Frequently Asked Questions

You should find here a list of commonly asked questions and answers pertaining to a particular topic that may interest you. If you do not find the question or answer you are looking for please get in touch with us and we will be happy to try and help you.

Family Law

What is Family Law?

The term includes a range of issues relating to relationships, parenting issues and financial matters. The major areas are:

Marriage and divorce
Property settlements
Parenting issues
Child support
Financial agreements, before, during and after a
Marriage or de facto relationship
Spouse maintenance
De facto and same sex relationships

How do we Divide our Property and Assets?

You can have a property settlement at any time after separation and before you have applied for a divorce.

If you have obtained a divorce you only have 12 months from the date of the divorce to apply to the Family Court for property settlement.

If it is more than one year since the Certificate of Divorce is issued you will either need to bring a claim in the Supreme Court Equity Division, or apply to the Family Court for leave to make a property settlement out of time.

If you are to agree on how the property, other assets and liabilities of the marriage are to be divided you can have that agreement approved by the Family Court by way of Consent Orders.

If you cannot agree on how the property, other assets and liabilities of the marriage are to be divided it will be necessary to apply to the Family Court to make appropriate orders.

The Court will consider all of the background of the marriage and all your joint financial resources such as real estate, investments, interests in companies, family trusts, life insurance and superannuation.

In arriving at a fair and equitable division of property, the Court will consider your contribution to the marriage and family such as the acquisition, conservation and improvement of any property and employment.

The Court will also consider both your present situation and future income as well as any special needs and responsibilities you may have in your life, such as children, elderly parents, ability to work and your health.

When can I apply for a Divorce?

When your marriage has broken down irretrievably and you have been separated for no less than 12 months you can apply to the Court to formally bring your marriage to an end.

The Court will issue a Certificate of Divorce approximately 3 months after the application has been lodged.

What is a de facto relationship?

You are in a de facto relationship if you have lived with your partner, in a genuine domestic relationship, for two years or more. De facto relationships include both opposite and same-sex relationships.

If you have lived with your partner for less than two years, you may be able to apply for a property settlement as a de facto, if there is a child of the relationship or you have made a significant financial contribution to the relationship or assets acquired by one or both of the parties during the relationship.

De facto relationships would be proven with evidence of joint finances, joint holidays, shared meals etc.

What is equal shared parental responsibility?

Equal shared parental responsibility means that both parents are to consult each other prior to making decisions concerning the major issues regarding the child such:

education
health
religion
extra-curricular activities.

In circumstances where a child has been subjected to or exposed to abuse, neglect or family violence, the Court will not apply the presumption of equal shared parental responsibility.

In such cases, the Court may grant sole parental responsibility to one parent, with that parent being responsible for making all decisions concerning the child.

Equal shared parental responsibility does not mean equal time spent with each parent.

Powers of Attorney

What is an Enduring Power of Attorney?

An Enduring Power of Attorney is a legal document which you can use to appoint a person to make decisions about your property or financial affairs if you lose mental capacity such as if you develop dementia, have a stroke or sustain a brain injury in a car accident. Your Attorney can make decisions without consulting you.

Why make an Enduring Power of Attorney?

Because you choose who you want to manage your financial affairs if you lose the mental capacity to do this for yourself. If you do not have an Enduring Power of Attorney and you lose mental capacity, there may be no one with legal authority to manage your financial affairs. This may mean that the Guardianship Tribunal or the Supreme Court will need to appoint a financial manager for you.

What is the difference to a General Power of Attorney?

A General Power of Attorney ceases to have effect after you lose the mental capacity to make financial decisions. An Enduring Power of Attorney will continue even after you lose mental capacity.

Who can appoint an Enduring Power of Attorney?

Anyone over the age of 18 years (not just old and infirm people) can make an Enduring Power of Attorney if they have the mental capacity to understand the nature and effect of the Power of Attorney. You must have mental capacity when signing the document and capable of understanding the nature and effect of the Enduring Power of Attorney.

What decisions can the Attorney make?

The Attorney can make decisions about your property or financial affairs such as operating your bank accounts, paying your bills and selling or buying property (such as your house or shares) on your behalf. An Enduring Power of Attorney cannot be used to make medical or lifestyle decisions for you.

How many Attorneys can I appoint?

You can appoint more than one Attorney to act.

jointly and severally (this means that the Attorney can make decisions together or separately – if together they must agree on all decisions),
severally (this means that any one of the Attorneys can make decisions independently of the other Attorney).

Who should you choose to be an Attorney?

someone over the age of 18 years
someone you trust and who will manage your finances in a responsible way.
someone who has the skills to deal with complex financial arrangements
a family member or a close friend

When does an Enduring Power of Attorney end?

