Nicholes Family Lawyers

Alternative Dispute Resolution (“ADR”) is a term referring to different processes where parties try to resolve disputes without resorting to the Court. This includes processes such as mediation, conciliation, arbitration, and, collaborative law.

ADR has a number of benefits when compared to the Courts. They are lower cost and less formal, with a greater focus on what is important to the parties as opposed to legal rights. Rather than a “winner” and a “loser”, parties have greater control over the outcome, meaning they may walk away more satisfied than if recourse was sought through the Courts.

Nicholes Family Lawyers recognise that going to court is a daunting experience for most clients. We therefore strive to settle matters for clients without recourse to Court wherever possible. Binding Financial Agreements (otherwise known as “prenuptial agreements” or “BFAs”) can be entered into by parties to a relationship prior to or at the commencement of a relationship, during the relationship, or following a relationship breakdown and can relate to married couples, de-facto relationships and same sex couples. Binding Financial Agreements can deal with issues such as property settlement in the event of a relationship breakdown and financial support including spousal maintenance.

Following separation, many parents are able to reach agreement between themselves regarding arrangements for the care of their children. Often, non-legally binding agreements, known as Parenting Plans, are satisfactory for many parents. However, if there is a dispute about the post-separation parenting arrangements, parents may need to attend a Family Dispute Resolution service for mediation, where a Parenting Plan can be drafted with the assistance of a third party, or otherwise engage a lawyer to negotiate on their behalf.
If parties cannot resolve their dispute through mediation, or family violence makes Family Dispute Resolution unsuitable, an Application to the Family Court of Australia or the Federal Circuit Court for Parenting Orders may be necessary.
One area that sets Nicholes Family Lawyers apart from other family law firms is their focus, skills and expertise in Hague Convention matters.The Hague Convention is an international treaty to which Australia is a party, that seeks to protect children from international abduction and retention across international borders. The Convention provides a mechanism for seeking the return of children who have been abducted either from Australia, or to Australia from another country (if that county is also party to the Hague Convention).

At Nicholes Family Lawyers we possess experienced advocates who provide guidance and representation in relation to:

•Initial investigations and contact with Child Protection workers
•Protection applications including the removal of children
•Your rights in relation to case plan appeals
•Family Court proceedings
•Child Protection matter involving Koori families
•Variations, extensions, and revocations of Children’s Court Orders
•IVO’s
•Appeal

Where parents are separated or divorced the issue of child custody will naturally arise. Unfortunately the term ‘custody’ is often misunderstood in the family law context. Custody refers to the legal right to care and control of a child – i.e. living with the child. This is to be distinguished from ‘parental responsibility’ which refers to the responsibility to make long term decisions about a child’s life. It is often the case that divorced parents are granted equal shared parental responsibility, meaning they both have an equal say in any major decisions affecting the child, but only one parent is granted custody of the child. The starting point for separating parties is to try and reach some sort of agreement regarding the parenting arrangements they would like to implement. If an agreement is reached they can apply to the Family Court for consent orders formalising this agreement. However, if no agreement can be reached the parties will need to go to court to seek parenting orders. The orders made by the court will deal with both custody of and responsibility for the children. The paramount consideration for the court when making parenting orders will always be the best interests of the child. Our team can assist with pre-court mediation to determine custody issues and can also guide clients through the process of applying for parenting orders.

Child support refers to payments made by one parent to another, to assist in supporting and meeting the expenses of a child. Parents have obligations to provide financial support for their children after separation regardless of who the child lives with and whether the parties and/or the child live in Australia or overseas. There are two ways in which child support can be dealt with, either by way of a Child Support Assessment issued by the Child Support Agency (“the CSA”) or by way of a private agreement. The Child Support Assessment Scheme applies to children who are under the age of eighteen (18) years, and in certain circumstances, for children who are older than eighteen (18) years. In broad terms, child support is assessed having regard to a formula which takes into account the number of nights each of the parents spend with the children, their respective incomes and whether there are other dependent children. It should also be noted that in certain circumstances, parties may decide to enter into private agreements to make arrangements for the support of their children. Child Support Agreements are technical documents which should be drafted with extreme care. In the event you have received a child support assessment which you do not think accurately reflects your circumstances or those of the other party, or are unsure as to the enforceability of the child support agreement created, we are here to provide advice and help navigate you though the complicated issue of child support.

