Property

Financial Settlements

Once you have separated from your partner you will require legal advice in relation to the process of dividing your assets.

We have a number of different approaches to assisting clients’ to resolve disputes regarding property matters following a separation, and in reaching agreement. These include mediation (with an independent third party who can assist you by facilitating discussions to reach agreement), collaborative law (where the parties and their lawyers agree to a series of “four way meetings” and sign a contract that they will not litigate), by direct negotiation (between lawyers by way of correspondence, or direct discussions via a conference), or by way of litigation through the Court process.

Our advice will depend on the particular circumstances of your case and will be tailored by your specific needs and that of your family. We take a commercial and common sense approach to such matters, to ensure that your desired outcome is achieved.

We have access to professionals within our firm practising in other areas which regularly impact on family law matters and which include commercial, trust, taxation, bankruptcy, Wills and Estates, and financial planning. This breadth of service is not available in other boutique firms.

The Court’s approach to dividing matrimonial assets Under the Family Law Act 1975 (Cth) the Court has a wide discretion to make property orders that are just and equitable between the parties and in the circumstances of each case. In exercising that discretion, the Court adopts a four (4) step process:

  • The first task for a Trial Judge when determining an appropriate division of property is to identify the property of the parties. For the purposes of this assessment superannuation is deemed to be property and such interests can be divided between parties. The Family Court values all assets as at the date of trial less any arm’s length liabilities.
  • The second step is for the Court to examine the various contributions made by each party to the acquisition, conservation or improvement of matrimonial property. In making their assessment the Trial Judge will recognise both financial and non-financial contributions, including those contributions made by a homemaker or parent.
  • The third step undertaken by the Court is to consider both parties respective future needs, considering your respective financial positions, earning capacities, whether either party has the care of a child and any other factors or circumstances which should be taken into account
  • Finally, the Court will consider whether the proposed adjustment of assets is just and equitable as between the parties.

Our team can assist you by providing detailed advices as to your property settlement entitlements and will assist you in attempting to negotiate a commercial outcome. In the event that your matter cannot be resolved by agreement, or by mediation or collaborative law, our specialist lawyers will assist you in the litigation process.

Parenting

One of the most pressing matters faced by separating parties, relates to the ongoing care of the children of a relationship.

If you are not able to resolve parenting arrangements directly with your partner, or through dispute resolution, you are able to apply to the Court to seek assistance in determining the appropriate arrangements to put in place both on an interim, and final basis for your family.

If the Court is required to assist you in determining the time that your children should spend with you and your partner, it is necessary for you to have attempted dispute resolution (through mediation or counselling) to resolve your dispute, and to lodge a certificate to this effect with the court as part of any Court application, unless there are urgent circumstances which exclude this process.

Once your matter is before the Court, the focus of the Trial Judge will be on determining the arrangements that are in your child’s best interests. In doing so, the Court must consider the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

The Court will also consider various other factors, including the physical environment you are able to provide for the child, the relationship between the parents and any other significant person, your respective parenting skills, the current arrangements in place for the children and the wishes of the children (bearing in mind their age and level of maturity.) As part of the court process, a psychologist will usually be appointed to prepare a family welfare report and to provide recommendations as to the most appropriate arrangement for your family moving forward.

The Court may also appoint an Independent Children’s Lawyer to act on behalf of the children, in circumstances where there is continued disagreement or high conflict between parents to a dispute and where there are significant issues concerning the children generally.

Our team can advise you as to the best approach to take in dealing with children’s issues, and in negotiating arrangements for your time with the children moving forward. We will also provide detailed advice as to the types of arrangements that are appropriate in your particular circumstances, and for your family. We can recommend a range of professionals (such as counsellors, psychologists and/or mediators) should you wish to seek additional assistance to resolve your matter without recourse to litigation.

We are otherwise experienced in complex litigation regarding children, and can guide you through this process to achieve a best outcome for you and for your family.

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