Family Law

When can I get divorced?

A husband or wife can apply solely or jointly for divorce in the FEDERAL CIRCUIT COURT OF AUSTRALIA provided the parties can show that there has been an irretrievable break down of the marriage and that they have been separated for a period of 12 months. A husband or wife can be deemed to be separated even if they decide to reside under the one roof at the same address post separation. Once a court is satisfied that you have met all of the necessary criteria,  a divorce will be granted and become final one month and one day following the divorce hearing.

There are benefits to applying for a Joint Application for Divorce as opposed to a Sole Application for Divorce as both parties will not be required to attend the Divorce Hearing. We suggest that you seek legal advice from Mahony’s Lawyers in respect to these Applications as they are all to be undertaken on the Commonwealth Courts Portal and there may be difficulties with service of the Sole Application for Divorce.

When can I apply for a property settlement?

A husband, wife or de facto spouse can apply to the FEDERAL CIRCUIT COURT OF AUSTRALIA  for a property settlement and/or spousal maintenance at any time after separation. The time limit for applying for a property settlement in the Court is 12 months following a grant of divorce (two years following separation in the case of de facto relationships). If a husband or wife wishes to apply for a property settlement in circumstances where the parties have been divorced for more than 12 months (more than 2 years in the case of a de facto spouse party) you will need to apply to the Court requesting an extension of time for the Court to deal with your property settlement  Specific legal advice will need to be provided in these circumstances.

Am I entitled to half?

Each case is different. A husband, wife or defacto may be entitled to 50% of the asset pool although there are various factors which could increase or decrease a party’s entitlement such as whether there are children of the parties, with whom the children are living, contributions of the parties both financial and non financial, the length of the marriage or de facto relationship and future needs. Consideration is also given to whether  a party has earning capacity or not, suffers from health issues or there is anything preventing them from earning an income. Our advice is specifically tailored to each individual person as each matter will be different. 

Who gets the Children?

Separation is difficult for everyone involved including the children. If parties can reach an agreement with respect to parenting matters including care arrangements for the children and parental responsibility it is beneficial for the children. The paramount consideration must be what is in the best interests of the child. Mediation at a community based centre is appropriate in circumstances where there is conflict between parents regarding who the children will live with. Mediation can often assist parties to reach a final outcome regarding parenting issues. In the event parents cannot come to an agreement regarding care arrangements and parental responsibility, parents will be supplied with a certificate confirming that they attempted mediation however it was not successful. Once this certificate is obtained either parent can apply to the Court for orders in respect of children’s matters.

I have been locked out of the house – what do I do?

In circumstances where you have been locked out of the house it is now appropriate to seek legal advice. We would recommend you obtain stable accommodation and if the children are in your care that the children are somewhere safe for the time being. Your lawyer can assist you with engaging in negotiation with your former spouse in order to reach a resolution in respect of property settlement matters and your entitlement to the house.  In some cases, it may be appropriate to contact the police who can attend the home with you to collect some personal effects in the interim.

What is an Intervention Order and how does it affect my case?

An Intervention Order may  be issued by the Police if domestic violence is occurring between parties. This can often restrict one party from coming into contact with the other party and/or the children. In circumstances where an Intervention Order has been issued against you it may prevent you from seeing your children and proceeding to mediation.  In these circumstances you will need to seek assistance from a Family lawyer to apply for Court Orders to proceed the case. 

Is he/she entitled to superannuation?

Depending on the length of the relationship it may be that your  former-spouse is entitled to a portion of your superannuation. In long marriages and de facto relationships it is likely that there will be a equalisation of the total combined superannuation of the parties. In shorter relationships this is less likely. Each case is different and we provide specific advice tailored to each of our clients’ circumstances.

But he/she had nothing before I met them – what do the Courts look for in property division?

Various matters will be taken into account with respect to property division in circumstances where matters proceed to Court or negotiated by the parties. These factors are set out in the Family Law Act. For example the length of the marriage, financial and non financial contributions at the commencement of the marriage and during the marriage and the future needs of the parties. In circumstances where there is a lengthy marriage or de facto relationship it is unlikely that initial contributions will be given much weight. In short relationships initial contributions will be given more weight in determining who gets what. You should seek specific legal advice in respect of property settlement matters as each case will be different.

Why do the children need an Independent Lawyer?

In circumstances where there is a high level of conflict between parents and in circumstances where there are serious safety issues including violence, sexual abuse, neglect, drug/alcohol issues or  children showing signs of distress,  the Court will often appoint an Independent Childrens' Lawyer to assist the Court with what is in the best interests of the child. Independent Children’s Lawyers are obliged to consider the views of the child, but ultimately provide their own, independent perspective about what arrangements or decisions are in the child’s best interests to the Court. 

Work and Injury Law

When do my work injury expenses come to an end what if I need treatment?  

