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Author: Michelle Porcheron Lawyers

Recently, we have seen an increase in clients making an urgent application to the Courts to seek an Order for ...

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The 5 common pitfalls with seeking a PACE Alert

Recently, we have seen an increase in clients making an urgent application to the Courts to seek an Order for their children to be placed on a ‘watch-list’, otherwise known as a ‘PACE alert’.

The purpose of a watch-list or PACE Order is so that your partner may not leave Australia with your children without your consent. This week alone we have had two clients urgently seeking this type of Order.

We seek to address some of the pitfalls we have seen in self-represented litigants attempting to file an urgent application for a PACE Order, as outlined below.

1. Make sure your child has a passport

If you are fearful that your spouse or partner may take your child overseas without your permission, be sure that your child has a passport.

Your child cannot leave the jurisdiction of Australia if no passport has been issued. In seeking a passport for your child, both parents are required to consent to the passport being issued with only very limited exceptions.

However, it is still prudent to arrange an appointment with us to begin your Application in the Federal Circuit Court or Family Law Court for your parenting dispute.

2. Have a reason why your partner is fleeing

The Court requires a factual reason as to why you believe that your partner may be trying to leave the jurisdiction of Australia with your child.

Try to gather as much relevant evidence as you can to inform the Court why you have this fear.

3. Know the difference between a Recovery Order and a PACE Order

A Recovery Order is an Order a person seeks if their partner has already left with their child, whereas a PACE Order is preventing them from leaving.

These two Orders are similar, however the effect of them is vastly different.

4. Ensure that your documentation is completed correctly

There are multiple forms and documents that need to be completed to make an application for a PACE Order. Some of these include:

An Initiating Application;

An Affidavit as to the facts and circumstances;

A Notice of Risk; and

An Affidavit for Non-Filing of a Family Dispute Resolution Certificate.

If you do not understand these documents, it is best that you make an appointment and seek legal advice urgently.

5. Take your Order to the Australian Federal Police!

Once you have received your Court Order from a judge or once you have your Initiating Application filed in the Court, remember to take the correct documents to the Australian Federal Police (AFP).

The purpose of receiving a PACE Order is so that the police may enforce the PACE Order at the Australian border, most commonly at airports.

The Courts and the Police are two distinct bodies and do not share documents unless you take the documents to the Police and hand the documents over. Therefore, it is essential to take your documents to the AFP as soon as possible.

If you have any concerns or fears about requiring a watch-list, come in and see us today.

Posted in: Our blog at 26 July 18

“I would rather meditate than mediate” – 6 ways compulsory mediation can help you in your family law matter

Family Dispute Resolution (FDR) or mediation in family law matters are becoming increasingly conducted and important both in parenting cases and in property settlement. But why?

Compulsory mediation in parenting matters

FDR is compulsory in parenting matters. There are a few exceptions, such as a parent suffering from extreme domestic violence. However, in many parenting cases, the rule of compulsory mediation applies.
Meditation can be hugely beneficial to the parents going through separation or divorce, who need to adapt their family unit to this change of routine and lifestyle. It is not hard to understand why there can be such tension surrounding separation; you have just potentially lost the love of your life and now you fear that you may lose your children too, and to the person who has turned your life upside down. Now, you are being told you have to mediate when you never saw your life taking this turn?
There are, however, a vast amount of benefits to attending mediation both in parenting matters and in property settlement.  The various reasons why there has been such a shift towards mediation include the following:

1. Mediation is cost effective

As we can all guess, litigation can be extremely costly. Mediation seeks to reduce the burden of the financial cost to families already going through a difficult time of their lives.
Here at Michelle Porcheron Lawyers, we understand that parents during separation need to find new accommodation for at least one partner, the cost of running the second household increases, plus the extra running-around expenses of toing and froing between the separate households. We realise that parents can have limited funds to then fight their case. This is one of the reasons why we recommend that parties attend mediation with a qualified, experienced FDR practitioner.

2. Mediation can get you a quicker result

There can also be enormous delays in the family courts, with property matters sometimes taking 2-3 years before a final judgement is made. If you and your partner both seek to know and have your legal rights adhered to, but without taking years to settle your matter, then mediation is the place for you.

3. Your voice is heard!

Your voice will always be heard and appreciated when you walk through the sliding doors of our office here at Mermaid Beach. However, we have seen many-a-case where at the family courts if you have a Directions Hearing it can be over quickly without you feeling as though your voice has been heard. This is because the courts have many cases to see in a day, and deal with the most significant issues of your matter, not every issue. Mediation can allow you to speak and raise every issue you have regarding your matter, as a whole day can be assigned to your case. This can allow for a more holistic approach to settling your matter, which, as abovementioned, can settle your matter earlier than the courts may be able to.

4. Your negotiations are private

In the mediation process, there will be negotiations between the parties throughout the day. These negotiations cannot be brought to the attention of the courts if your matter does not settle on the day of your mediation.

5. You don’t have to speak to your partner if you do not want to

If you are concerned that your partner may be coercing you or attempting to manipulate you, there is an option of a ‘shuttle mediation’.
Shuttle mediation is where you do not necessarily have to see your partner or spouse through the mediation process. This allows a party to have a clear headspace when making tough decisions and not feel as pressured to come to a decision.
But most importantly of all…

6. Mediation helps you to resolve your own issues

Of course, we will guide you through the mediation process, advise you of all options, advise you of the most realistic and beneficial outcomes of your case and fight hard for your interests.
The mediation process can also provide the parties with the sense that they solved their own issue, and not a judge telling them what to do. This can institute a better framework for future issues that could arise between the parties, and thus enabling a more cohesive and friendly approach to settling your later disputes.

