Family Law

Relationship breakdowns can be traumatic, with a range of emotional, practical and legal issues to consider. We are experienced Accredited Family Law Specialists, with a range of dispute resolution skills including negotiation, round table conferences, mediation and collaborative practice. Wherever possible, we will help you resolve your family law matter without the added stress and expense of court proceedings. If, however, litigation is unavoidable in order to protect your rights, our experienced advocates will provide strong representation in court.

Applying for a Divorce

A divorce application is filed with the Federal Circuit and Family Court of Australia. This is usually a straightforward administrative process. The court requires the parties to have been separated for 12 months and if you have children under the age of 18 years, the court will need to be satisfied that proper arrangements are in place for their care.

Sometimes there may be complexities to navigate and we can assist with these, for example, if you have difficulties in serving the divorce application on your spouse, if the separation is not mutually agreed, or where you have been technically separated but are living under one roof.

Property Settlements

We can advise on your rights and entitlements in relation to property matters and help you finalise the division of your assets after separating with your spouse or de facto partner. Most property matters can be finalised without the intervention of the court. It is important to note, however, that time limitations apply for bringing property proceedings (or filing orders), namely within 12 months of divorce or within 2 years of the date of separation for de facto couples.

In summary, the law provides that the Court will make property orders if it is just and equitable to do so. All the parties’ assets, liabilities and financial resources are considered in the asset pool, whether these are held jointly or individually. Superannuation is also included.

The Court has regard to the financial and non-financial contributions, as well as home making and parenting contributions. The Court will also assess each party’s needs, having regard to a range of factors such as their age, health, income, parenting responsibilities and earning capacity.

If you and your ex-partner can negotiate a property settlement, the agreement may be formalised by consent orders filed with the court or in a legally binding Financial Agreement. We can explain the different options so you can make an informed decision that is most appropriate for your circumstances.

Parenting Matters

The law requires that the welfare and best interests of children are paramount. It is always best if the parties can agree to arrangements for parenting after separating as this minimises the stress and impact on children. When making arrangements, parties will need to consider the concept of ‘shared parental responsibility’ and its implications. We can help with this process and demystify some of the misconceptions (particularly in relation to shared or equal time).

There are a number of ways that parties can agree on parenting matters. Arrangements can remain informal, flexible and without any documentation if that works for you and your family. Otherwise, a Parenting Plan is a convenient and informal method of articulating arrangements in writing which can help make things clearer and more predictable.

A Parenting Plan can cover day to day issues such as time spent with each parent, schooling, extracurricular activities, medical and child support. The plan can be amended at any time, with agreement. One difficulty with a parenting plan, however, is that it is not legally enforceable (although it can be considered by the court if it is written, dated and signed by both parties, and made without any threats or duress). Parenting Plans are not appropriate where parties are unable to communicate or there are fears for safety and allegations of family violence.

Parenting Orders are approved by the court and are enforceable. If the parties agree, the Parenting Agreement reached can be incorporated into Consent Orders that are made by the court.

If agreement is not possible, we can assist you with the pre-litigation procedures and refer you to appropriate family dispute resolution providers – either private providers or community-based services. If further action is required, we can guide you through the litigation process.

Child Support

When working out child support payments, the Child Support Agency (CSA) looks at:

both parents’ income subject to a ‘self-support amount’ which is deducted if you are supporting other children
whether you have other children
the costs of raising children
how much time you spend with the children (i.e., regular care, shared care, primary care or above primary care)

The CSA has access to your tax records and uses these to help calculate child support. Child support estimators are available online.

You can reach your own agreement rather than using the child support assessment. You can record your agreement in a Limited Agreement or a Binding Child Support Agreement. Different provisions apply to each. You need the assistance of a lawyer to make a Binding Child Support Agreement which cannot be changed except by agreement or by a Court. We can help you to negotiate and draft child support agreements.

Spousal Maintenance

One party to a marriage or de facto relationship can seek maintenance from the other if they are in a financial position where they are unable to support themselves, for example if they are aged, have a mental or physical condition which impedes their ability to obtain gainful employment, or they have the care of children under 18.

The court must consider both the applicant party’s inability to support themselves adequately and the other party’s ‘reasonable ability’ to pay the maintenance. Spousal maintenance orders can be sought on an urgent, interim or final basis from the court.

Strict time limitations apply for seeking spousal maintenance – orders must be applied for within 12 months of divorce or within 2 years of the date of separation for de facto couples.

The applicant spouse bears the onus of proof in such applications, and it is therefore essential to obtain clear legal advice if you are considering making such an application.

Financial Agreements

Preventative measures to protect assets are increasingly important in both de facto and married relationships. We can advise on and draft financial agreements prior to and during a relationship which can help eliminate uncertainty and litigation should the relationship subsequently break down.

Financial Agreements (also known as ‘Prenuptial Agreements’ or ‘Binding Financial Agreements’) allow parties to a marriage (or proposed marriage) and to a de facto relationship (or proposed relationship) to determine their rights, responsibilities and the division of assets in the event of the breakdown of the relationship.

These agreements can be entered before, during or after a marriage or de facto relationship and as such, can provide an alternative to seeking orders from the Court on the breakdown of a relationship. There are strict requirements for Financial Agreements to be binding and they are not appropriate for all parties. Independent legal advice must be sought by the parties proposing to enter into such arrangements.

Using Mediation to Resolve your Family Law Matter

We can help you resolve your family law matter through mediation, rather than going to court. This can be an effective way of narrowing if not resolving all issues. Mediation can take place with or without lawyers present. It is a confidential process that avoids the expense and acrimony of litigation. It provides a forum where parties can work together with the assistance of a neutral mediator to explore options for resolution.

Collaborative Practice

Collaborative practice is a process that helps people in conflict resolve their differences privately, in a dignified and respectful way, without going to court.

When you commit to a collaborative process you agree to maintain open communication and share information. You are represented by your collaborative lawyer who works with you to tailor the process to address your specific needs and issues. Other professionals, including accountants, financial advisors, counsellors and children’s experts can be brought into the process to provide specific advice where the circumstances require.

Collaborative practice assists you to maintain control of the process, keeps your affairs private and maintains an atmosphere of fair play and respect even in areas where there may be disagreement. You can create win/win solutions for everyone and maintain civil relationships for the benefit of you and your children. Once an agreement has been reached the lawyers work together to document the agreement into a legally binding contract.

Litigation in Family Law

Although most family law matters resolve without a Court hearing, it may be necessary to commence legal proceedings. Court documents must be relevant, accurate, strategic and properly drafted. Your advocate in Court needs to be well prepared, fearless and persuasive in pursuit of your rights. Your lawyer requires tenacity and persistence to uncover the true extent of assets and the real issues in parenting matters. You may need additional experts such as a barrister, forensic accountant, valuer or psychologist.

Maryanne Ofner and her team are highly experienced in all aspects of family law litigation and can advise and counsel you about what is realistically attainable in your circumstances. We will prepare the necessary documents and evidence required to support your case and source appropriate barristers if necessary to ensure that your rights are safeguarded. We act swiftly if circumstances require urgent attention such as when there is the threatened abduction of a child or the possibility of dissipation of assets by one party.

If you need assistance, contact one of our lawyers at [email protected] or call 02 9929 8777 for expert legal advice.