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Do you need help with Probate?

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Mitchell is a Principal Lawyer of Sharrock Pitman Legal. He is an Accredited Specialist in Business Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:


CALL: (03) 8561 3318

In an ideal world, parenting orders and final court orders would be a fixed endpoint to what is often a long, gruelling process. Unfortunately, sometimes this is not always the case, with problems continuing to arise from parents not abiding by the final orders granted.

So, what action can you take if your former partner is breaching these orders?

The first thing to be aware of is that when someone breaches a court order, this is known as a contravention, and is an offence punishable by the court.  

What is considered a contravention?

Before considering your legal options for dealing with a contravention, it is important to first identify whether the other person has actually contravened the order.

A contravention only occurs when someone has either:

  • Intentionally failed to comply with any of the final orders granted;
  • Makes no reasonable attempt to comply with any of the final orders granted;
  • Intentionally prevents the other parent from complying with any of the final orders granted; or
  • Aids or abets the other parent in contravening any of the final orders granted.

On the other hand, someone is not considered to have contravened an order if:

  • They did not understand the obligations imposed by the order; or
  • The person reasonably believed that the actions constituting the contravention were necessary to protect the health and safety of a person, including the person who contravened the order or the child, with the contravention not lasting any longer than was necessary to protect the health and safety of the person who contravened the order or the child.

What do I do if the Mother/Father breached our court orders?

If you believe there has been a breach, it is best to seek legal advice before deciding how you would like to proceed. While you can file an application with the court, it is a good idea to first try to negotiate a resolution with the help of your lawyer and/or attend Family Dispute Resolution to try and resolve the problem.

This is usually the best course of action as ultimately your goal is to have an arrangement that works without the court’s supervision through the mutual cooperation of you and your former partner. By attempting to resolve these issues outside of the court, it is more likely that you will preserve a working relationship with the other parent so that breaches are less likely to occur in the future.

Applying to the court

In the event that the issue cannot be resolved without the court’s input, you can file an application with the court in relation to the breach.

There are two types of applications which can be made:

1. an application for enforcement (that is, an application for an order requiring the other party to comply with court orders), or

2. an application for contravention (that is, an application for an order to punish the other party for failing to obey an order).

We are able to assist you with either type of application.

What penalties can be issued if the court finds there has been a contravention?

There are a range of penalties the court can impose for breaching a parenting order.

These include:

  • Varying the original orders;
  • Ordering that the contravening parent attend a post separation parenting program;
  • Giving the non-contravening parent “make up time” for the time lost as a result of the breach;
  • Requiring the contravening parent to enter into a bond;
  • Ordering the contravening parent to pay some or all of the other party’s costs of the contravention application;
  • Ordering the contravening parent to pay compensation for any reasonable expenses lost as a result of the breach;
  • Requiring the contravening parent to participate in community service;
  • Ordering the contravening parent to pay a fine; or
  • In exceptional circumstances, ordering the contravening parent to a sentence of imprisonment.

The penalty issued by the court will depend on the circumstances and seriousness of the breach.

How can Sharrock Pitman Legal assist?

If you are experiencing any problems with the parenting orders you have in place, please do not hesitate to contact our Family Law Team, on 1300 205 506 or via email at family@sharrockpitman.com.au for advice and practical assistance.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by one of our lawyers

,

.

Alana Di Paola

For further information contact

Katharine Layne

Katharine is a Senior Associate of Sharrock Pitman Legal.

She is an Accredited Specialist in Family Law (accredited by the Law Institute of Victoria). For further information, contact Katharine on (03) 8561 3319.

More on

Family Law

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be placed on the Supreme Court website for at least 14 days prior to any application.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself does not take long to process the application (maybe another 1 to 2 weeks) and this is done 'on the papers'. This means you do not have to go to a court hearing. There is also a general discretion for the Court to issue a 'Requisition' asking that you provide more information before they process the application and this can delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

  • Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
  • There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
  • There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.
  • You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
  • It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is a Principal Lawyer of Sharrock Pitman Legal. He is an Accredited Specialist in Business Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE: 
(03) 8561 3318

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About Sharrock Pitman Legal

For fifty years Sharrock Pitman Legal has made a significant and long term contribution to meeting the legal needs of business owners and residents in the City of Monash and greater Melbourne area.