Family violence refers to violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful. It covers a broad range of controlling behaviours, which result in fear, harm, intimidation and emotional deprivation and occurs within a variety of close interpersonal relationships. Family violence can include sexual assaults, physical abuse, intentionally damaging property, constant emotional abuse, withholding financial assistance unreasonably and depriving a family member of their social connections and personal liberty. In the event you or your children are subjected to family violence you are able to contact the police and ask that they attend your property to take out a Safety Notice. This notice will essentially act as an Intervention Order for a short period of time until you are able to obtain an Order from the Court. It should also be noted that the existence of any family violence will be a crucial factor for the courts when deciding on what parenting orders are in the children’s best interests. Nicholes Family Lawyers are well placed to complete an Application for an Intervention Order on your behalf and otherwise provide advice about the impact of child abuse and family violence in family law matters.

A divorce is the legal dissolution of your marriage. You can apply to the Court for a divorce either jointly or on your own Application. A divorce does not finalise issues relating to children and/or property matters, these arrangements must be finalised and documented separately. The team at Nicholes Family Lawyers can help you throughout the divorce process, by:
1. Providing practical advice on how to complete your application;
2. Drafting your Application for Divorce; and/or
3. Representing you at your divorce hearing (should you be required to attend Court).

Family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
Family violence covers a broad range of controlling behaviours, which result in fear, harm, intimidation and emotional deprivation. It occurs within a variety of close interpersonal relationships, such as between spouses, partners, parents and children, siblings, and in other relationships where significant others are not part of the physical household but are part of the family and/or are fulfilling the function of family.
In the event you or your children are subjected to family violence you are able to contact the police and ask that they attend your property to take out a Safety Notice. This notice will in essence act as an Intervention Order for a short period of time until you are able to obtain an Order from the Court.
Alternatively, please do not hesitate to contact Nicholes Family Lawyers 9670 4122. We can make arrangements to complete an Application for an Intervention Order on your behalf and otherwise provide advice about the impact of child abuse and family violence in family law matters.

Following a relationship breakdown, one of the main concerns our clients at Nicholes Family Lawyers is face how they will continue to financially support themselves and their lifestyles.
In situations where our clients cannot adequately support themselves following a relationship breakdown, they may be entitled to receive Spousal Maintenance from their former partner or vice versa. Spousal Maintenance is financial support paid in circumstances where one party has a proven “need” for financial support where they cannot meet their own reasonable expenses from their income or assets, and the other party has the proven “capacity” to provide financial support to that party.
Nicholes Family Lawyers provide advice and representation to clients in relation to all aspects of property division and settlement between parties to a relationship breakdown, including complex commercial matters.
Superannuation is treated as property for the purposes of Family Law and it is capable of division between parties following a relationship breakdown. Nicholes Family Lawyers can provide advice and assist parties with preparing superannuation splitting orders and agreements, so that a portion of one party’s superannuation fund can essentially be “rolled over” into the other party’s fund.

International parental child abduction occurs when one parent or guardian takes their child from its home country without the permission of the other parent or guardian, or without the authorisation of a court.
When you want to move, whether it be for work, a new relationship or even just for a desire for a change of scenery it could lead to a relocation case if you have children. Where the other parent opposes the children’s relocation, the relocating parent must make an Application to the Family Court of Australia to obtain Final Orders permitting the relocation. Relocation cases can be made over a move within Australia but are commonly filed over international moves.
Nicholes Family Lawyers have expertise advising and representing parties in matters involving one parent seeking to relocate from Australia to another country with a child or children. We can also provide assistance in cases where children have been abducted from Australia or brought to Australia following an abduction.
One area that sets Nicholes Family Lawyers apart from other family law firms is their focus, skills and expertise in Hague Convention matters.
The Hague Convention is an international treaty to which Australia is a party that seeks to protect children from international abduction and retention across international borders. Nicholes Family Lawyers has been involved in various high profile international abduction cases, successfully returning abducted children to their parents or other persons concerned with their safety and wellbeing. We have also acted successfully for a number of parents seeking to retain their child/children in Australia from other Hague Convention countries in circumstances where defences can be argued for the non-return of a child/children to a Hague Convention country.

