Monthly Archives: December 2012

Applying for a Divorce

Posted by adam on December 30, 2012
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All Divorce Applications are now filed in the Federal Magistrates Court of Australia (FMCA).

This court has many registries around Australia as well as being fully accessible online. See http://www.fmc.gov.au/

Before filing the application for divorce the parties (applicant and respondent) must have been separated for atleast 12 months.

Either one or both may apply for the divorce and the filing fee is now $577.00. Discounts do apply if you can prove financial hardship such as being on the pension or unemployed etc.

You may file your application in person at a FMCA registry or online (usually if you do not have a registry close by).

The completed application and 2 photocopies must be given or mailed to the court and then stamped with the court seal. The court will keep the original and return the other 2 sealed copies to the applicant. The filing date and  court date is stamped on the document and the court hearing is usually around 6-8 weeks after the filing date.

Most applicants will then have the divorce application served on the respondent wife or husband by a licensed process server. See http://www.citiserv.com.au   for discounted fees and instructions.

When going to court, neither party needs to go to the court hearing if there are no children under the age of 18 years from the marriage or if the application was a joint application. Once the court has found that the separation requirements have been satisfied and a divorce should be granted then a divorce order will be effected and the divorce will be finalised 1 month after this.

At this time both parties are free to remarry.

Using the courts for debt recovery

Posted by adam on December 30, 2012
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In New South Wales all 3 levels of the state courts can be used for debt recovery. These are of course the Local court, District court and Supreme court. The choice of which court to use generally depends on the size of the debt.

Amounts up to $60,000 are generally heard in the Local Court of New South Wales.

Amounts up to $750,000 can be heard by the District Court of New South Wales.

Where as the Supreme Court can hear claims for any amount.

Creditors need to be aware most courts will only allow you to pursue a debt through the courts within six years (statute of limitations) of the debt being incurred. However, if the debtor signs an agreement or makes a part payment during this time (an admittance of debt) then this six year period starts again.

To initiate court action to recover a debt, the creditor must file a statement of claim in the relevant court. A statement of claim can be downloaded from the courts website.For the Local Court of New South Wales see http://www.lawlink.nsw.gov.au/lawlink/spu/ll_ucpr.nsf/pages/ucpr_forms

The court charges a fee to have this filed depending on the amount of the claim and whether the plaintiff ( creditor) is a individual or a corporation. For the Local Court of New South Wales see http://www.localcourt.lawlink.nsw.gov.au/localcourts/fees.html

Once the statement of claim has been filed with the court, the creditor must then have it served on the individual or business by a licensed process server. See http://citiserv.com.au/

Most licensed process servers will then serve the statement of claim on the defendant(s) at the address nominated by the creditor.

Most businesses should be served at their registered office as appears on their ASIC registration.

The process server will then issue you with a ‘affidavit of service’ which is a document explaining when, where, how and on whom the statement of claim was served. This document needs to be filed with the clerk of the court before 28 days has expired from the service date (being the date the defendant was given the document).

The debtor / defendant then has 28 days to act. He / she can enter an appearance which informs the court that they do not dispute the claim and will accept judgment. Secondly, the debtor may file a defence as he or she may dispute the details or amount of the claim. Thirdly, the debtor may make a payment (s) to the creditor and then file a notice of payment with the court which stays any further court proceedings. Lastly, the debtor may do nothing and the creditor may then apply for a default judgment. To do this the creditor must file a ‘affidavit of service’ and a ‘affidavit in support’ with the clerk of the court.

Once the creditor has received their judgment they may take further action to recover the debt. This may include a garnishee order on wages or bank accounts, a writ for execution of property, an examination order etc.

Court Procedures

Posted by adam on December 29, 2012
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The quickest and easiest way to find out about court procedures is to go to the relevant courts website. On these websites each court has forms, fees and vast amounts of information in regard to its correct procedures.

For New South Wales, Lawlink is a government website that can assist you with any queries you may have for all courts within the state. See   www.lawlink.nsw.gov.au  Then click on the relevant court or tribunal for further information.

As an alternative source of court procedures you may use the court practice books. These are available in print and online.

See www.thomsonreuters.com.au, www.lawskool.com.au  to name a few.