Frequently Asked Legal Questions.
When can I get divorced?
If you are married, you can either apply solely or jointly for divorce with your husband or wife in the FEDERAL CIRCUIT COURT OF AUSTRALIA, provided that you can show there has been an irretrievable break down of the marriage and that you have been separated for a period of 12 months.
You can live together or apart during or after the separation, and still be deemed to be ‘separated’. Once a court is satisfied that you have met all of the necessary criteria, a divorce will be granted and become final one month and one day following the divorce hearing.
There are benefits to applying for a Joint Application for Divorce as opposed to a Sole Application for Divorce, including that both parties will not be required to attend the Divorce Hearing. Our team specialise in Family Law and can provide you with legal advice around your Application for Divorce, as it is all to be undertaken on the Commonwealth Courts Portal and without legal representation there may be difficulties with service of the Sole Application for Divorce.
Book a consultation today to have our expert team guide you through the ins and outs of applying for divorce.
When can I apply for a property settlement?
Either a husband, wife or de facto spouse can apply to the FEDERAL CIRCUIT COURT OF AUSTRALIA for a property settlement and/or spousal maintenance at any time after separation.
The time limit for applying for a property settlement in the Court is 12 months following a grant of divorce (two years following separation in the case of de facto relationships). If a husband or wife wishes to apply for a property settlement in circumstances where the parties have been divorced for more than 12 months (more than 2 years in the case of a de facto spouse party) you will need to apply to the Court requesting an extension of time for the Court to deal with your property settlement.
For specific legal advice on your property settlement, get in touch with the Mahony’s team today.
Am I entitled to half?
The short answer is, each case is different.
You may be entitled to 50% of the asset pool split with your husband, wife or de facto partner. However, there are various factors which could increase or decrease what you or your partner are entitled to. These factors might include: whether there are children of the parties; with whom the children are living; contributions of the parties (both financial and non-financial); the length of the marriage or de facto relationship; and future needs. Consideration is also given to whether a party: has earning capacity or not; suffers from health issues; or has anything preventing them from earning an income.
Our advice is specifically tailored to each individual person as each matter will be different, so we would recommend connecting with one of our lawyers to discuss your unique situation.
Who gets the children?
Separation is difficult for everyone involved, including the children. If parties can reach an agreement with respect to parenting matters (including care arrangements for the children and parental responsibility) it is beneficial for the children. The paramount consideration must be what is in the best interests of the child.
If there is conflict between parents regarding who the children will live with, mediation at a community-based centre is appropriate. Mediation can often assist parties to reach a final outcome regarding parenting issues. In the event that parents cannot come to an agreement regarding care arrangements and parental responsibility, parents will be supplied with a certificate confirming that they attempted mediation however it was not successful. Once this certificate is obtained, either parent can apply to the Court for orders in respect of children’s matters.
At Mahony’s, our team is experienced in assisting with mediation as well as helping our clients apply for custody through the Court. Get in touch today to find out more.
I have been locked out of the house - what do I do?
In circumstances where you have been locked out of the house, it is appropriate to seek legal advice. We have a team of experienced lawyers who can help you in this situation.
We would recommend you obtain stable accommodation and, if the children are in your care, that the children are somewhere safe for the time being. Your lawyer can assist you with engaging in negotiation with your former spouse in order to reach a resolution in respect of property settlement matters and your entitlement to the house. In some cases, it may be appropriate to contact the police who can attend the home with you to collect some personal effects in the interim. We can provide support and legal advice on whether it is appropriate to contact the police in this instance.
What is an intervention order?
An Intervention Order may be issued by the police if domestic violence is occurring between parties. This can often restrict one party from coming into contact with the other party and/or the children.
I need protection, how do I apply for an Intervention Order?
If you urgently need protection you should call police on 000 or, in less urgent cases, call for police attendance on 131 444. Police can issue an Interim Intervention Order, which can protect you in the short term. Otherwise, if you don’t require immediate protection and want to apply for an Intervention Order, contact us today for legal advice and to start your application to the Magistrates Court.
An Intervention Order has been issued against me, how does this affect my case?
In circumstances where an Intervention Order has been issued against you, it may prevent you from seeing your children and proceeding to mediation. In these circumstances, you will need to seek assistance from a lawyer who specialises in Family Law to apply for Court Orders to proceed the case. This is an area of law that Mahony’s specialises in, and we encourage you to get in touch to obtain legal advice if you are in this situation.