Relocation overseas is becoming a more common scenario for Australian families. Our team at Nicholes Family Lawyers frequently advises ex-pat and international clients who need assistance with Australian family law. In the past we have advised on matters that involved aspects in many jurisdictions.

There are many options for same sex couples starting their own families, including in vitro fertilisation, donor insemination at a clinic, surrogacy or using a home procedure for donor insemination.
Nicholes Family Lawyers can provide advice in relation to the potentially complex legal issues that may arise in relation to starting families, as well as other family issues affecting the LGBTIQA+ community including parenting disputes, property settlements and Binding Financial Agreements.
At Nicholes Family Lawyers we have a specialist LGBTIQA+ group of lawyer’s led by Partner Bec Dahl with a particular focus on and insight into issues affecting LGBTIQA+ communities and the surrounding law.
Senior Associate Catherine Giles runs the LGBTIQA+ family law legal advice clinic at the Fitzroy Legal Service each month.

Mediation is an informal dispute settlement process which is managed by a trained third party, called a mediator. The intention of mediation is to facilitate discussions surrounding issues of dispute, and, where possible, encourage parties to resolve their issues and reach agreement. The discussions that take place during mediation are confidential and cannot be used against either party in litigation unless there are exceptional circumstances. During a mediation, each party will present their point of view on the issue in dispute, and the mediator will work with each party to attempt to work out a settlement. A mediator cannot impose a decision on the parties. However, at the end of the mediation the mediator may present their findings and provide a potential solution to the issue that is acceptable to both parties. As mediation is a cost-effective means of resolving disputes, it should be considered as early as possible after a dispute has arisen. Mediation can be implemented prior to or in conjunction with litigation or court proceedings generally. At Nicholes Family Lawyers, we are committed to using mediation as an effective means to resolve both property and children’s matters without litigation where appropriate. We often refer clients to community-based mediation centres, and also employ trained mediators (including experienced Family Law Barristers) particularly in more complex matters. We also have trained mediators who can act as mediator in family law disputes if required.

When parties separate, often one of the most challenging aspects of the separation is how the assets of the relationship will be divided. For the purpose of Family Law, property that can be divided between parties to a relationship breakdown can include real property (such as the parties former matrimonial home), motor vehicles, companies, businesses, shares, cash savings, trusts, inheritances, furniture, antiques, and other household chattels. Superannuation is also treated as property for the purpose of Family Law. Nicholes Family Lawyers aims to help parties settle property matters without recourse to Court. In the event that our clients can agree to a property settlement outside of Court, we provide advice and assistance with preparing Consent Orders to be filed with the Family Court of Australia, as well as Binding Financial Agreements. These documents formalise the agreements made between the parties. Yet in the event that parties cannot agree to a property settlement and the matter does proceed to Court, we are experienced in providing representation to clients throughout the court process and can provide advice in relation to the relevant considerations of the court when determining the division of property between parties. In coming to a conclusion regarding the division of property the Court will consider the parties assets at the commencement of the relationship, their relative contributions to the property pool throughout the relationship as well as the future needs of each party following separation, and will decide on what is a just and equitable division of property between them.

