How to run your family law case a do it yourself kit to help you prepare a family law case and represent yourself in court




старонка26/26
Дата канвертавання19.04.2016
Памер356.93 Kb.
1   ...   18   19   20   21   22   23   24   25   26

Other orders


This paragraph shows how specific areas can be addressed in an order.
  1. That each party let the other party know if the child requires medical attention while in their care. The parties will advise each other within 24 hours of the child receiving medical attention.
  2. That the parties keep each other informed of any change of address or telephone number within seven (7) days of any such change.
  3. That the ____________ authorise the child’s school to provide the ____________ with copies of the child’s school reports.

Interim orders


This example is of a ‘Departure prohibition order for children’ and ‘recovery order’. Get legal advice about wording for your court order.
  1. That this case be deemed urgent and that all times be abridged.
  2. a. Until further order, the husband/wife/mother/father/both parties, his/her servants and/or agents are restrained from taking or sending or attempting to take or send the child/ren;: ____________, born ____________, ____________, born ____________, from the Commonwealth of Australia
b The Marshal and all officers of the Australian Federal Police and the police forces of the states and territories are requested and authorised to give effect to these orders.
  1. That the court issue a recovery order for the return of the child to husband/wife/mother/other party a person who has a parenting order that provides them with residence for the said child/ren.
a. A recovery order do issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the police forces of all the states and territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
b. To find and recover the child/ren: ____________, born ____________, ____________, born ____________,and to deliver the said child to the husband/wife/mother/father and the person effecting such recovery agree to be appropriate; and
c. To stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child/ren may be found.
  1. That the child be permitted to travel outside Commonwealth of Australia notwithstanding that the consent of the husband/wife/mother/father has not been obtained AND IT IS requested that the Department of Foreign Affairs and Trade issue a passport for the said child.

Appendix five

Words in bold are explained in ‘What do these words mean?’ at the front of this booklet.

Family Law Act 1975 – Property and spousal maintenance (for married couples) s.80 – General powers of court


Section 80 says that the court can do any or all of the following things:

  • order payment of a lump sum, in one amount or by instalments

  • order payment of a weekly, monthly, yearly or other periodic sum

  • order that a transfer or settlement of property be made as payment of maintenance for a party to a marriage

  • order that payment of any sum be paid in any way

  • order that any deed or instrument be executed and that these documents of title be produced to enable an order to be carried out or to provide security for the due performance of an order. Or order that any other things be done to enable this

  • appoint or remove trustees

  • order that payments be made to a party to the marriage, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the marriage

  • make a final order, a temporary order or an order for a particular length of time or for the life of a person or during the lives of others or until further order

  • impose terms and conditions

  • make an order by agreement

  • make any other order which it thinks is necessary to do justice

  • make an order under this Part at any time before or after the making of a decree under another Part.

Section 72 – Right of spouse to maintenance


Section 72 talks about the right of a husband and wife to receive maintenance. The section says that:

A party to a marriage is liable to maintain the other party if they are reasonably able to do so, if and only if, that other party is unable to support herself or himself adequately because of:



  1. having to care for a child of the marriage who has not turned 18 years old

  2. their age or physical or mental incapacity which affects them their employment or ability to be employed

  3. any other adequate reason

having regard to any matter referred to in subsection 75(2).

Section 75(2) – Matters to be taken into account in relation to spousal maintenance


The factors found under s.75(2) of the Act are to do with property and spousal maintenance cases.

The section lists the matters to be taken into consideration in relation to spousal maintenance:



  1. the age and health of each of the parties

  2. the income, property and financial resources of each of the parties and the physical and mental ability of each of them to be employed

  3. whether either party has the care or control of their child who is under 18 years of age

  4. commitments of each of the parties that are necessary to enable the party to support:

    1. himself or herself, and

    2. a child or another person that the party has a duty to maintain

  5. the responsibilities of either party to support any other person

  6. subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under:

    1. any Australian law or the law of another country, or

    2. any superannuation fund or scheme, within or outside Australia

and the rate of the pension, allowance or benefit being paid to either party

  1. where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable

  2. the extent to which the payment of maintenance to the party would help that person to receive education or training, enabling them to get a job or establish a business

  3. the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, and

  4. the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party

  5. the length of the marriage and the extent to which it has affected the earning capacity of the party who is seeking maintenance

  6. the need to enable a party to continue to parent the children if they wish to do so

  7. if either party is living with another person – the financial circumstances relating to their living situation

  8. the terms of any order made or proposed to be made under Section 79 in relation to:

    1. the property of the parties

    2. vested bankruptcy property in relation to a bankrupt party

  9. the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

    1. a party to the marriage; or

    2. a person who is a party to a de facto relationship with a party to the marriage; or

    3. the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

    4. vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

  10. any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage, and

  11. anything else the court decides to take into account

  12. the terms of any financial agreement that the parties are legally obliged to obey

  13. the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

Appendix six

Words in bold are explained in ‘What do these words mean?’ at the front of this booklet.