HOWEVER

We do recognise that there are some cases that are not appropriate for mediation, where a tough lawyer is needed to win your case. We can also provide you with a resilient lawyer, and who will fight your case to the very end.
Here at Michelle Porcheron Lawyers, we are strong advocates for mediation in the appropriate circumstances.
If you seek any further information surrounding the mediation process and whether it is right for you, come in and see our team with an Accredited Family Law Specialist today. 

Posted in: Our blog at 26 June 18

Did You Say …Defacto Relationships?

What is a de-facto relationship? 

You might think you know but the Court may think something else!  This can be a really complicated issue and some people pretend it didn’t happen.  This may be happening to you.  If you believe you are in a relationship with someone that is more significant than just ‘dating’, you may be in a de-facto relationship.

Basically if you live with another person as a couple (‘on a genuine domestic basis’) for 2 years, you are in a defacto relationship. There are many variations to this that come before the Courts. If you have a child together or buy property (‘substantial contributions’), there is a defacto relationship.  Other considerations include the length of the relationship, whether there was a sexual relationship, whether there was a financial relationship, whether you appeared together in public as a couple, whether you shared your life, whether you cared for children together.  It does not matter if one party was married to someone else, in a defacto relationship with someone else or whether both parties are of the same gender.  A party can’t deny the existence of the relationship if it is established by the Court.  If there is a relationship, there can possibly be a property settlement.

When a de-facto couple separates, one of the parties must apply for a property settlement within 2 years from the date of separation.  You should record the date of separation somewhere or refer it to a specific event as you might need to prove it later.  If neither party applies, the Court can refuse to hear your application.  The Court has refused many such applications.  In a recent case before the Federal Circuit Court of Australia, an out of time application was refused even though the party claimed she would suffer financial hardship.  The Court found that the applicant had no excuse for the delay in proceedings and dismissed the application.

If you end a de-facto relationship, you should get legal advice from a specialist family lawyer as soon as you can.

Posted in: Our blog at 27 April 17

Thunder in Paradise: Major changes to Australian immigration that may change your eligibility for a skilled or work visa

On  19 April 2017 the Temporary Work (Skilled) visa (subclass 457 visa) as we knew it has been abolished and replaced with the completely new work visa system. Although the final changes will be implemented gradually by March 2018, the first phase of a number of intended changes to the approved occupation list has already been implemented by significantly reducing the list of eligible occupations.

As you would be aware, the occupations eligible for visas were listed previously in two schedules.

 The Skilled Occupation list (SOL) was relevant for applicants who needed a visa for:

Independent points-based skilled migration who are NOT nominated by a state or territory government agency. This is for subclass 189.
Family Sponsored points-based skilled visa in subclass 489.
For those who have completed their studies in Australia, Temporary Graduate visa (subclass 485) – Graduate Work stream.

Consolidated Sponsored Occupation List (CSOL)

The CSOL contained the occupations for:

Points-based skilled migration who are nominated by a state or territory government agency under a State Migration Plan.
The Employer Nomination Scheme (ENS), who must have been nominated by an Australian employer to fill a position in an occupation that appears in the CSOL
The Temporary Work (Skilled) visa (subclass 457)
The Training and Research visa (subclass 402)

As of 19 April 2017, the lists have been re-named:

• the Skilled Occupation List (SOL) as the Medium and Long-term Strategic Skills List (MLTSSL); and

• the Consolidated Sponsored Occupation List (CSOL) as the Short-term Skilled Occupation List (STSOL).

 

You must nominate an occupation on the Medium and Long-term Strategic Skills List (MLTSSL) if you are applying for any of the below:

    Skilled Independent visa (subclass 189)

    Skilled Regional (Provisional) visa (subclass 489) - Family nominated

    Temporary Graduate visa (subclass 485) – Graduate Work Stream.

 

You must nominate an occupation on the combined list of eligible skilled occupations if you are applying for any of the below:

    Employer Nominated Scheme (subclass 186) – Direct Entry Stream

    Skilled Nominated visa (subclass 190)

    Skilled Regional (Provisional) visa (subclass 489)  - State or Territory nominated

    Temporary Work (Skilled) visa (subclass 457)

    Training visa (subclass 407)​​​​

From a subclass 457 perspective this includes:

• 216 occupations removed from the list of eligible occupations; and

• caveats added to 59 other occupations.

Caveats contain additional requirements for certain occupations which are mandatory conditions for approval.

The caveat for the occupation of Accountant (ANZSCO 221111) for example excludes its use under the standard subclass 457 programme for any of the following:

• clerical, book keeper and accounting clerk positions;

• positions in businesses that have an annual turnover of less than $1M (AUD);

• positions in businesses that have fewer than five employees.

This caveat is designed to ensure that in the context of this occupation, the subclass 457 programme continues to be used for skill level 1 accountants positions only – that is, positions where the nominee will be involved in planning and providing accounting systems and services relating to the financial dealings of organisations and individuals, and advising on associated record-keeping and compliance requirements.

 

Similarly, a caveat for Baker (ANZSCO 351111) excludes any of the following positions that are:

• related to mass or standardised production, including positions based in a franchise or factory, as opposed to specialist production;

• involve full or partial production of food product for distribution to another location;

• predominantly involve the use of pre-prepared food product from another location.

 

What happens with pending applications?

Existing 457 visas will continue to remain in effect. However, clients who lodged subclass 457 nomination and visa applications prior to the Government’s announcement for occupations now no longer approved for the purposes of the programme, which remain on hand, will be given the opportunity to withdraw their applications and a refund provided.

 

If you are affected by the changes or want to know what your chances are to secure a skilled, temporary or permanent work visa call our office today to arrange a confidential consultation with a senior migration lawyer.

 

Posted in: Our blog at 21 April 17