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shane mcclure lawyer & mediator - faqs

Do you have any questions?
Here are our most frequently asked questions.

Table of Contents

General questions

Shane McClure has a wealth of experience in all aspects of mediation, commercial litigation, criminal law and family law, including:

● Divorce applications
● Binding financial agreements
● Child support and maintenance
● Collaborative law
● Family violence intervention orders and protection applications
● Family dispute resolution mediation
● International child abduction
● Parenting matters
● Property settlement
● Same – sex relationships
● Spousal maintenance
● Variations to existing court orders

Your first meeting with Shane McClure is a chance to get to know each other. You can discuss with Shane what you want to achieve, and he can help review all your options. You may be able to resolve your query in this initial conference.

Ultimately, you will walk away with insight into your options and possible outcomes, whilst also gaining a general understanding of the law and court process for your query.

Shane is available for conferences by video, including Skype, Zoom, Facetime, and in-person, at a number of locations in Melbourne and greater Victoria.

It’s important to get advice as soon as possible, so if you would like help with your breakup or something else that requires action, book a quick chat with Shane on the phone first to work out your next step.

Shane does not currently take on legal aid matters.

Victoria Legal Aid has recently tightened the eligibility requirements for funding in many matters. To be considered as eligible for Legal Aid funding you will usually need to be receiving a Centrelink benefit and be facing a likely term of imprisonment if found guilty of the offence charged.  Eligibility for Legal Aid funding is ultimately assessed on a case by case basis.

criminal law

If you are arrested, you are obligated to answer questions about your identity including your name, address and date of birth only. But you have a right to refuse to answer any other questions.

No-one can gain access to your criminal record, unless you have given consent, or it is at the request of police or an authorised public body.

Shane can help you if you are called to attend a Police interview, or are arrested. He can:
● Advise you of your rights.
● Explain any charges against you.
● Explain your options.
● Advise on any possible penalties.
● Attend a police interview with you.
● Discuss the allegations with the investigating officers to arrange practical bail conditions and gain a greater understanding of any charges against you.
● Make a bail application for you in court where you are bail-refused by the Police or a Bail Justice.
● Represent you at court.

The presumption of innocence is integral in supporting the fairness of our criminal justice system. A person suspected or accused of a criminal offence is presumed innocent, unless and until, they are convicted of committing the offence. 

This means, if you are being investigated by the Police, you must always remember you are only suspected of the crime.

Only in some circumstances can police compel you to answer questions. In the court case  , the High Court of Australia said: “A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority.”

Could we put the full citation at the bottom of the page? Just messes with the readability of the text.

Duress and necessity are very similar defences. However, duress involves a response to the actions of other people, while necessity involves a response to circumstances that requires someone to choose the lesser of two evils.

If someone you know has been arrested and taken into custody it is essential that you call us as soon as possible so that we can advise them as to their rights, how to conduct themselves in a recorded interview, and, if required, prepare a bail application. Shane is available to advise on urgent matters, to engage him call 1800 549 817.

The law in relation to driving offences is complex and the courts have a very wide discretion to suspend your licence or disqualify you from obtaining a licence for a period of time. For more information about licence cancellations and driving offence penalties, be sure to speak with Shane McClure.

If you have been found guilty of an offence, or you pleaded guilty but feel the sentence received was excessive, you may appeal the decision to a higher court. You can also appeal if it appears that a technical error has occurred.

Generally, the time period for making an appeal is 28 days and this time period is strictly kept – although this may differ from court to court, and sometimes exceptions are made.

Before you lodge an appeal, be sure to speak with Shane McClure for prompt and honest advice.

family law

Absolutely! Shane is always happy to help formalise agreements that have been reached privately. However, he can only act on behalf of one of the parties, i.e. you both cannot be his direct client.

No matter where you are across the globe, if your matter relates to Victorian law, or Australian family law, Shane can assist you. Shane has a number of clients who live or work internationally and is pleased to be able to offer a service that accommodates these clients.

