Family Matters

Listed below are a selection of the main questions that in our experience, clients initially want to know, before they decide which lawyers they want to contact, let alone not only when they contact us. This content does not constitute advice and you should contact us if you wish to obtain specific advice about your matter. We are always updating our blog post so please feel free to also check out those materials.

When parties decide to split, unfortunately they do not initially turn their mind to their children’s needs instead of their own. We “get it” though – you’re only human and separation is high stress time for many people.

That’s why it is important for parties to realise that children’s arrangement are always about what may be in their “best interests”. It is not always what may best suit the parties, collectively or individually.

There are really three ways for parties to go about co-parenting after separation.

The first way is an informal approach where there is nothing in writing or formal. This can work well for amicable parties who are committed to co-parenting and not wishing to expose their children to what are adult issues.

The second way is by attending Family Dispute Resolution where you may be able to agree to formalising a parenting plan. If you cannot agree, the practitioner who conducts the FDR can issue the parties with a section 60(i) certificate which will enable a party to then commence court proceedings (please note that there are exceptions to this rule such as urgency and allegations of family violence).

Which leads us to the third way which is by making an application to the Family Courts. This can be done by consent where the parties agree (see Consent Orders below) or by a party commencing Court proceedings. Either way, the parties will receive orders (final or interim) which are enforceable by law.

Before you consider obtaining children’s orders, you should also bear in mind:

• The primary consideration for the Court when considering what orders, it should make will always be what is in the children’s “best interests”.
• There is a presumption of equal shared parental responsibility. These responsibilities include decision-making regarding major long terms issues concerning the children such as medical treatment, education, and religious beliefs.
• This presumption can be challenged though in circumstances where abuse, family violence or neglect is involved, which may lead to order for sole parental responsibility in favour of a party.
• When making an order for equal shared parental responsibility, the Court must then consider whether the children should spend equal time with the parties or substantial and significant time with one of their parents, whilst in the primary care of the other.
• What does substantial and significant time mean? This very much depends on the circumstances of the parties but in general, it may an order for overnight time on a fortnightly basis, during school holiday periods and special occasions such a Christmas and birthdays.

When our clients contact us initially and want to discuss dividing property interests with their former partner, one of the main things they want to know is “what am I going to get”? Well, the short answer is it depends on several factors and the weighting a Court may give to those factors. Despite what people may tell you at a BBQ after a few beers, every case is different and the outcome they may have received, is not necessarily what will happen in your case.

To determine a “just & equitable”, there are generally four steps the Court (and practitioners when they are giving you advice) when considering how to resolve a property dispute:

The most common way to finalise children’s matters and property settlements, is by formalising any agreement between parties by using Consent Orders.

In relation to a property settlement, if the parties can reach a just and equitable division of their assets when considering the circumstances of their case, they can then prepare and file an Application for Consent Orders and proposed Minutes of Consent Orders with the Family Courts. Children’s Orders can also be included in the proposed Consent Orders and will be approved if they are in your children’s best interests.

This means you don’t have to “Go to Court” and subject to the Orders being approved, you will then receive sealed Orders from the Court which will legally bind the parties.

The alternate way to finalise a property settlement is by way of a Binding Financial Agreement (Financial Agreement) which can be used in several circumstances in Family Law, regardless of whether you are married or in a domestic relationship.

For example, Financial Agreement can be used when entering into a new relationship to set out each parties’ property interests and what will happen to those interests, if the relationship later breaks down. This is particularly handy if you are looking to protect assets such as a family business, trusts or superannuation.

Financial Agreements can also be used if the parties relationship has broken down and they have separated but do not have a prior Financial Agreement.

Financial Agreements are complicated and lengthy documents which must comply with strict legal requirements according to the Family Law Act; although, they can be made without approval of the Family Courts.  This includes requirements such as that each party to a Financial Agreement must obtain a certificate from a lawyer stating that they have received independent legal advice and that neither party has misled the other in relation to their financial circumstances.

When our clients first contact us, many of them tell us they need a “Divorce”. They think that this will process also includes finalising children’s and/or property matters.

A Divorce Application though is a separate and distinct process. In Australia, if there is no prospect of reconciliation (i.e., It’s over) then if you’ve been separated for more than 12 months, you file a Divorce Application. This can be done jointly or by one party to the marriage. If there are no children under 18, service of the Application has been satisfied or mitigating circumstances, the Divorce Application will usually be granted administratively by the Court (meaning you don’t have to “go to Court”).

If you get a Divorce before you finalise property matters, you then have two years to file an application with the Court. If that time expires, you’ll need to seek leave from the date to hear your case.

The legal fees incurred by our clients almost always depend on several common factors – each parties attitude/approach to the matter (amicable or litigious), the complexity of the matter and whether the matter will need to proceed to Court.

Prior to us commencing to represent you, we take the time to understand your circumstances and provide you with an initial estimate of what we think the costs of your matter may be. We also provide our clients with detailed Disclosure Statements which provide you with a clear picture of the work required and an estimate of the associated costs, step-by-step.

Many firms do not provide this level of detail their client, but this is another reason that sets us apart from other firms. Please note that we do not undertake legally aided matters.

In short, no you don’t need to go to Court if you and your former partner are able to resolve your Family Law matter, either together or with the help of your lawyers. We always encourage our clients to try their very best to be sensible and practicable as in our experience, ongoing and protracted negotiations almost always result in court proceedings.

When parties can reach agreement, they may formalise it by filing an Application for Consent Orders with the Family Courts or enter into a Binding Financial Agreement (for property matters only).

If you do need to go to Court though, we always take the time to guide and educate our clients through this process, which we understand can feel overwhelming and intimidating.

We know that the more comfortable you are, the clearer your thinking and understanding will be during Court proceedings. As we adopt a no-nonsense approach, you can feel assured that we will provide you with strong representation and advocacy.