matters?
Grandparents have rights recognized under the Family Law Act 1975, which requires the Court to consider the nature of the relationship between the child and other persons, including grandparents or relatives of the child. Depending on the level of involvement and support provided by grandparents in the child’s life, the Court may make orders regarding living arrangements and visitation.
What distinguishes a Barrister from a Solicitor?
Barristers and Solicitors are both legal professionals who handle various aspects of legal matters. The primary distinction lies in their roles:
Barristers are legal professionals trained in Court advocacy and are typically responsible for representing clients in Court proceedings, presenting arguments, and cross-examining witnesses.
Solicitors, on the other hand, handle a broader range of legal tasks. They often manage cases before they reach Court, provide legal advice, draft legal documents, negotiate settlements, and engage Barristers for Court appearances.
In essence, Barristers are courtroom advocates, while Solicitors oversee the overall legal process and interact with clients for a wide range of legal matters.
What is a Registrar in the context of family law?
Registrars are officers of the Court who assist Judges in managing family law cases. While they have fewer powers than Judges, Registrars can make findings and orders related to administrative issues. They often handle preliminary matters, such as first mentions or narrowing down issues in a case. Judges, on the other hand, possess broader judicial powers and can make binding judgments on complex legal matters.
CRIMINAL LAW
What are my available courses of action if I face criminal charges?
- Admitting guilt (acknowledging the charges and accepting punishment).
- Denying guilt (challenging the charges and seeking a determination by the Court that there is insufficient evidence for conviction).
- Engaging in negotiations with Police Prosecutions to modify or withdraw the charges.
- In some cases, exploring the possibility of “mediation” or “diversion” to address the charges outside the formal Court process.
Can the Police conduct a body search?
Under certain circumstances, the Police have the authority to perform a person search. However, if such a search is carried out, it must adhere to the following principles:
- Preserve the individual’s dignity and minimize embarrassment during the search.
- If conducted publicly, restrict it to a frisk search whenever possible. A more thorough search should be conducted in private, with a police officer of the same gender performing the search.
Can the Police search my residence without a warrant?
There are situations where the police can enter your property without obtaining a warrant. Some of these situations include:
- Investigating traffic offenses like drunk driving to conduct a breath test on an occupant.
- Preventing domestic violence.
- Effecting an arrest or searching for evidence that could be destroyed.
- Responding to a crime scene.
If the Police enter your property without a warrant, it is advisable to consult with a Solicitor to determine the legality of their actions.
Why should I hire a lawyer if I am innocent?
Engaging a criminal Solicitor is crucial to protect your rights and interests, regardless of your innocence or guilt. The legal system is complex, and navigating it can be challenging. Criminal Solicitors can also negotiate with the Police regarding any potential discrepancies that may lead to the charges being dropped.
What are the consequences of pleading guilty to a charge?
Pleading guilty can result in various consequences, including:
- Good Behavior Bond.
- Fines.
- Community Service Orders.
- License suspension/disqualification.
- Probation Orders.
- Immediate Parole.
- Suspended Sentence.
- Imprisonment.
Additionally, pleading guilty or being found guilty can lead to other potential repercussions, such as employment-related issues, adverse impacts on licenses or registrations, evidence against you in future civil proceedings, reporting conditions, asset confiscation, insurance policy issues, travel restrictions, and potential deportation in certain circumstances.
What happens when I contest a Domestic Violence application?
When contesting a Domestic Violence application, the typical process involves the following steps:
- A Magistrate directs both parties to submit evidence and issue subpoenas if necessary.
- The aggrieved/applicant is instructed to file evidence in an affidavit by a specified date.
- You will receive the aggrieved/applicant’s affidavit and be required to respond to the allegations in an affidavit by a certain date.
- Subpoenas may need to be filed with the Court.
- The matter progresses to a Trial review to confirm that all materials are ready for a Trial.
- The matter is then set for a Trial on a future date. Some Courts may require additional materials such as “issues in dispute” and “case outlines” to be filed.
What are my options as a respondent in a Domestic Violence application?
As a respondent in a Domestic Violence application, you have several options:
- Consent to the Protection Order without admitting guilt. This results in a final Protection Order for a period of five (5) years without acknowledging the allegations.
- Negotiate the terms of the Order or propose an undertaking instead of proceeding with the Application.
- Contest the application and seek a Hearing.
What happens on the first Court date, and can I request an adjournment?
On the initial Court date for a criminal offense, you have several options:
- Adjourn the matter to seek legal advice.
- In less serious cases, finalize the matter by accepting sentencing if pleading guilty.
- For more serious charges or if contesting, adjourn the matter for negotiations with Police Prosecutions or to request the evidence brief.
- If not on bail, you may be required to sign a bail undertaking if seeking an adjournment.
What should I do if Police contact me for an interview?
If the Police contact you and wish to conduct an interview, it is advisable to contact a legal representative who can make inquiries on your behalf. It is not recommended to speak with the Police or participate in an electronic record of interview without first obtaining legal advice, as any information provided may be used against you.
What is Bail?
Bail is the Court’s authorization for an individual charged with a criminal offense to remain in the community while their case is pending resolution. In Queensland, most individuals facing criminal charges are placed on bail. Bail conditions may include:
- Attending Court on a specific date.
- Residing at a designated address.
- Reporting to a Police station at specified times.
- Avoiding contact with certain individuals/witnesses.
- Complying with a curfew.
- Avoiding specific venues or addresses.
Failure to adhere to bail conditions can result in additional charges.