As an injured worker, you are entitled to income maintenance (weekly payments) for two years from the date of your first entitlement. Your income maintenance can be reduced or discontinued for various reasons during the two years, such as if you cease to be incapacitated for work or you fully return to work.

If you have been receiving weekly payments for your work injury under the Return to Work Act, your entitlement to payment of medical expenses ceases 12 months after your weekly payments. However, if you and your doctor think that you will need surgery after the period you are entitled to medical expenses, you can make an Application for pre-approval of future surgery.

If you are a “seriously injured worker”, meaning that you have been assessed as having at least a 30% (or more) Whole Personal Impairment, you will be entitled to weekly payments at 80% of your average weekly earnings until retirement age and reasonable medical expenses for life. Another exception to the time restriction imposed upon medical expenses is if you need a therapeutic appliance to maintain your capacity.

I injured myself at work – can I sue my boss?

Most Employers pay premiums to Return to Work SA which means that they are insured against Workers Compensation  claims. This means that if you make a claim, your Employer is able to support you in the event of a work injury. Lodging a Workers Compensation  claim does not mean that you are suing your Employer.  Generally speaking, the Return to Work Act prevents you from suing your Employer if you are entitled to benefits under the Act. An exception to this is if you have been declared as being seriously injured (having a 30% Whole Person Impairment). If you have been declared as being a seriously injured worker you are entitled to pursue a common law action against your Employer for economic loss. Should you decide you want to do pursue an action against your Employer this would mean that you would not have any further entitlements to weekly payments or redemptions.

What is permanent impairment and what does it mean?

If you have any work injury which results in the loss, loss of use, damage or malfunction of a part of your body this could be considered a “permanent impairment”. Once your work injury has stabilised (reached maximum medical improvement) and all medical treatment has been completed, an impairment assessment can be undertaken by an Accredited Impairment Assessor. After you have been assessed by an Accredited Impairment Assessor, you will be advised of the degree of Whole Person Impairment (WPI) you suffer. This degree of WPI is assessed in accordance with Assessment Guidelines and determines if you have any further entitlements aside from income maintenance and medical expenses. If you are assessed as having the equivalent to 5% WPI or more, you may be entitled to a lump sum payment under the Return to Work Act.  Contact us if you think you may suffer from a permanent impairment and are seeking to undergo a permanent impairment assessment.

I will never get back to work – will I be compensated for my loss of income?

The Return to Work Act focuses on assistance to workers to recover and return to work; however, if you are unable to return to work you may have the following options. If you are an injured worker and have been assessed by an Accredited Impairment Assessor as suffering from a Whole Person Impairment between 5% - 29%, you may be entitled to a lump sum payment for economic and non-economic loss. Your entitlement to this lump sum payment would take into consideration the level of your permanent impairment, your age and the hours worked at the time of your injury.

You would also be entitled to income maintenance (weekly payments) for two years from the date of your first entitlement.

There may also be the option of considering a redemption (or payout) which if agreed to, would mean that you are not entitled to any further income support.

If you are determined as having a Whole Person Impairment of at least 30% you would be entitled to income maintenance and medical expenses until the age of retirement.

What if I injured myself before the Return to Work Act – am I effected?

Most Workers Compensation claims should be lodged within six months of your work injury arising.In certain circumstances you may be able to make a claim after this period.If you injured yourself prior to the Return to Work Act coming into effect (1 July  2015) and did not make a WorkCover Claim, your entitlements may be effected by the transitional arrangements. If you were injured prior to the Act coming into effect and made a claim, you are entitled to income support until 1 July 2017 (two years after the Act came into effect). This period of time includes payment of your [reasonable] medical expenses and for a further 12 months after your income maintenance has ceased. If you were injured prior to 1 July 2015 and determined as having a Whole Person Impairment of at least 30% you would be entitled to income maintenance until the age of retirement and reasonable medical expenses for life.

I think I am a seriously injured worker – what can I do?

If you are a seriously injured worker, you have been assessed by an Accredited Impairment Assessor as suffering from a permanent Whole Person Impairment of at least 30%. It is quite difficult for a worker to be assessed as having a Whole Person Impairment of at least 30% unless they have a significant injury or multiple serious injuries from the same calendar year. Physical and psychological injuries are not able to be combined to meet the 30% threshold. Contact us if you have not yet been assessed by an Accredited Impairment Assessor but believe you are suffering from a significant and permanent impairment.

Under the Return to Work Act you would be entitled to ongoing weekly payments of 80% of your average weekly earnings until retirement age or until the age of 65 and reasonable medical expenses for life. This system also allows a worker to accept a redemption (or payout) to finalise your entitlement to income support. You may also be entitled to a lump sum payment for non-economic loss (but not economic loss) with the amount payable being determined according to the degree of permanent impairment you are suffering. If you are a seriously injured worker you may decide that you want to make a common law claim against your Employer.Should you decide you want to  pursue an action against your Employer this would mean that you would not have any further entitlements to weekly payments or redemptions.