Divorce Advice Letter - Essay Example

Name Course Lecturer Date Divorce Advice Letter Dear Ms. Karcashian I hope this letter finds you well, recently you requested for advice concerning a divorce application in the family court. As you have described in the letter you have been separated from your husband for 14 months. You husband moved out of your matrimonial home in June 2015 and promised never to return. In an expression of his and showed unwillingness to take care of the children in the future, he talked of how the children were now your responsibility. The facts outlined show your marriage has been unhappy for long lengths of time. Your husband’s conduct and attitude illustrate that there is little chance of a happy union between the two of you. After carefully going through the facts, I conclude that a court will grant you application for divorce as you have irreconcilable differences with your husband. In addition, the court will also be able to grant an application for restraining orders as your husband has made a veiled threat to harm you. Many of the facts of this situationsuggest that you marriage has broken down irretrievably. I have noted that Chris’ behavior in the early days of your marriage suggest all was not well. In a previous visit, you told us your husband was unwilling to letyou visit your family and friends. In addition, he made you beg for money as he kept tight controls over the family’s money. About a year ago, your husband abandoned you and flew to Europe to pursue fame and fortune in European cheese factories. Upon his return, you tried to reconcile with him. Consequently, you welcomed him into the matrimonial bed once gain. However, the returned Chris was worse that even before the separation. Chris was lazy and constantly moody. He was also frequently drunk and had started using drugs; he would also take money from your purse frequently. As a consequence of these problems, you asked Chris to move to the guest house on 12th March 2016. Chris was still unhappy and would not allow anyone to clean his room. He also refused to participate in caring for the kids although he saw them daily. During the period he was living in the guest house you never attended social events together. He also missed your 21st birthday party as your relationship had broken down completely. Consequently, on 31st March 2016 he moved out of your matrimonial home and settled into an apartment at 6B Camembert Avenue, Lennox Head. Unfortunately, your separation and struggles with your husband are affecting the kids as Colby appears unsettled and displays behavioral problems at school. Chedda on the other hand makes excuses to make sure he does not go over to his father’s house. He says his dad scares him and rubs his hair with Camembert instead of Shampoo. Colby on the other hand returns with strange bruises, and won’t talk for hours after visits with his father. Both kids seem to be uncomfortable with their alternate weekend stays with their father. Kris has also refused to contribute money towards the upkeep of the kids. In addition, Chris has become a security threat to you since you started a new relationship. He appears at your place of work and has demanded to know the name of your boyfriend. He has also made threatening and scary calls to your workmate and boss. Recently, he called your boss and spreads rumors about your moralityand honesty. He also rings your mobile phone at all hours of the night and has been following you when you leave the house. He recently issued a veiled threat during a phone call where he said that you should watch out as a single shot could cause a lot of damage. You now live in fear as his current state of mind and drug abuse habits make you believe he is capable of doing anything. It is possible to initiate and win an application for divorce in these circumstances. You need to make your application to the Federal Circuit Court of Australia which deals with matter of divorce under the Family Law Act 1975 (cth), Part VI1. The Act defines a divorce as an irretrievable breakdown in matrimonial relations with no possibility of resuming cohabitation2. For court to grant a divorce, it must be satisfied that you and your spouse have lived apart or separately for more than 12 months3. You also have to prove to the court that there is no possibility of resuming marriage life. It would be easy to prove to the court that your relationship with Chris has broken down irretrievably4. However, your application would have to be delayed until March 12 2017. On this date, you will be able to fulfill the requirement for a separation of at least 12 months5. Your first separation last year would not be considered as you resumed cohabitation several months later. For the purpose of divorce proceedings, courts will recognize your separation date as 12th March 2016. Once you meet the requirements for the granting of a divorce application, you can make your application at the Commonwealth Courts Portal6. You have to pay fee of $865 or $290 if you are eligible for fees reduction7. The first step in completing the application is filling the divorce form. The divorce application form requires the signature of a solicitor or Justice of the Peace to be valid. After filling your form you can submit it or send it together with any other affidavits (the originals and two copies) to the Family Law Courts8. The application must be accompanied by an electronic copy of your marriage certificate. You can also file the application online at the Family Law Court website. The application will only be accepted after the requisite application fee has been paid. The courts will set a hearing date after receiving your application. The court keeps all the original documents and sends you back the two copies with the Court’s seal, and hearing date stamped. The court also attaches copies of