Many people will contact Shane before they choose to separate. He can help to give you a good understanding of what to expect if you do decide to separate and can assist you to form a plan of action.

As an Officer of the Supreme Court of Victoria, Shane is committed to client confidentiality, so if you need to get legal advice before making the decision to separate, you will be provided advice with discretion and understanding.

A person is in a de facto relationship with another person if they are in a relationship as a couple living together on a “genuine domestic basis” but are not legally married to their partner.

You do not need to be living together to be considered as being in a de facto relationship. This is only one of the factors that will be considered. The other factors that will be considered include:

1. The duration of the relationship;

2. The nature and extent of the couple’s common residence;

3. whether a sexual relationship existed;

4. The degree of financial dependence or interdependence between the couple;

5. The ownership, use and acquisition of property;

6. The degree of mutual commitment to a shared life;

7. The care and support of children; and

8. The reputation and public aspects of the relationship.

You can legally still be in a de facto relationship even if one or both of you are legally married to or in a de facto relationship with other people.

However, regardless of whether you are technically in a de facto relationship, the Court only has the power to make orders for the division of property or spousal maintenance if it is satisfied that:

1. You have been in a de facto relationship for at least two years; or

2. There is a child of your relationship; or

3. That one of you has made substantial contributions (financial, non-financial or as a homemaker or parent) and a failure to make an order would result in a serious injustice; or

4. Your relationship has been registered under State or Territory legislation.

 

To be eligible to file an Application for Divorce, the Federal Circuit Court of Australia must be satisfied that your relationship has irretrievably broken down and that there is no prospect of reconciliation.

Before filing an Application for Divorce you must have separated from your spouse for at least 12 months prior to filing an Application for Divorce. It is possible to live together under the one roof and still be considered to be separated. In this circumstance you may be required to produce evidence from neighbours, friends and family confirming that you were separated whilst living together under the one roof.

The court has the power to grant a divorce if either party:

1. Regards Australia as home;

2. Intends to live in Australia;

3. Is an Australian citizen; or

4. Ordinarily lives in Australia and has been living in Australia for 12 months prior to the filing of an Application for Divorce.

If you have children from the marriage, the court must be satisfied that appropriate arrangements have been made for their care.

 

The living arrangements for children after separation are based on who the child “lives with” and who the child “spends time with”. The children may “live with” both parties on an equal basis or they might “live with” one parent and “spend time” with the other parent.

Irrespective of which parent the children live with or spend time with, it is important to note that there is still a presumption of “equal parental responsibility”, which relates to the long term decisions about the children’s welfare, such as decisions about education, religion, medical matters.

If the arrangements for the children post-separation cannot be agreed between the parties, the first step is to arrange family dispute resolution mediation.

mediation

Mediation is a process where the mediator supports individuals to resolve conflict and settle differences via a co-operative process. The process is completely voluntary, and agreements are not imposed on them as can occur when legal matters go to court.

Participants sign an agreement to mediate and work via a mediator to prepare and sign a written agreement.

The mediation process can be used in family law matters, commercial disputes and workplace issues.

Mediation is much faster than the process of litigation and empowers individuals to make critical decisions without the weight of the Courts and expensive legal representation.

The role of the mediator is to manage the process in a complete and balanced way, impartial to both parties. The mediator will identify issues, facilitate the discussion and help to negotiate outcomes that work for both parties. The process is respectful and designed to encourage an equal say, where possible.

As an Australian lawyer practicing mediation, Shane offers very competitive mediation rates, as well as fixed-fee options. The rates will depend upon the type of and complexity of the dispute, for either a half day mediation (being up to 4 hours) or a full day mediation (being up to 8 hours). You will know what you will be paying, up front and with no surprises.

For any significant preparation time (including any preliminary conference) or any time in excess of either a half day or a full day, will be charged at an hourly rate.

For any extra fees- these will be fixed, disclosed and agreed up front.

