I’m looking for a solicitor to help me with my divorce. My ex is basically holding all the cards, I’ve been forgoing

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Customer: Hello, I’m looking for a solicitor to help me with my divorce. My ex is basically holding all the cards, I’ve been forgoing part of my child support for the mortgage and I have just found out that he should be paying substantially more. Much more obviously, but I am wondering if legal aid will help?
JA: How old is the child? What state does he live in?
Customer: we have 6 children together and both live in QLD
JA: Is there an agreement for payment of child support?
Customer: Just verbal, but he transfers the money directly into my account, so there is solid proof
JA: Anything else you want the Lawyer to know before I connect you?
Customer: it was an emotionally abusive relationship and I am now left with nothing, I was at home raising the kids, so I have no super or retirement plan. I barely can feed the kids each week
Answered by John Melis in 1 hour 2 years ago
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John Melis
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John Melis, Expert

Hi, I’m John, solicitor, and reviewing your post, and may need to ask a few questions a long the way to assist you.

Where the relationship has broken down, there are a couple of steps that may be taken. If not done so already, mediation can be used to consider reconciliation through relationships Australia. If that does not achieve an outcome the next step is to consider starting the formal process of financial separation.

Financial separation involves having all the assets total into a pool, and then a division is decided upon who gets what percent, for example you may get 70% and your partner 30%. In determining the percentage split all factors are taken into account which include direct and indirect contributions.

The aim should be to settle the financial aspect amicably without processing the matter in court whether it be the Federal Circuit Court or Family Court when children are involved.

Separation can occur under one roof, which means you do not need to leave the family home.

If separation cannot occur amicably it will need to proceed into the court.

If you are facing domestic violence you may want to consider have a family violence order put into place your safety.

Financial separation involves various aspects with alteration of property interests under section 79 of the Family Law Act 1975. Financial separation will usually take into account four facts:

[1] The process will consider the extent of the property of the parties and its value.

[2] The process will consider what contributions have been made by the parties, including direct and indirect contributions of a financial character and non-financial character, and contributions to the welfare of the family, including contributions as homemaker and parent.

[3] The process will consider the circumstances which relate to the present and future needs of the parties and to their means, resources and earning capacity, actual and potential.

[4] The process will consider the effects of points 1 to 3 and resolve what order is just and equitable in all the circumstances of the particular case.

Alteration of property interests between separating couples is an emotional and stressful process and seeking help early is important.

The first step with financial separation is putting together a list of all the assets, and where you are not sure what they are you will need to do a little bit of investigative work to complete list.

Once you have the list ready, the next step is to either commence the process with the forms from the Federal Circuit Court’s website, or with the assistance of a lawyer.

If the financial separation process is done on an amicable basis the matter should be resolved within 3 to 6 months.

The important aspect of the financial separation process is documenting the division of the assets in a binding financial agreement or by consent orders which can be stamped by the court making it a more solid agreement to end the matter.

You have a legal right to protect your interests in this situation.

Please use the following link to assist you with working out how the division of the asset pool is calculated:

http://classic.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s79.html

PARENTING

The best situation with parenting is to try and resolve the matter amicably without court proceedings through family mediation with a counsellor or lawyer.

The Family Relationship Centre is a good option to start with as you will be able to mediate the process without a lawyer and control the situation in the way you require with the protection and best interest of your child.

https://www.familyrelationships.gov.au/

Equal responsibility for the care and provision of children is assumed by the Court. However, various factors will influence this assumption. Factors includes the current care arrangements for the child, finances, drug use, moral issues and criminal behaviour.

Despite the strong emphasis given to shared parental responsibility after separation, the paramount consideration of the court remains the best interests of the child. Shared parenting outcomes are desirable, indeed preferable, but only where this is consistent with the best interests of the child.

There is a presumption that “equal shared parental responsibility” is in the best interests of children. An order made for equal shared parental responsibility imposes an obligation on the court to consider ordering “equal time” or “substantial and significant time”.