Family Law Act 1975 – Property and spousal maintenance (for de facto couples)

Section 90SS – General powers of court


Section 90SS says that the court can do any or all of the following things:

  • order payment of a lump sum, in one amount or by instalments

  • order payment of a lump sum, in one amount or by instalments

  • order payment of a weekly, monthly, yearly or other periodic sum

  • order that a transfer or settlement of property be made by way of maintenance for a party to a de facto relationship

  • order that payment of any sum be paid be in any way

  • order that any deed or instrument be executed and that these documents of title be produced to enable an order to be carried out or to provide security for the due performance of an order. Or order that any other things be done to enable this

  • appoint or remove trustees

  • order that payments be made direct to a party to the de facto relationship, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the de facto relationship;

  • make final order, a temporary order or an order for a particular length of time or for the life of a person or during the lives of others or until further order

  • impose terms and conditions

  • make an order by agreement

  • make any other order which it thinks necessary to do justice

  • make an order under this Part at any time before or after the making of a decree under another Part.

Sections 90SE and 90SF(1) – Right of defacto spouse to maintenance


Section 90SE talks about the right of defacto spouse to receive maintenance. The section says that:

After the breakdown of a defacto relationship, a court may make such order as it considers proper for the maintenance of one of the parties to the de facto relationship.

Section 90SF(1) says that:

a party to a de facto relationship is liable to maintain the other party to the de facto relationship if they are reasonably able to do so, if and only if, that other party is unable to support himself or herself adequately because of:



    1. by reason of having the care and control of a child of the de facto relationship who has not attained the age of 18 years; or

    2. by reason of age or physical or mental incapacity for appropriate gainful employment;

    3. for any other adequate reason.

Section 90SF(3) – Matters to be taken into account in relation to defacto spousal maintenance


The factors found under s.90SF(3) of the Act are to do with property and spousal maintenance cases.

The section lists the matters to be taken into consideration in relation to spousal maintenance:



  1. the age and health of each of the parties

  2. the income, property and financial resources of each of the parties and the physical and mental ability of each of them to be employed

  3. whether either party has the care or control of a child of the de facto relationship who is under 18 years of age

  4. commitments of each of the parties that are necessary to enable the party to support:

    1. himself or herself; and

    2. a child or another person that the party has a duty to maintain

  5. the responsibilities of either party to support any other person

  6. subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:

    1. any Australian law or the law of another country; or

    2. any superannuation fund or scheme, within or outside Australia; and the rate of the pension, allowance or benefit being paid to either party

  7. a standard of living that in all the circumstances is reasonable

  8. the extent to which the payment of maintenance to the party would help that person to receive education or training, enabling them to get a job or establish a business

  9. the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt

  10. the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party

  11. the length of the de facto relationship and the extent to which it has affected the earning capacity of the party who is seeking maintenance

  12. the need to protect a party who wishes to continue to parent the children if they wish to do so

  13. if either party is cohabiting with another person—the financial circumstances relating to their living situation

  14. the terms of any order made or proposed to be made under s.90SM in relation to:

    1. the property of the parties; or

    2. vested bankruptcy property in relation to a bankrupt party

  15. the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

    1. a party to the de facto relationship (in relation to another de facto relationship); or

    2. a person who is a party to another de facto relationship with a party to the de facto relationship; or

    3. the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

    4. vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii)

  16. the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:

    1. a party to the de facto relationship; or

    2. a person who is a party to a marriage with a party to the de facto relationship; or

    3. the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

    4. vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

  17. any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship;

  18. anything else the court decides to take into account

  19. the terms of any Part VIIIAB financial agreement that is binding on a party to the defacto relationship

  20. the terms of any financial agreement that the parties are legally obliged to obey.

Appendix seven

Words in bold are explained in ‘What do these words mean?’ at the front of this booklet.

Examples of general property orders


These could be used for both interim and final orders. Insert both your names in the orders.
  1. That the (name) pay to (name) the sum of $____________ (‘the payment’) on or before the ____________ day of ____________ 20______ (‘the date’).
  2. that in addition to the payment:
a. (name) do all such acts and things and sign all such documents as required to transfer to (name) all of his/her title and interest in the real property situated at and known as (insert full address). This will be at the expense of (name) This being the whole of the land more particularly described in Certificate of Title Volume ____________ Folio ____________ (‘the real property’)
b. (name) indemnifies (name) against all payments and liability associated with the mortgage registered No. ____________ to (specify lender) (‘the mortgage’) and all rates, taxes, and outgoings related to the real property of whatsoever nature and kind.


