Sapphire Legal

I have come to realise that one of the greatest difficulties with legal services is affordability, accessibility and reliability. I became a member of FLAST for the simple reason of trying to improve these three factors.   I work predominantly in the areas of Family Law, Conveyancing and Wills & Estates and came to this profession later in life after working for approximately 16 years in the medical industry.  I offer a range of legal services and particularly enjoy helping people who are focused on actually trying to resolve conflict, not add to it.  Having the right mindset and approach to conflict from the very beginning is extremely important as it can avoid protracted litigation and irreparable damage to relationships. 

Admitted as a solicitor in February 2017, I began my work as an employed solicitor for McQiu Lawyers.  In 2021 I decided to open my own sole practice so that I could continue to offer affordable legal services.  Sapphire Legal is a boutique law firm that offers both online and personal legal services.  My focus will always be on trying to help people get on with their lives as quickly as possible by providing them with the services and knowledge they need to try and do exactly that. 

 

 

 

 

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This package includes our Consent Orders - Essentials + Super package plus simple parenting orders (this includes orders about day to day care arrangements and arrangements for special days such as Christmas and school holidays). ixtpm5x4mh4wfuvxyk9jwwtehk3fwtf8.png

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This package includes our Consent Orders - Essentials package plus orders to divide your superannuation (excluding Self-Managed Super Funds) plus all correspondence to the super funds required for your super splitting agreement.

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Drafting of orders for the sale or transfer of up to two (2) properties between separating parties plus simple property orders relating to items of personalty, motor vehicles and other items of limited monetary value.

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a2ryirjsn6iwjur5wirweb85hiy6qjvf.jpgA Simple Will is an easy, short form Will that is ideal for those who have a small estate and where there is negligible risk of any beneficiary being the subject of any bankruptcy or family law claims.  If your testamentary wishes are uncomplicated and you prefer a 'plain English' version of your Will, a Simple Will can be used. 

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Hi Danny,

That applies to international family law matters.  In those cases the appropriate jurisdiction or "forum" is the first issue to address.  In some matters it may be obvious as to which jurisdiction to initiate or conduct proceedings.  In others, less so but a party who has properly initiated proceedings in Australia is deemed to have a prima facie right to have the proceedings determined by an Australian court unless Australia is the clearly inappropriate jurisdiction. 

Hi Riley.

It is clear that you at least meet the first requirement which is that you are ordinarily resident in Qld.  I appreciate that it is the "AND" parts which are the current stumbling blocks - both were ordinarily resident there for a third of the relationship OR substantial contributions had been made there.  

There are no "exemptions" per se however where it can be demonstrated to the court that there would be a serious injustice if the application was not heard in Qld, the court may still be willing to accept your application.

In your supporting affidavit, you would include evidence as to the financial and geographical difficulties you would experience if the matter had to be heard in WA and evidence to show that you have been advised by the WA court that you must file in Qld because it is already dealing with the child proceedings.

If the Respondent consented to the application being heard in Qld, then this problem would also go away.  

If the Qld court dismissed your application, you can file in WA.  

Dear Riley,

It appears that you would because the only documents you are otherwise permitted to file without leave relate specifically to the FVO (if I am to read the thread post correctly).

If you are seeking orders at the next direction's hearing, you can simply ask for leave to be granted.

If you intend to file an Application in a Case, which by the sounds of it you would because you already have proceedings on foot, then you would write in both the section of the document which asks you to list what interim and final orders you seek, an order to the effect that "Leave be granted to the Applicant to file and serve her Application in a Case for Property Orders filed [insert date]"

If you are the Respondent in the main proceedings, then simply substitute the word "Applicant" for "Respondent". 

In the event that you are doing this on the papers as opposed to making an oral request, just prepare a short affidavit that explains why you are filing for property orders.  Outline a brief chronology of the relationship, history of correspondence to the other side which has gone unanswered and a summary of the main assets.

Good luck!

 

Kind Regards,

Gayle Li

 

Dear Riley,

In answer to your first question, the witness statement you provided to the police would not be sufficient.  Although both are treated as written evidence, an affidavit needs to be sworn and witnessed in front of an authorised person i.e. solicitor, JP, Registrar of the Court etc.  In criminal proceedings, a witness's statement is treated as evidence to support an element of an offence and usually only requires the person to sign it.  Where it is to be relied upon in court, the witness is usually "sworn in" first and then their statement is tendered as evidence.  An affidavit is already sworn and essentially sets out the evidence the writer would be prepared to give under oath in court.  Because it is already sworn and witnessed, the court will treat it as evidence.  This is why in interim hearings where matters are determined "on the papers", you do not get the opportunity to cross-examine (that only happens at final hearings).  When writing your affidavit, use dates, times for events and if you refer to any conversations, state the words which were spoken (at least as best you can).  You will annex to your affidavit the FVO that has been made. The affidavit form can be found on the Court's website under forms.