An Enduring Power of Attorney ends when you revoke it, on your death, when you have appointed one Attorney and that Attorney dies or can no longer act as Attorney or when you have appointed two or more Attorneys to act jointly and one of them dies or can no longer act as your Attorney. The Enduring Power of Attorney may also end for more complex legal reasons such as bankruptcy. You should seek legal advice about these matters.

When does an Enduring Power of Attorney start?

The Principal of the Power of Attorney decides whether to have the Power of Attorney operate immediately or only when the Principal is not capable of managing their own financial affairs.

Making it operate immediately does not mean the Principal loses control over their own affairs. It merely enables the Attorneys to act for the Principal at any time. This can be important if, say, the Principal is overseas and needs some financial arrangement completed during their absence.

If the Power of Attorney is only to operate when the Attorney considers that the Principal cannot manage their own financial affairs, then the main issue is determining when that might arise. We consider that the Principal, faced with making that decision, would have to obtain a written medical opinion from the Principal’s treating doctor to verify that the Principal was not capable. It should also be borne in mind that any company or Government authority would also require that sort of evidence to establish that the Principal was not capable of managing their own affairs and that the Attorney could then act on the Principal’s behalf.”

What if I am not physically capable of signing?

If you are competent to make an Enduring Power of Attorney but you are not physically able to sign the form, an eligible signer can sign for you. An eligible signer must be over 18 and cannot be the Enduring Guardian or a witness. You must be present when the eligible signer signs on your behalf.

Can I revoke the appointment?

While you are capable of making your own decisions, you can revoke the appointment of an Enduring Power of Attorney by advising the Attorney in writing and advising any other party that may have a copy of the Enduring Power of Attorney that you have revoked it.

You can change the appointment of Attorney as well as change the functions or directions given to your Attorney. You will need to complete a new form of appointment for this as well.

How do I appoint an Enduring Power of Attorney?

Step 1

You need to discuss the appointment with your chosen Enduring Power of Attorney or Attorneys and make sure they are willing to take on this responsibility.

Step 2

Make an appointment to see us at Court Legal. The form must be witnessed by an eligible witness such as a solicitor with a current practising certificate.

Step 3

Keep the original document in safe custody and keep a copy for yourself, give a copy to your Attorney and if you need, give copies to your bank and accountant doctors and other financial advisors.

*If your attorney needs to use the enduring power of attorney to deal with any real estate you own in NSW, then the document must be registered with the department of Lands.

Probate

What is Probate?

Probate is a document issued by the Supreme Court certifying the Will’s validity and confirming the appointment of an Executor to administer the deceased estate. The Court requires proof that the Executor appointed in the Will is alive, willing and competent to undertake the tasks involved. Also, it is important to verify that the document is the last Will made by the deceased and that there are no objections to that Will.

Why is Probate important?

Without Probate the Executor of the Estate cannot sell, transfer or transmit the assets of the Estate to beneficiaries.

Why does the Executor need to apply for Probate?

Without Probate the Executor does not have the authority to administer the estate.

How does the Executor obtain Probate?

This is where Court Legal can assist you. Firstly the assets of the Estate must be identified. We will liaise with the various asset holders and investment bodies to verify the assets of the Estate. We will obtain market appraisals or valuations of any real estate held by the deceased. Once we have ascertained the extent and the value of the various assets we will prepare the Application for Grant of Probate ready for your execution. Once the Application has been signed it will be filed at the Supreme Court and, subject to any issues raised by the Court, Probate should be granted in around 2 weeks from the date of filing.

What are the responsibly of an Executor of an Estate?

The Executor’s responsibility is to identify the assets and liabilities held by the deceased as at date of death, to obtain a Grant of Probate of the Will and, pursuant to that Grant of Probate, proceed to collect the assets, pay the liabilities and distribute the assets to the beneficiaries as provided for in the Will.

What is Letters of Administration?

Letters of Administration is the Supreme Court’s approval to administer the estate of a person who dies without a Will. In most instances Letters of Administration will be granted to the next of kin of the deceased e.g. a spouse, domestic partner or a child of the deceased. Alternatively if the deceased has left a valid Will but the named Executor is no longer alive, competent, or willing to undertake the responsibilities involved with administering the estate the Court may appoint someone else e.g. a beneficiary to administer the deceased’s Estate according to the Will. This is called “Letters of Administration with the Will annexed.”

What if there is no Will?

When a person dies without a Will (Intestate) there is no Executor appointed to administer the estate so usually the next of kin have to apply for a document called “Letters of Administration.”