Full fees can be advised upon enquiry and will be included in the Mediation Agreement for signing before any work is undertaken. Fees can be shared between the parties and are payable in full prior to the commencement of mediation.

Mediation is a type of family dispute resolution. Family dispute resolution is the name used in the Family Law Act for services such as mediation and conciliation that help separating couples resolve their parenting and property disputes

Mediation can give a separating couple the opportunity to agree about property or parenting issues with less financial cost and emotional stress than going to court. It is desirable to resolve matters as quickly as possible to minimize the impact of ongoing conflict upon the children.

For parenting issues, mediation is now a compulsory step before parties can file an application with the court to resolve your dispute.

Mediation can be considered at any time throughout the negotiation of your dispute. Whether you are in the early stages of your negotiations, or have already commenced court proceedings, the benefits of mediation as a dispute resolution method should be considered.

The earlier you consider mediation, the more likely you are to succeed in resolving your dispute at a reduced financial cost. By resolving your dispute quickly, you are also likely to reduce the emotional impact on everyone involved, including your children. If you and your ex-partner can’t agree on some issues through discussions together, or through negotiations through your lawyers, mediation should be considered as the next step.

In most circumstances, children are not involved in the mediation. If the issues are relating to parenting, your children may speak to a family report writer or psychologist, and their professional opinions may provide some guidance during the mediation.

Although mediations are preferred in person, mediations can also be held via phone or video technology, such as Skype or Zoom.

The following are some key points that will help you prepare for mediation.

● Think about the main issues and what is important to you, and try not to focus on the minor issues.
● Be open-minded and approach the process in a positive and conciliatory way.
● Provide Shane with as much information as possible to ensure he understands your issues and difficulties.
● Be as open as possible in sharing information to enable meaningful discussions to take place.
● Do not be adversarial, aggressive or confrontational.
● Educate yourself on your financial situation and legal entitlements.
● Brainstorm some likely scenarios and their consequences both emotionally and financially.
● Think about some compromises you are willing to make and be clear on your objectives.
● Block out the whole day for mediation. If you need to collect children or have commitments, ensure you make other arrangements.
● Complete any documentation provided by Shane.

If you reach an agreement on the day of mediation, you can sign an agreement which documents the terms of the settlement in broad terms. Your lawyer will then use this document to prepare the legal documents necessary – a parenting plan, a consent order or a financial agreement – to make your agreement legally binding.

If you cannot come to an agreement during mediation, you can continue to negotiate settlement through your lawyers.

Yes. After every mediation on parenting issues, Shane can issue a Section 60I Certificate. If you can’t agree in mediation, this certificate tells the court that you have attempted to resolve your dispute prior to commencing court proceedings. Having a certificate can be a requirement if you decide to take your dispute to court.

mortgage guarantee advice

If your bank has asked you to get a solicitor’s certificate, this means that a solicitor needs to review the loan documents, the guarantee and any other associated documents and explain them to you before you sign.

A solicitor’s certificate can vary from bank to bank and other financial institutions but basically the solicitor must certify that:

1. That you fully understand and agree with the terms and conditions of the loan agreements and security that is being offered for the loan;

2. That you understand that if there is a default, the bank can sell up the property that they have offered as security for the loan to recover the unpaid monies plus default interest and any other costs of the default (i.e., taking possession and selling the property etc.)

3. That you are aware of the repayments that you are required to pay, that you have the income to service these repayments, and that you have obtained appropriate advice from your accountant and/or financial advisors.

4. If there is a guarantee, you understand that if there is a default under the loan, whatever security they have provided under their guarantee may be sold by the bank to recoup the amount owing under the loan plus any default interest and other costs that they incur in the process.

A solicitor’s certificate is usually a lengthy and complex legal agreement.

It can be difficult for clients to understand solicitors cannot just witness documents or signatures. Whenever lawyers witness a legal document, there is a presumption that they are providing advice in relation to the document that is being witnessed.

It is for this reason that I will not agree to witness a solicitor’s certificate without providing formal advice and charging a fee.

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