Is my spouse entitled to superannuation?
Depending on the length of the relationship, it may be that your former spouse is entitled to a portion of your superannuation. In long marriages and de facto relationships, it is likely that there will be a equalisation of the total combined superannuation of the parties. In shorter relationships, this is less likely. Each case is different, and we can provide you with specific advice tailored to your circumstances.
He/ She had nothing before I met them - what do the Courts look for in property division?
Various matters will be taken into account with respect to property division in circumstances where matters proceed to Court or negotiated by the parties. These factors are set out in the Family Law Act and include, for example: the length of the marriage; financial and non-financial contributions at the commencement of the marriage and during the marriage; and the future needs of the parties. In circumstances where there is a lengthy marriage or de facto relationship it is unlikely that initial contributions will be given much weight. In short relationships initial contributions will be given more weight in determining who gets what. You should seek specific legal advice in respect of property settlement matters, as each case will be different.
Why do the children need an Independent Lawyer?
In circumstances where there is a high level of conflict between parents and in circumstances where there are serious safety issues including violence, sexual abuse, neglect, drug/alcohol issues or children showing signs of distress, the Court will often appoint an Independent Children’s' Lawyer to assist the Court with what is in the best interests of the child. Independent Children’s Lawyers are obliged to consider the views of the child, but ultimately provide their own independent perspective about what arrangements or decisions are in the child’s best interests to the Court.
What is medical negligence?
Medical negligence (also referred to as medical malpractice), is a term used when a medical professional, such as a doctor or nurse, causes injury or harm to a patient under their care through an act or a failure to act. This act or failure to act could be in the form of providing an incorrect and harmful treatment to the patient or failing to provide treatment to the patient.
In order to be able to claim medical negligence, this act or failure to act must be below the acceptable standard of practice in the Australian medical community and harm must be reasonably foreseeable to the medical professional. An example of medical negligence would be if a doctor had the training to know that a prescribed treatment would cause harm to the patient but administered the treatment anyway.
If you have experienced medical negligence, get in touch with a lawyer as soon as possible to discuss your claim. Medical negligence claims can be tricky, but we have an experienced team who specialise in this area of law and can provide you with clear and honest legal advice about your claim.
How do I know if I can make a medical negligence claim? Where do I start?
Medical negligence is a very difficult area of the law and is often fought strongly by doctors, hospitals and allied health professionals. At Mahony’s Lawyers, we recommend that you seek urgent legal advice if you have experienced medical negligence. We have a team of specialist solicitors who practice in medical negligence and can provide you with straightforward and upfront legal advice regarding your claim.
There are some things you can do to make your first appointment with your lawyer easier:
- You should obtain a copy of any relevant medical notes.
- You should prepare a timeline of all the critical appointments and dates both before and after you were injured. We will go through this with you at your first appointment as we assess your claim.
If a medical specialist or allied health professional was negligent, it is important to identify whether this negligence was the cause of your current injury or illness. Sometimes a negligent act or omission is unrelated to the symptoms that you are currently experiencing, which can affect the success of your claim. At Mahony’s Lawyers, we specialise in providing early, upfront advice about your prospects of success and offer a ‘no win no fee’ option for eligible claims.
Lastly, keep in mind that time limits apply; you have three years from the date of the negligence to bring your claim to court. To make sure that your claim has the best chance of succeeding in court, talk to one of our experienced lawyers today about your medical negligence case.
Motor Vehicle Accident.
Are there time limits involved in lodging and injury claim from a motor vehicle accident?
Yes, there are time limits involved when lodging an injury claim. If you have been involved in a motor vehicle or bicycle accident, or if you have been injured as a pedestrian, you may be entitled to compensation.
Keep in mind the following time limits that apply to claims of this nature:
- The law stipulates that you have six months from the date of your injury to lodge a claim with the CTP Insurer involved.
- Once you have lodged your claim, settlement must occur within three years of the date of your injury.
- If no settlement has been reached with the insurer, proceedings must be lodged with the court within that three-year period.
- If you are injured as a minor (i.e under 18 years of age) the limitation period for issuing proceedings in the Court is three years from the date of your 18th birthday.