Motor Vehicle Accident

What if I am partly or wholly to blame for the accident?

Even if you are partly to blame you are still able to claim damages, but they will be reduced by the percentage assessed as being your share of responsibility for the accident. Your damages may also be reduced if you failed to take sufficient care while travelling as a passenger.

Generally speaking, if you are wholly to blame for the accident, you won’t receive damages. However, if others were injured, their claims will be met by the green-slip insurer of your vehicle. You should notify your green-slip insurer immediately if you think there could be a claim against you as a result of the accident. You must co-operate with your green-slip insurer and you must not admit fault or offer to make any payments to injured parties.

If the accident happened after 1 October 2006, there are special entitlements for children who have been injured if they are to blame. If the accident happened after 1 October 2007, there are special entitlements to those suffering spinal cord injury, moderate to severe brain injury, multiple amputations, severe burns or permanent blindness, regardless of who is to blame.

What must I tell my Solicitor?

You should give your Solicitor as much information as possible including:

The precise date, time and location of the accident.
The names and addresses of people involved in the accident and any witnesses.
The make, registration number and name of the driver of each vehicle involved.
The police station to which the accident was reported and the “event” number of the accident.
Details of any police action you know of against any persons involved in the accident.
The name of the hospital to which you were admitted; the time you spent in hospital; the names and addresses of doctors who treated you; and a description of the injuries you received in the accident and any resulting disabilities you are suffering.
The amount of wages you have lost or you could lose as a result of the accident and the name, address and telephone number of your employer.
Details of any other accidents in which you have been involved.
Copies of hospital, ambulance, doctor, chemist and other medical bills.
Your driver’s licence and Medicare numbers.
Details of any workers compensation, social security or other payments which you have been receiving as a result of the accident.

Your Solicitor needs this information to assist you in completing the personal injury claim form. Unless the claim form is properly completed, the insurance company is not obliged to consider your claim and this will result in delays.

What compensation may I be entitled to?

The amount that you will receive will depend upon the seriousness of your injuries and the loss you have suffered as a result of those injuries.

Compensation may include:

If the accident occurred after 4 October 1999 you will receive compensation for pain and suffering only if it is agreed or assessed that your injuries amount to permanent impairment of greater than 10 per cent of your whole body;
Medical and similar expenses;
Loss of earnings or loss of opportunity to earn;
In serious cases, care, equipment, transport and home modifications.
Except in very severe cases where special entitlements apply, compensation will be paid as a once only lump sum, although the green-slip insurer may have to pay your medical and rehabilitation expenses as incurred before your claim is settled. Compensation covers the past loss and the future anticipated loss.

Except in very severe cases where special entitlements apply, compensation will be paid as a once only lump sum, although the green-slip insurer may have to pay your medical and rehabilitation expenses as incurred before your claim is settled. Compensation covers the past loss and the future anticipated loss.

Do I have to go to court?

No, you don’t. The motor accidents laws require insurers to try to resolve claims, by settlement or otherwise, as quickly as possible.

Once the insurer has admitted liability (either wholly or in part if you were partly to blame for the accident), it must pay your hospital, medical, pharmaceutical and rehabilitation expenses. If your injuries are serious, the insurer is required to provide rehabilitation services and to pay for respite care. If the accident happened after 4 October 1999, the insurer is also required to pay for regular care, if this is needed. Your Solicitor will attempt to settle your claim with the green-slip insurer. However, if settlement is not achieved, proceedings will be started. It is still possible to settle your claim even after proceedings are started.

Most cases should be settled by agreement or assessed by a specially appointed claims assessor. Cases will only be allowed to go to court if a ‘Certificate of Assessment’ or exemption has first been obtained.

What does 'settling out of court' mean?

If you and the green-slip insurer of the driver at fault agree on the amount of compensation you are to receive, your claim will not go to court. If the insurer makes an offer to you to settle the case, consult your Solicitor who will advise whether the offer is fair.

How can Court Legal help me?

Our friendly staff can:

Advise on whether you should make a claim for compensation;
Advise you on the strict time limits which apply;
Advise whether you will be able to prove fault;
Collect the information necessary to make a claim and help you complete and send the claim form;
Negotiate on your behalf with the insurer;
Advise you regarding offers of settlement;
Commence court proceedings on your behalf;
Arrange for witnesses, including expert witnesses such as doctors, to give evidence for you;
Advise you on the details of the medical and claims assessment procedures.

Also go to Motor Vehicle Compensation for other information relating to your motor vehicle accident.

If you have an Motor Vehicle Accident, Call 02 9997 5142 to get more personalised assistance and information regarding your motor vehicle accident – It Won’t Cost You a Thing!

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