Areas of Practice
No matter how complex or straightforward your situation, we can offer you clear legal advice and support on a wide range of Family Law matters.
We can help you obtain a Divorce, although it is a relatively simple process which you can complete yourself.
You can apply for a Divorce at any time provided you have been separated for at least 12 months. The Court does not need to know about the reasons for the breakdown of the marriage, and there is no requirement for the Court to find that one party is at fault.
If there are children under the age of 18, the Court must be satisfied that there are proper arrangements in place for them before making a Divorce Order. We can assist you to negotiate a Parenting Plan or Parenting Order setting out what those arrangements will be.
If you have assets and liabilities to divide, this does not need to be resolved prior to the making of a Divorce Order. However, time limits do apply once a Divorce Order has been made should you need to commence Court proceedings for property settlement, so you should consult with a Solicitor regarding time limits prior to taking any steps.
We are happy to help if you have any questions regarding the Divorce Application process, time limits and any other issues arising from a separation such as parenting matters and property settlement.
When lawyers talk of a ‘Property Settlement’ they refer to the process of dividing or re-allocating assets, liabilities and financial resources of a relationship. This applies to married, de facto and same sex couples.
A common misunderstanding is that assets are divided equally. While a 50/50 division may be the starting point in other jurisdictions, this is not the case in Australia. A party’s entitlement to a property settlement depends upon a number of factors, all of which can have varying importance from case to case:
The value of the property pool;
The contributions which each party has made at the outset, as well as during the relationship and post separation;
The nature of the contributions made by each party (such as financial, non-financial, parenting, homemaker);
The future needs of both parties (depending on factors such as age, health, income earning capacity and financial dependents);
The duration of the relationship.
Not only is there a careful examination of these issues, but consideration is also given to what a just and equitable outcome may be in the particular circumstances of the case.
We have considerable experience and expertise in negotiating property settlements including disputes involving complex company or trust arrangements.
We encourage agreements to be promptly reached and adopt a constructive and practical approach to help achieve this. When agreements are reached, it is very important to finalise them carefully and in the appropriate manner to ensure a full and final settlement. In most cases, a Consent Order is appropriate, but in other circumstances, a Binding Financial Agreement may become necessary.
While we see Court as a last resort and will use our skills to guide you through a negotiated outcome, sometimes Court may be the only option. In that instance, we are well-equipped to provide you with the expertise you will need.
Navigating your way through a property settlement can be challenging and complicated at times. It is crucial that you promptly seek specialist expertise regarding your rights, responsibilities and likely entitlements to ensure your interests are advanced and your rights are protected at any early stage.
If you have separated or are intending to separate, you should consult with a Solicitor regarding your entitlements and any time limits which can vary depending on your circumstances. Delayed advice and inaction may result in your rights and interests becoming compromised, lost or adversely affected.
CHILDREN and parenting
A separation can often be the hardest on the children of the relationship, particularly in circumstances where parents can no longer communicate, or if the children are being used as pawns in an attempt to hurt the other parent.
Children have the right to know and be cared for by both parents, and to spend time and communicate with both parents and other important people in their lives on a regular basis. What is in their best interests must be at the forefront of any decision making.
We can assist you to negotiate all of the important issues concerning the welfare of your children, such as where they will live and how much time they will spend with the other parent and any significant others (such as grandparents), what arrangements will be made for special occasions like birthdays, Christmas and during school holidays, and what arrangements will be made regarding issues such as communication, changeovers, health, exchanging information and how to resolve any future disagreements.
Where agreements are be reached, you may wish to document then by way of a Parenting Plan or more formally by way of Parenting Order. In most instances, a Parenting Order will be preferred as it is legally binding and enforceable which is not the case for a Parenting Plan. We will guide you through the pros and cons of all of your options to best achieve what is right for you in your particular circumstances.
One way to minimise the risk of a dispute relating to financial matters on separation is by having a Financial Agreement. It can set out what will happen to your property, liabilities, superannuation and financial resources if you separate.
A ‘pre-nuptial agreement’ is often the term used to describe a Financial Agreement made before a marriage or de facto relationship. A Financial Agreement (or commonly known as a ‘cohabitation agreement’) can be made during a relationship, as well as after a relationship breakdown (sometimes referred to as a ‘separation agreement’).
There are a number of strict legal requirements for the drafting of these types of Agreements and they can often be complex in nature, particularly if made at the outset or during a relationship. When these documents are prepared correctly and thorough independent legal advice is provided to each of the parties as is required, they prove to be an effective mechanism of protecting assets and creating certainty in the event of a separation.
The consequences for failing to meet the stringent legal requirements and relevant considerations may be extremely serious. Such failings could result in the Agreement not being binding or being set aside by the Court. It is vital that you obtain advice from a specialist with the requisite expertise and experience to act for you in these matters, and also to consider any alternatives which may be a sounder option, such as Consent Orders.
DOMESTIC and family VIOLENCE
Domestic and family violence is not only physical abuse. The definition of what may constitute domestic violence is far-reaching and encompasses the many forms it may take, such as verbal, emotional, psychological, financial abuse, and/or behaviour that is threatening, coercive or in any other way controls or dominates another person to fear for their safety or that of someone else.
Domestic violence can be difficult to talk about. However, there is a wealth of support within the community to support those suffering in order to get the protection and help required, so you need not feel alone. You can talk to us in complete confidence. We can assist you to prepare an application for a domestic violence order and ultimately obtain a protection order to safeguard you and your children. Other associates of yours may also be covered by the order in circumstances. You may also wish to seek assistance from the Police, particularly in circumstances of urgency where your safety or that of others may be at risk.
To grant an application and make a protection order, the Court must be satisfied of three issues, namely:
That a relevant relationship exists (which can take different forms);
That domestic violence has occurred; and
That it is either necessary or desirable for the order to be made.
Care should be taken when preparing your application and supporting evidence to ensure you have the best prospects of being successful in obtaining an order.
If you already have a protection order in place, we can also advise you about your options regarding varying or extending an existing order.
Alternatively, if you have been served with an application and/or a Temporary Protection Order we recommend you seek legal advice regarding your options which may involve defending/opposing the application, agreeing to an order without admissions, or negotiating undertakings.
The law imposes a responsibility on a person to provide financial assistance to their spouse or former de facto partner if that person cannot adequately support themselves. This is not to be confused with Child Support which is a wholly different obligation.
In such matters, the Court considers whether or not a person is able meet their own reasonable needs from their own income or assets and whether the other party has the capacity to pay. If the relevant criteria is met (which may vary particularly if there are circumstances of urgency), maintenance may be successfully negotiated or ordered by the Court.
Maintenance can be paid as a lump sum, ongoing regular payments for a certain period of time or in some circumstances, by way of transfer of an asset/s.
We strongly recommend that you obtain prompt legal advice in relation to this issue, particularly if you are experiencing financial hardship as a result of the breakdown of a relationship. Time limits do apply to matters of this nature which can vary depending on the circumstances of the case. If you do not apply within the relevant time limits, you will need permission of a Court to apply. The Court’s permission is not always granted.
Parents have a legal obligation to financially support their children, even if parents separate or if a parent is not spending as much time with their children as they like (if any).
More often than not, child support is handled by the Child Support Agency rather than the Court which has a limited role in certain circumstances. That being the case, we can still assist you in understanding your obligations and negotiating private child support agreements (both limited and binding child support agreements) as well as assisting you in your dealing with the CSA and the Court such as appeals from the Social Security Appeals Tribunal to review and/or object to child support assessments and decisions, departure applications and stay orders.
Lucy Wood Family Law © 2017. All rights reserved.
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