the Marriage, Families and Separation brochures. At this point you need to serve the documents to your husband through a process server9. You are required to serve the sealed copies of the divorce application and the brochure to your husband. You may serve the process documents in person or by post. However, you are not allowed to serve the process document yourself. You must provide proof that the process documents were served to your husband by submitting an Affidavit of service prepared by the person who submitted the divorce application to your husband10. An acknowledgement of service form signed by your husband may also serve the same purpose. You will need to appear in court for the divorce hearing. The law requires that a parent who has children below the age of 18 to appear in court for the divorce hearing. Identify yourself as the divorce applicant and explain to the court why you need a divorce11.The court has discretion to grant your application, adjourn your case or dismiss your application. The court may also delay the grant of divorce until proper arrangements are made to cater for the children. Once a court is a satisfied with the grounds for the divorce and that proper arrangements for the children have been made it will grant you divorce application12. The court makes a divorce order which becomes a final order one month after the initial divorce order. You can also apply for restraining orders to prevent your husband from assaulting or harassing you. Protection order can be obtained from the Family Courts or the Federal Magistrates Court13. Family courts provide protection in terms of an injunction preventing your husband from acting in a given way. However, Family Court orders provide limited protection in contrast to Apprehended Violence Orders obtained from the Federal Magistrate Court. In New South Wales, Apprehended Violence Orders provide a flexible mechanism to protect individuals from various forms of harassment including physical abuse, psychological abuse, stalking and sexual abuse. In your case, you can make an application for a restraining order that will order you husband to stay away from you, your house and your workplace. Many people will respect a restraining order as it is a crime to violate the orders set out in the Apprehended Violence Order (AVO). An AVO may take the form ofan Apprehended Domestic Violence Order or an Apprehended Personal Violence Order. In your case, the Domestic Violence Order will apply as you were in a domestic relationship with your estranged husband. It would be easy for you to obtain an AVO as you can show evidence of Chris stalkingand harassing you. The testimony of your friends and the harassing phone calls are convincing evidence that Chris may harm you14. You can apply personally or through a solicitor for the restraining order against Chris. If you apply for an AVO in person you must convince the court that there is reason to fear for you safety15. The court may issue with a temporary AVO if you are able to convince the magistrate you need protection immediately16. However, you must remember the any residence/contact order made by the Family Court will take priority over the AVO. Contact orders may allow Chris to come near your house to see the kids or to bring them back home17.if you are able to show that the kid's safety at threat if Chris retains custody, you can use the Apprehend Violence Order to gain sole custody of the children. The children’s unwillingness to spend time with their father and the emotional trauma that follows their visit with their father is evidence of harm. In addition, one of the kids comes back with marks after visits with his father. Under, section 18 of Crimes (Domestic and Personal Violence) Act 2007 (cth) you may apply for you children’s protection under the AVO. However, you must present enough evidence for the court to allow you to deny your children the right to see their father18. You may also ask the court to order Chris to provide financial support as the Family Law Act 1975 (cth) states that both parent have parenting responsibility which do not change despite of changes in the nature of relationship between the parents19. To sum up, based on the facts you have provided, I believe a court would grant you an application for divorce provided the application is no made earlier than 12 March 2017. At this point, you will have satisfied the 12 month separation period necessary for a divorce to be granted. You must make sure that you and Chris do not resume cohabitation in the 12 months period before application for the divorce. The facts show that it would be easy to convince the court that your marriage has broken down irrevocably. Your estranged husband’s behavior and his unwillingness to take care of your children show that reconciliation is not possible. However, courts will also take into consideration arrangements for taking care of the children. In addition, you can be able to obtain an AVO that will prevent Chris from stalking and harassing you at the Federal Magistrate Court. I hope my advice is helpful, and would be willing to discuss the matter further with you. Feel free to call our offices or book an appointment so we can meet and discuss the matter discussed in this letter. Very truly yours,  Bibliography A. Articles\Books\Reports Phillip A. Swain, Simon Rice, In the Shadow of the Law: The Legal Context of Social Work Practice (Federation Press, 2009) Women's Legal Services NSW Staff, Women and Family Law (Women's Legal Services NSW, 2014) B. Internet Sources Australian Law Review Commission, Other Aspects of a Common Interpretative Framework: Grounds for obtaining a protection order Legal Aid NSW, Manage Your Own Divorce - Applying for a divorce C. Legislation Crimes (Domestic and Personal Violence) Act 2007 (cth), s. 22 Family Law Act 1975 (cth), Part VI Read More