If the above time limits are missed this can make it very difficult to claim compensation.
If you have been involved in an accident of this nature, we urge you to seek legal advice as soon as possible to ensure that you meet the above claim timeframes.
I have received an offer from the insurer involved with my case, what should I do?
If you are dealing with an insurance company directly for injuries that you have sustained from a personal injury or motor vehicle accident matter, you will most likely receive a minimal settlement. Your best approach is to get the right legal representation so that you are fully compensated for your injury. You may be entitled to medical expenses and loss of income, as well as compensation for your injury. Get in touch with Mahony’s Lawyers soon to talk to one of our solicitors.
I am unable to return to work through sickness or injury, what should I do?
Being unable to work and losing your income can be devastating for many individuals and their families. If you have been involved in an accident or fallen ill, we’re here to help.
You may be able eligible to access additional benefits through your superannuation fund. Many people are unaware that they may be covered for loss of income claims through their super fund. Often these benefits can be paid in addition to other forms of insurance such as work or motor vehicle injury compensation.
Mahony’s Lawyers can assist in reviewing your superannuation entitlements and advise if you are entitled to receive a payment through your superannuation cover.
Wills and Estates.
Where should my original Will be kept?
A Will is an extremely important document that should be safeguarded.
If you wish to keep your Original Will in your own possession, keep it in a safe and secure place where it will not be vulnerable to possible damage or weathering. It is important that the Original Will is not marked in any way and nothing is attached to the documents. If there are staple marks or it appears pages have been added or removed, the validity of the Will may be disputed as it may appear that the Will has been altered.
It is also a very good idea to let someone know about the location of your Original Will. You are under no legal obligation to tell anyone about the existence of your Original Will or what it says. However, hiding a Will can lead to all sorts of issues in the future and causes your loved ones unnecessary stress. At the very least, it is recommended you let your Executor, or the person who carries out the directions of your Will, know where the document is located.
To set our client’s minds at ease, Mahony’s Lawyers offer a personalised service to clients who prepare their Will and other important documents with us. At no additional cost, you may choose to use our Safe Custody Service at no additional cost, where we can hold these original documents for you in a safe and secure environment in our Safe Custody Room.
What does it mean if I am an executor of a Will?
When a person makes a Will, they will normally list someone close to them and who they trust to become the Executor of a Will. At times there can be more than one Executor and you may be required to act jointly. As an Executor of a Will it is your responsibility to distribute the Estate to the Beneficiaries as per the terms of the Will. In basic terms you will be responsible for gathering (“calling in”) the assets of the estate, paying debts, and distributing the estate to the nominated beneficiaries.
During this process it may be necessary to obtain a Grant of Probate from the Supreme Court. This will depend on the size of the estate, assets involved and terms of the Will.
The role of an Executor can be overwhelming. As a client of Mahony’s, we will work with you so that you understand your role and obligations and assist you through what is often a complex process.
What if I need treatment when my work injury expenses come to an end?
As an injured worker, you are entitled to income maintenance (weekly payments) for two years from the date of your first entitlement. Your income maintenance can be reduced or discontinued for various reasons during the two years, such as if you cease to be incapacitated for work or if you fully return to work.
If you have been receiving weekly payments for your work injury under the Return to Work Act, your entitlement to payment of medical expenses ceases 12 months after your weekly payments. However, if you and your doctor think that you will need surgery after the period, you are entitled to medical expenses and you can make an Application for pre-approval of future surgery.
If you are a “seriously injured worker”, meaning that you have been assessed as having at least a 30% (or more) Whole Personal Impairment, you will be entitled to weekly payments at 80% of your average weekly earnings until retirement age and reasonable medical expenses for life. Another exception to the time restriction imposed upon medical expenses is if you need a therapeutic appliance to maintain your capacity.
I injured myself at work - can I sue my boss?
Most Employers pay premiums to Return to Work SA which means that they are insured against Workers Compensation claims. This means that if you make a claim, your Employer is able to support you in the event of a work injury. Lodging a Workers Compensation claim does not mean that you are suing your Employer.
