Family Matters

Families provide many of us with the greatest highs; but sadly, they can also provide us with the greatest lows, particularly if a separation occurs.

We understand that not only do clients experience significant stress during these periods, but they are also unsure about what to do next and need trusted help. They also do not want to burn through their cash and assets when trying to move on from a relationship breakdown.

We have helped to guide hundreds of clients through these times in their lives with the aim to do so as efficiently and cost-effectively as possible. It is important that our clients know that every case is different and that they are well supported.

We have a proven track record of helping hundreds of clients get on with their lives, away from lawyers and courts, which can cause significant financial and emotional distress. Our Family Lawyers assist individuals and families across all areas of Melbourne and Eastern Suburbs including Ringwood, Croydon and Lilydale.

At Brown & Co Lawyers, our Family Lawyers can offer and guarantee you tough but empathic representation making Brown & Co Lawyers your firm of choice.

If you need our assistance, please feel free to contact us for confidential discussion today.

We advise and represent people across many areas of Family Law including:

 

  • Financial Agreements including prenuptial agreements, cohabitation, and post-separation.
  • Divorce.
  • Property and financial matters resulting from a marriage or de facto relationship breakdown.
  • Spousal maintenance.
  • Child support.
  • Children’s matters including contact and residency.
  • Same-sex relationships.
  • Family Violence matters including Intervention Order proceedings.
  • Separations involving business and trust structures.
  • Enforcement of Orders.

What do I need to know?

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.

Children’s Matters – Best interests

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.

Property Matters – Four steps

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:

 

1. Identify all property (i.e., real property, cash, shares, cars, business interests, etc) and financial resources (trusts, etc) of each party. The parties liabilities (i.e., mortgages, personal loans, credit cards, tax debts, etc) will also need to be established. Once these steps are satisfied, the net value of the property pool will be confirmed. The superannuation asset of the parties will form a separate pool (unless a “global” approach is undertaken) which will generally then be divided equally – although this may be subject step 2 below (i.e., what a party brought into the relationship/marriage).

2. Assess all contributions both financial and non-financial during a relationship or marriage. Financial contributions can include things like assets brought into a relationship by a party, lump sums received and applied during the marriage (such as inheritances and gifts from family members) and who paid down the mortgage.

Non-financial contributions can include things like the role of the primary caregiver to the children of the relationship/marriage and the role of a homemaker.

3. Assess the future needs factors and comparative income of both parties. A classic example of a future needs factor is a mother’s income earning capacity being limited compared to a father, as she is the primary caregiver to young children of a relationship/marriage and will continue to be for the immediate future. An inability of a party to work due to a disability or medical issue is another example which would of course affect their ability to earn an income.

4. After assessing all the above matters the courts must determine if the outcome is just and equitable. What is just and equitable depends on the circumstances of each case. A general example is that sometimes a calculation of percentages or an equal distribution is not necessarily the fairest outcome as one party may not be able to access an asset, such as superannuation, for some years after settlement.

Consent Orders

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.

What’s a Binding Financial Agreement?

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.

Getting a Divorce

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 sperate 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.

How much will my matter cost me?

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.

Do I have to go to Court?

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.

Let’s Work Together