As for what is now happening, it may be that the solicitor has not been provided with instructions to respond.  I'm also a solicitor and it is not uncommon for me to receive correspondence only to have my client tell me "don't do anything".  I'm not sure of the time frames involved but it could also be that if you have not filed for property orders within the requisite time frames, you may need to seek leave of the court to do so. You have 2 years from the date of separation in a de-facto relationship and 12 months after a divorce is granted.  Hence if you are married but not yet divorced, the clock isn't ticking (at least with same urgency).  

With respect to mediation, in this instance I would suggest that you file your proceedings for property.  You can seek interim orders to the effect that:

1. within 48 days of the date of these orders, the parties are to attend a mediation before an appropriately qualified, mutually agreed mediator or Family Dispute Resolution Practitioner.

2. If within seven (7) days of the date of these orders, the parties cannot reach agreement as to identity of the mediator, then the mediator shall be selected by the following process:

a. within seven (7) days of the date of these orders, the Applicant will provide the Respondent with the names of three (3) mediators or family law mediation services; and

b.  within seven (7) days thereafter, the Respondent shall select the mediator or mediation service from that list.

3.  The parties are to equally share the costs of the mediation, including the costs of the mediator or mediation service. 

4.  Each party must attend the mediation in person or by telephone and must make a genuine effort to resolve all of the matters in dispute. 

5.  At least 10 days prior to the mediation, the parties exchange a Balance Sheet, identifying agreed and disputed assets. 

There are other orders you can add to this but the above wording is pretty standard.  Although the court may not be willing to make the orders for a while to come, it at least demonstrates your willingness to try and resolve the dispute as quickly as possible.  Brownie points to you!

Finally, well done on trying to seek alternative ways to resolve the matter.  Sometimes though, a person has no choice.  Unfortunately costs is not something you will be able to avoid.  You can however share the load by partly self-representing and partly engaging legal representation for specific events.  If you were to do this, I would recommend if possible still using the same solicitor because that way all you will need to do along the way is update them on what has happened since the last time you spoke.  For example, you can draft your affidavit and have them look at before filing.  

As for where the proceedings are to be filed, I'm not sure why it must be in WA.  If it is to do where the property is located, you can still file in Qld.  If the court deems it should be filed in WA, they can make orders to that effect.  

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Lancefield & Lancefield (No 2) [2020] FamCAC 312 (22 December 2020).  This case concerned an appeal by the father after the court at first instance made orders for the children to live with the mother.  Prior to this, the father had been the primary carer of the parties 2 children since separation in 2017.  At the time of trial, the children were aged 11 and 9. At first instance, the Court found that the father was coercive and controlling which justified a change in residence. The Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) upheld the father’s appeal in part and remitted the matter to be reheard by a different judge.

The facts of this matter revolve around an incident that occurred on 19 February 2018 when the family iPad was activated and via family sharing, the father was able to access the mother’s internet search history which included “how to tie a hangman’s noose”; “how to disappear without a trace”; “how to completely change your appearance”; and “how to disappear from your husband” ([31]). Upon seeing the mother’s search history, the father contacted the mother’s brother on the same day to raise his concerns and a welfare check by police took place.

The mother had been previously hospitalised in respect of her mental health issues but had “capacity to provide for the children’s physical, educational and general emotional needs”([5]).  In April 2018, the parties entered into a parenting plan which provided for the children to live with the father and spend time with the mother, one weekend per month under supervision. The parties were unable to reach agreement about the children’s long-term arrangements and in June 2018 the mother initiated proceedings in the Federal Circuit Court. Interim orders were made by consent providing that the children live with the father, the parents have equal shared parental responsibility and during school term the children would spend 2 weekends with their mother unsupervised.  Time was also made for the children to stay with their mother during the school holiday periods.

The family iPad was linked to the mother’s iTunes account which she failed to disconnect. “Whatever might have been the situation before separation, the issue in the case was whether, post-separation, the father used the iPad to stalk and monitor the mother. And, if he did, what this said about his attitude towards the mother and his behaviour as a role model to the children” ([52]).

On the facts, the Full Court found that it was not open to the primary judge to conclude that the father had stalked the mother.  “The primary judge should have found that the father retained copies of the material that popped up on 19 February 2018 and that after the mother changed her iTunes account, password and email address in February 2018, there was no evidence that any new information of the mother’s appeared on the iPad.”([65]).

([65]) the effect of the mistaken findings as to Ms H’s evidence is that not only was the primary judge satisfied that the father engaged in coercive and controlling behaviour but his Honour also recognised a pattern of behaviour in the father accessing the mother’s private emails which enabled a finding that the father accessed the mother’s emails and electronic searches during their relationship without permission ([66]).

During interviews, the eldest child stated that he wanted to stay living with his father.  The family report writer “scored both parents equally” however statements from the youngest child to the family report writer “I miss mum” and “we [rarely] see mum” left the family consultant with the ‘impression’ that the child preferred to live with his mother ([82]).

Although the Full Court felt it was open to the primary judge to accept the Family Consultant’s opinion, the Full Court held that after the primary judge decided that the father engaged in coercive and controlling behaviour (also that the father had not promoted the children’s relationship with their mother) he failed to properly consider the weight to be given to the Family Consultants “impression” of the younger child’s views and to treat both children’s views equally

 

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