Where an order is made for shared parental responsibility it imposes on parents an obligation to consult on “long-term issues”. Long-term issues are specifically defined in the FL Act to include matters such as health, religion, education, change of name and changes to living arrangements that make it significantly more difficult for the child to spend time with the parent. The court must also consider whether each parent has in the past fulfilled their responsibilities as a parent.

It is possible for parents to come to an agreement between themselves about their children’s care post-separation, without involving any court process. This agreement is called a “parenting plan”. Because it is developed and agreed between both parents, there is no need for the court’s involvement; it is an informal agreement. A parenting plan will generally be more successful where there is a high degree of cooperation and low conflict between the parents. Parents are free to alter the terms of the parenting plans whenever they wish. For example, where the child starts school and arrangements for the school holidays need to be made. In this way, parenting plans provide for great flexibility.

A parent plan must be in writing, signed by the parties and dated.

The parties to a parenting plan will normally be the parents of the child, but could include other persons such as grandparents or step parents who are involved in the care, welfare and development of that child.

The Family Law Act 1975 encourages parties to settle family disputes and to use litigation in the court system only as a last resort.

If the mediation fails the next step is to raise proceedings the Family Court to seek orders for parenting.

You will need to commence an action in the Family Court.

It is recommended that you do use lawyer for this process.

You can run the case yourself

The application is on the following link:

This link is a do it yourself guide on the family court website.

When you seek orders you need to be very precise on the details.

http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/forms-and-fees/court-forms/diy-kits/kit-diy-initiating-application

The most important aspect that needs to be addressed to the court is:

FAMILY LAW ACT 1975 - SECT 60CC

How a court determines what is in a child's best interests

Determining child's best interests

(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

Note: Section 68P also limits the effect of this section on a court making decisions under that section about limiting, or not providing, an explanation to a child of an order or injunction that is inconsistent with a family violence order.

Primary considerations

(2) The primary considerations are:

(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

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

Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

Additional considerations

(3) Additional considerations are:

(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

(b) the nature of the relationship of the child with:

(i) each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child);

(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child ;

(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

(f) the capacity of:

(i) each of the child's parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(j) any family violence involving the child or a member of the child's family;

(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter;

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m) any other fact or circumstance that the court thinks is relevant.

Consent orders

(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).

Right to enjoy Aboriginal or Torres Strait Islander culture

(6) For the purposes of paragraph (3)(h), an Aboriginal child's or a Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

(a) to maintain a connection with that culture; and

(b) to have the support, opportunity and encouragement necessary:

(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

(ii) to develop a positive appreciation of that culture.

Once you complete the application you file the same with the court and then serve the document on the other party.

There is a small court fee that you will also be required to pay for the process as well.

You have a legal right to protect your interests in this important situation.

Legal Aid QLD

The main legal web address as follows

https://www.legalaid.qld.gov.au/Home

Legal Aid Queensland on 1300 65 11 88

LAQ directory switchboard—call 07 3182 5182.

The link below will help your son narrow the search to find legal aid lawyer

http://www.legalaid.qld.gov.au/Listings/Find-a-lawyer

Office locations

  • Brisbane office—head office
  • Bundaberg office
  • Caboolture office
  • Cairns office
  • Inala office
  • Ipswich office
  • Mackay office
  • Maroochydore office
  • Mount Isa office
  • Rockhampton office
  • Southport office
  • Toowoomba office
  • Townsville office
  • Woodridge office

Brisbane office—head office

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Brisbane Qld 4000

​Thank you for reaching out today.

You have a legal right to protect your interests in this important situation.

I am a user like you in this chat forum to assist in your important question today.

Thank you kindly for rating me with 5 stars, which helps me support the community.

You can come back to this post any time to ask questions without additional charge.

I hope I have assisted with answering your important question today, and thank you for supporting the community.

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