Generally speaking, the Return to Work Act prevents you from suing your Employer if you are entitled to benefits under the Act. An exception to this is if you have been declared as being seriously injured (having a 30% Whole Person Impairment). If you have been declared as being a seriously injured worker, you are entitled to pursue a common law action against your Employer for economic loss. Should you decide you want to do pursue an action against your Employer, this would mean that you would not have any further entitlements to weekly payments or redemptions.
What is permanent impairment and what does it mean?
If you have any work injury which results in the loss, loss of use, damage or malfunction of a part of your body this could be considered a “permanent impairment”. Once your work injury has stabilised (reached maximum medical improvement) and all medical treatment has been completed, an impairment assessment can be undertaken by an Accredited Impairment Assessor. After you have been assessed by an Accredited Impairment Assessor, you will be advised of the degree of Whole Person Impairment (WPI) you suffer. This degree of WPI is assessed in accordance with Assessment Guidelines and determines if you have any further entitlements aside from income maintenance and medical expenses. If you are assessed as having the equivalent to 5% WPI or more, you may be entitled to a lump sum payment under the Return to Work Act. Contact us if you think you may suffer from a permanent impairment and are seeking to undergo a permanent impairment assessment.
I will never get back to work - will I be compensated for my loss of income?
The Return to Work Act focuses on assistance for workers to recover and return to work; however, if you are unable to return to work you may have the following options:
- If you are an injured worker and have been assessed by an Accredited Impairment Assessor as suffering from a Whole Person Impairment between 5% - 29%, you may be entitled to a lump sum payment for economic and non-economic loss. Your entitlement to this lump sum payment would take into consideration the level of your permanent impairment, your age and the hours worked at the time of your injury. You would also be entitled to income maintenance (weekly payments) for two years from the date of your first entitlement.
- There may also be the option of considering a redemption (or payout) which, if agreed to, would mean that you are not entitled to any further income support.
- If you are determined as having a Whole Person Impairment of at least 30% you would be entitled to income maintenance and medical expenses until the age of retirement.
Contact us today to find out what kind of compensation you might be entitled to.
What if I injured myself before the Return to Work Act - am I affected?
Most Workers Compensation claims should be lodged within six months of your work injury arising. However, in certain circumstances, you may be able to make a claim after this period.
- If you injured yourself prior to the Return to Work Act coming into effect (1 July 2015) and did not make a WorkCover Claim, your entitlements may be affected by the transitional arrangements.
- If you were injured prior to the Act coming into effect and made a claim, you are entitled to income support until 1 July 2017 (two years after the Act came into effect). This period of time includes payment of your [reasonable] medical expenses and for a further 12 months after your income maintenance has ceased.
- If you were injured prior to 1 July 2015 and determined as having a Whole Person Impairment of at least 30% you would be entitled to income maintenance until the age of retirement and reasonable medical expenses for life.
Contact us today to find out what kind of compensation you might be entitled to.
I think I am a seriously injured worker - what can I do?
To be deemed a seriously injured worker, you need to have been assessed by an Accredited Impairment Assessor as suffering from a permanent Whole Person Impairment of at least 30%. It is quite difficult for a worker to be assessed as having a Whole Person Impairment of at least 30% unless they have a significant injury or multiple serious injuries from the same calendar year. Physical and psychological injuries are not able to be combined to meet the 30% threshold. Contact us if you have not yet been assessed by an Accredited Impairment Assessor but believe you are suffering from a significant and permanent impairment.
If deemed a seriously injured worker, under the Return to Work Act you would be entitled to ongoing weekly payments of 80% of your average weekly earnings until retirement age or until the age of 65 and reasonable medical expenses for life. This system also allows a worker to accept a redemption (or payout) to finalise your entitlement to income support. You may also be entitled to a lump sum payment for non-economic loss (but not economic loss) with the amount payable being determined according to the degree of permanent impairment you are suffering.
If you are a seriously injured worker, you may decide that you want to make a common law claim against your Employer. Should you decide you want to pursue an action against your Employer this would mean that you would not have any further entitlements to weekly payments or redemptions.
Are there time limits involved in lodging an application for unfair dismissal?
If you feel you have been unfairly dismissed from your employment it is important you seek urgent legal advice as strict time limits apply.
If you have grounds for unfair dismissal, an application must be lodged with the Fair Work Commission WITHIN 21 days of the date of dismissal.
Get in touch with our team to discuss your options and ensure that your claim meets any required deadlines.