We Can Help You Reach a Fair Resolution
You have, or your partner has, commenced property and child-related proceedings in the Family Court already. You may be representing yourself, or you may have a lawyer but are seeking a second opinion.
Regardless of which stage of the court proceedings you find yourself at, we can provide you with guidance, advice and legal representation.
Fairly Divide The Assets of The Relationship
Unlike in other countries, the division of the assets and liabilities of a relationship in Australia is not automatically 50/50.
Family lawyers and the Family Court use a four-stage process for determining the division of assets and liabilities.
The first stage is determining the net asset pool. This means:
- Tallying up all the assets of the relationship – i.e. your assets, your partner’s assets, and jointly owned assets, if any.
- Tallying up all the liabilities of the relationship – i.e. your liabilities, your partner’s liabilities, and joint liabilities and debts, if any..
- Subtracting the total value of all liabilities from the total value of all assets, to determine the value of the net asset pool.
- The second stage involves determining each party’s contributions, specifically: contributions at the commencement of cohabitation, or what are known as initial contributions; commencements during the relationship; and commencements since the date of separation.
GOING TO COURT AS A LAST RESORT
There are three types of contributions:
- Financial contributions. These include things such as lump sum payments (e.g. paying the deposit on a house), and ongoing payments for things like home loan repayments, utility bills and groceries.
- Homemaker and parent contributions. This means raising children under 18, and various homemaker tasks such as cooking, cleaning, washing and gardening.
- Non-financial contributions. This means contributions that are neither financial contributions nor homemaker and parent contributions. Examples include undertaking renovations and improvements to the family home, or working in a spouse’s business for no wages.
Based on each party’s contributions, the Family Court or a family lawyer will determine an appropriate percentage division of the net assets of the relationship.
The third stage involves determining what each person’s needs will be after the end of the relationship. These are commonly referred to as “future needs” factors. “Future needs” factors include things such as: a person’s age and health; a person’s income, earning capacity and financial resources; care of children under 18; and whether a person is receiving child support.
If one party has greater future needs than the other, they will get a percentage adjustment in their favour.
For example, a percentage division of net assets based on the parties’ contributions might be 50/50. However, the wife may then get a 10% adjustment in her favour, because she has greater future needs than the husband. This would result in a final percentage division of net assets of 60/40 in favour of the wife.
The fourth and final stage of this four-stage process is to make sure that the proposed percentage division of net assets is just and equitable. This is because the Family Court has a duty to make property and financial orders that are just and equitable.
We can help you understand what a fair division of net assets looks like in your situation.
The Best Inerests Of Children
The Family Court’s paramount consideration when determining parenting arrangements for children under 18 is the best interests of the child.
The Family Law Act 1975 sets out two primary considerations when determining a child’s best interests, as well as various additional considerations.
The two primary considerations are:
The benefit to the child of having a meaningful relationship with both parents. The need to protect the child from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence. Additional considerations include the following: a child’s views and how much weight should be attached to those views; the extent to which a parent has taken, or failed to take, the opportunity to spend time with the child; the extent to which a parent has fulfilled, or failed to fulfil, their obligations to maintain the child; and the capacity of a parent to provide for a child’s emotional and intellectual needs.
How Your Case Could Settle
GOING TO COURT AS A LAST RESORT
SETTLING A PROPERTY CASE IN THE FAMILY COURT
The fact that you are in the Family Court does not mean that your matter cannot or will not settle. The good news is that the vast majority of cases in the Family Court settle before they ever get to a final hearing or trial. The Family Court also actively encourages the parties to reach a resolution before they reach the trial stage.
In a property case, one very important court event is the Conciliation Conference. This is the Family Court of WA’s one and only attempt to mediate the property dispute between you and your ex-partner. Conciliation Conferences are often successful in helping the parties reach a final agreement.
A Conciliation Conference is essentially a mediation-style conference with a Family Court Registrar or Magistrate, who does their best to encourage the parties to reach an agreement and avoid further court proceedings. It involves sitting in a conference room with your ex-partner and your lawyer (if you have one). The court normally allocates about 2 hours for a Conciliation Conference. If the parties reach an agreement, then the lawyers can draw up your agreement in a document called a Minute of Consent Orders.
The fact that you are in the Family Court does not mean that your matter cannot or will not settle. The good news is that the vast majority of cases in the Family Court settle before they ever get to a final hearing or trial.
You and your ex-partner can reach an agreement at any time during the child-related proceedings. For example, you and your partner might come to an agreement after an interim hearing, or after the release of the Single Expert Witness’s report.
You and your partner can formalize your agreement by filing a Minute of Consent Orders in the Family Court.
5 BENEFITS OF GETTING LEGAL ADVICE EARLY
Seeing a lawyer doesn’t mean you’re about to start World War III. Getting legal advice early can help you make informed decisions about your separation.
Getting legal advice can give you clarity about the law and the legal process, and improve your chances of avoiding a stressful and expensive Family Court battle.
You may not have been through a separation before. You may not know where you stand, where to start or what to do. It is normal to feel overwhelmed by the situation.
Speaking to an experienced family lawyer is often the first step to get clarity about your rights, your options, and what to do next.
If you and your partner are amicable, then an experienced family lawyer can advise you about your options for making an agreement.
If you and your partner are not so amicable, then an experienced family lawyer can advise you about the various options available to you for resolving the matter.
A family lawyer can also help prepare you if you do need to go to court as a last resort.
Sitting down with a lawyer for an initial meeting will give you important information such as:
- What a fair division of the assets of the relationship looks like, how much you should get, and how much your partner should get.
- How parenting arrangements for children under 18 are determined, and how much time you and your partner should be spending with your children.
- The process for making an agreement with your partner legally binding.
Sitting down with a lawyer can also help answer questions you might have, such as:
- How do I divide superannuation interests?
- Who gets to live in the family home after separation?
- If my child gets sick, who makes the decisions regarding medical care?
- What do I have to do if I want to take my child overseas?
- What are my options when it comes to child support?
- How much time should my kids be spending with me and my partner?
- Do we need to sell the family home or can one of us buy the other out?
- Who pays the mortgage?
- If my partner and I cannot reach an agreement, how do we resolve our family law issues?