We have significant experience in advising Schools & Child Care centres in relation to managing Family Law issues. As people working on the front line with families, these institutions can find themselves unfortunately embroiled in Family Law Disputes. As such, Nicholes Family Lawyers have advised schools in relation to issues such as:
1. Interpreting Orders
2. Who has Parental Responsibility for students and about what issues
3. Changeovers at schools
4. Family Violence and Intervention Orders
5. Obligations on Schools and Staff
6. Child Protection

Separation is when you and your partner stop living together in a domestic or marriage-like relationship. This can occur whilst you are still living together or if one party leaves your home. It is possible to live together in the same home and still be separated. However, if this is the case, you will also need to include a sworn statement confirming that you have been separated for at least 12 months, despite continuing to live under the one roof.

There are certain special medical procedures for children which fall outside parental responsibility to consent to the treatment on behalf of a child and require determination by the Court. Medical procedures which have been classified by the court as special medical procedures include treatment for Gender Identity Dysphoria and Disorders of Sexual Development and have also included surgical gender reassignment and heart surgery.
The expression Gender Identity Dysphoria refers to people who experience sufficient discomfort (dysphoria) about the sex or gender they were assigned at birth. Such people include transsexuals and transgender individuals.
There are a variety of intersex conditions in which a child is born with a biological variation of sexual anatomy between the two sexes, male and female. For example, a common DSD known as “CAH” refers to a person with female chromosomes having genitals that appear more masculine. Often the treatment being sought involves gender reassignment or sterilisation, which may mean that Court authorisation is required before treatment can commence.
Section 67ZC of the Family Law Act 1975 provides the Court with a broad welfare jurisdiction to make orders relating to children including intellectually disabled minors. The Court must have regard to the best interests of the child as the paramount consideration when making these orders.

Nicholes Family Lawyers understand the unique nature of the careers of sporting professionals and offer specialist advice and services to protect their assets during a relationship, or to advise upon the breakdown of a relationship. We have staff who have specific industry knowledge regarding a variety of sporting codes.
Elite athletes also often encounter the family law system when they have children, and may want to relocate with their children to further their careers. Nicholes Family Lawyers have significant expertise in relation to parenting matters, including interstate and overseas relocation.
Nicholes Family Lawyers have partnered with various local sporting clubs to assist with the development of their own Child Protection Policies. As advocates with experience in providing guidance in regard to child protection matters, we are in a position to aid in the development of policies specific to the circumstances of particular sporting clubs.

Surrogacy can take many forms. It involves a woman (the surrogate) carrying an embryo to full term on behalf of another person or persons (the intended parent or parents). Upon the birth of the child, parental responsibility for the child may then be transferred to the intended parent or parents.
Surrogacy can be altruistic, that is where there is no payment for service but reimbursement for all reasonable expenses incurred throughout the course of the pregnancy. Altruistic surrogacy is legal in all states of Australia.
Commercial surrogacy, where a surrogate or third party receives a payment for service, is not legal in Victoria.
We have experience in advising clients in relation to their rights, obligations and entitlements in relation to both altruistic and commercial surrogacy arrangements both here in Australia and overseas.

A common concern among separating parents is that their time with their children will be limited. If the parties are able to organise and agree upon parenting arrangements themselves there will be no need for the Court to step in and determine who the children should live with and the level of responsibility each parent has towards the children. Yet where no agreement can be reached the Court will make parenting orders based upon the best interests of the children. Such orders will specify who the children are to live with as well as the time the child will spend with both parents. Under the Family Law Act children have the right to maintain a meaningful relationship with both parents, and the Court will try to accommodate this right as much as possible. However, in certain circumstances it will not be in the best interests of the children to spend significant time with one or even both parents. For instance, where one parent has previously inflicted family violence against the children or other parent it may place the children at risk to allow them to spend time with that parent. The Court will give precedence to the need to protect the children from being subjected to or exposed to physical or psychological harm over their right to maintain a meaningful relationship with both parents. In some situations one parent can be granted visitation rights under conditions such as third party supervision. Nicholes Family Lawyers are experienced in assisting parties to reach agreement as to parenting arrangements as well as applying to the Court for parenting issues. We are also able to provide advice in relation to visitation rights.