OR
  1. THAT (name) and/or (name) DOES ALL ACTS AND THINGS NECESSARY TO SELL OUT OF Court the real property situated at and known as (insert full address). This is the whole of the land described in Certificate of Title Volume ____________ Folio ____________ (‘the real property’). The proceeds of sale will be paid in the following manner and priority:
a. In payment of the amount required to discharge the mortgage registered No. ____________ to (specify lender) (‘the mortgage’)
b. In payment of agent’s commission and auction expenses if any due on the sale
c. In payment of legal costs
d. The balance top be divided equally between (name) and (name)
OR
e. The balance to the divided between (name) and (name) as to ____________% to (name) and ____________% to (name).
  1. That pending the payment or completion of the sale;
a. (name) has the sole right to occupy the real property and that during such right of occupation (name) pays all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due
b. The parties hold their respective interests in the real property upon trust
c. Neither party encumber the real property without the agreement in writing of the other party.
  1. That (name) does all necessary acts and things and signs all necessary documents to transfer to (name) at the expense of (name) all of his/her right title and interest in _______________________________ (for example, car, boat, shares)
  2. That (name) is liable for and indemnifies (name) against all payments in respect to _______________________________ (for example, loan, debt).
OR
If you are uncertain of your entitlements, you may ask the court to determine the property division.
In this case, you may seek an order as follows:
  1. That (name) pays to (name) such amount as the court deems appropriate in the circumstances.
  2. That (name) transfers his/her right title and interest in the real property situated at and known as (insert full address). This being the whole of the land described in Certificate of Title Volume ______ Folio ______ (‘the real property’) to (name) in return for such payment as the court deems appropriate in the circumstances.

Examples of general spousal maintenance orders

  1. That (name) pays to (name) for his/her maintenance the sum of $ ____________ per week.
  2. That (name) pays to (name) for his/her maintenance the sum of $ ____________ by way of a lump sum maintenance payment.

Examples of interim property orders

  1. That until the final determination of these proceedings, (name) is allowed to solely use and occupy the ex-matrimonial home and (name) is hereby restrained from entering the property without the agreement of (name).
  2. That until the final determination of these proceedings, (name) is stopped from selling, giving away and dealing with, alienating or disposing of any of the following assets (for example, house, money, redundancy payouts).

These examples are only a guide and can be changed to suit the issues that relate to your case. You should get legal advice on what words like ‘indemnify’ mean.

Victoria Legal Aid

Legal Information Service

Tel: 9269 0120

Country callers: 1800 677 402

Roundtable Dispute Management

MELBOURNE

338 La Trobe St
Melbourne VIC 3000
Tel: 9269 0120
Country callers: 1800 677 402

Offices

MELBOURNE

350 Queen St


Melbourne VIC 3000
Tel: 9269 0120
Country callers: 1800 677 402

Suburban offices

BROADMEADOWS

North western suburbs
Level 1, Building 1
Broadmeadows Station Centre
1100 Pascoe Vale Rd
Broadmeadows VIC 3047
Tel: 9302 8777

DANDENONG

Westernport region

Level 1, 9-15 Pultney St


Dandenong VIC 3175
Tel: 9767 7111

FRANKSTON

Peninsula region
Cnr O’Grady Ave & Dandenong Rd
Frankston VIC 3199
Tel: 9784 5222

RINGWOOD


Outer eastern suburbs
23 Ringwood St
Ringwood VIC 3134
Tel: 9259 5444

SUNSHINE


Western suburbs
1/474 Ballarat Rd
Sunshine VIC 3020
Tel: 9300 5333

Regional offices

BALLARAT


Central Highlands region
Area A, Level 1
75 Victoria St
Ballarat VIC 3350
Tel: 5329 6222
Toll free: 1800 081 719

BENDIGO


Loddon-Campaspe region
424 Hargreaves St
Bendigo VIC 3550
Tel: 5448 2333

Toll free: 1800 254 500

GEELONG

Barwon region


Level 2, 199 Moorabool St
Geelong VIC 3220
Tel: 5226 5666
Toll free: 1800 196 200

HORSHAM


Wimmera region
29 Darlot St
Horsham VIC 3400
Tel: 5381 6000
Toll free: 1800 177 638

MORWELL


Gippsland region
Cnr Chapel & George St
Morwell VIC 3840
Tel: 5134 8055

BAIRNSDALE

Gippsland region (branch office)
101A Main St
Bairnsdale VIC 3875
Tel: 5153 1975

SHEPPARTON

Goulburn region
36-42 High St
Shepparton VIC 3630
Tel: 5823 6200
Toll free: 1800 119 918

WARRNAMBOOL

South Coast region
185 Fairy St
Warrnambool VIC 3280
Tel: 5559 7222
Toll free: 1800 651 022



Publication orders

To download or order our publications in English or other languages go to www.legalaid.vic.gov.au If you need help ordering online please call Victoria Legal Aid on 9269 0223



1   ...   18   19   20   21   22   23   24   25   26


База данных защищена авторским правом ©shkola.of.by 2016
звярнуцца да адміністрацыі

    Галоўная старонка