Family Law

FAMILY LAW – Relationship breakdowns & your options

Relationship breakdowns can be traumatic. It is vital that you obtain early reliable advice. We assist you to move forward with your life in a sympathetic and sensible fashion. We are experienced Accredited Family Law Specialists with a range of dispute resolution skills including negotiation, round table conferences, mediation and collaborative practice. We are rigorous litigators in the Courts if alternative dispute mechanisms are unsuitable.

LITIGATION AND ALTERNATIVES

Maryanne Ofner and her team assist clients to resolve issues surrounding relationship breakdown without litigation if possible by using mediation, counselling and other collaborative options. This minimises expense and reduces acrimony.

At times, a firm litigated approach is required. Maryanne and her team are able to effectively prepare the evidence required and source appropriate barristers if necessary to ensure that your rights are safeguarded. We can act swiftly should circumstances arise that need urgent action such as when there is a dissipation of assets or a threatened abduction of a child.

Each case is unique and is considered individually. What is appropriate for one set of circumstances may not suit another. Maryanne and her team will identify the options for you so you can proceed in the most cost effective, expedient fashion.

MARRIAGE, PRENUPS, DIVORCE AND SEPARATION

Preventative measures are increasingly important. Maryanne is able to advise on and draft financial agreements prior to and during the marriage which have the effect of eliminating uncertainty and litigation should the relationship break down.

Our firm can help you with the following areas of family law:-

Parenting

The welfare and best interests of children are the paramount concerns of the law when parties have separated. It is always best if the parties can agree to amicable arrangements for parenting post-separation 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 are able to help clients 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 come to agreement about parenting matters. Arrangements can remain informal, flexible and without any documentation, if that works for you all. Otherwise a parenting plan is a convenient and informal method of articulating arrangements in writing. It can cover day to day issues (such as time spent, schooling, extracurricular, medical and child support) and can help make parenting arrangements clearer and more predictable. It 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). It is 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 can be incorporated into consent orders that are made by the court. If agreement is not possible, we are able to assist you with the pre-litigation procedures and refer you to appropriate family dispute resolution providers being either private providers or community based services. If further intervention is required we provide the litigation tools you require.

Property Settlements

If you have separated from your spouse, we are able to provide you with sound advice about your rights and entitlements in relation to property matters which can involve an evaluation of the law, and a consideration of discretionary factors.

The law, in summary provides that the Court will make orders if it is just an equitable to do so.
The Court has regard to financial and non-financial contributions, as well as home making and parenting contributions.
Apart from contributions the Court will also assess needs, having regard to a range of factors including the parties age, health, level of income, parenting responsibilities and earning capacity and other factors particularly relevant to your situation.

Agreements can be formalised by consent orders filed with the Family Court or in a Binding Financial Agreement. We are able to assist you with the option that is most efficient and relevant to your circumstances. In cases where agreement cannot be reached, our wealth of experience allows us to advise you and advocate for you.

It is important to note that superannuation is included in the matrimonial pool of assets and splitting orders can be sought. It is also important to note the time limitations that apply to 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.

Divorce

Your divorce is a relatively straightforward and simple administrative process especially when there are no children under 18. The court merely requires the parties to have been separated for 12 months. It is more complicated where there are children under 18 and the Court has to be satisfied that the arrangements for them are satisfactory. There are some procedural complexities, at times in relation to service of the divorce application on the other party or, where the separation is not agreed or where the parties have lived separated under one roof.

It is important to note that you must commence property proceedings within 12 months of your divorce if you have not already done so.

You should also review your Will following divorce.

Child Support

When working out your child support payment, 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 (ie regular care, shared care, primary care or above primary care)

The CSA has access to your tax records and uses these to help calculate your 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 solicitor 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

Parties to a marriage or de facto relationship can seek maintenance from their spouse 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 has to consider both the applicant party’s inability to support him/herself 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 spousal maintenance orders and they 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 that you obtain clear and considered legal advice if you are considering making such an application.

Financial Agreements

Financial Agreements (sometimes 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 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. It is an essential requirement that independent advice is sought by parties proposing to enter into such arrangements.

Mediation

We can assist you reach a resolution without litigation by using mediation. 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 in a humane, dignified and respectful way in private 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 together with you to tailor the process to address your specific needs and issues. You take control of the process to find solutions that suit you.
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 it.

Collaborative Practice has been used mainly for separating couples and in the area of family disputes but has application for all kinds of disputes especially including contested Wills and Estates.

Collaborative Practice assists you to maintain control of the process and keep your affairs private and maintains an atmosphere of fair play and respect even in areas where there may be disagreement.

You 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 draft the agreement into a legally binding document.

Litigation in Family Law

Although the majority of family law matters resolve without a court hearing, it can be necessary to commence legal proceedings. It is important that court documents are 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 are able to properly advise and counsel you as to what is realistically attainable.

Parenting

The welfare and best interests of children are the paramount concerns of the law when parties have separated. It is always best if the parties can agree to amicable arrangements for parenting post-separation 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 are able to help clients 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 come to agreement about parenting matters. Arrangements can remain informal, flexible and without any documentation, if that works for you all. Otherwise a parenting plan is a convenient and informal method of articulating arrangements in writing. It can cover day to day issues (such as time spent, schooling, extracurricular, medical and child support) and can help make parenting arrangements clearer and more predictable. It 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). It is 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 can be incorporated into consent orders that are made by the court. If agreement is not possible, we are able to assist you with the pre-litigation procedures and refer you to appropriate family dispute resolution providers being either private providers or community based services. If further intervention is required we provide the litigation tools you require.

Property Settlements

If you have separated from your spouse, we are able to provide you with sound advice about your rights and entitlements in relation to property matters which can involve an evaluation of the law, and a consideration of discretionary factors.

The law, in summary provides that the Court will make orders if it is just an equitable to do so.
The Court has regard to financial and non-financial contributions, as well as home making and parenting contributions.
Apart from contributions the Court will also assess needs, having regard to a range of factors including the parties age, health, level of income, parenting responsibilities and earning capacity and other factors particularly relevant to your situation.

Agreements can be formalised by consent orders filed with the Family Court or in a Binding Financial Agreement. We are able to assist you with the option that is most efficient and relevant to your circumstances. In cases where agreement cannot be reached, our wealth of experience allows us to advise you and advocate for you.

It is important to note that superannuation is included in the matrimonial pool of assets and splitting orders can be sought. It is also important to note the time limitations that apply to 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.

Divorce

Your divorce is a relatively straightforward and simple administrative process especially when there are no children under 18. The court merely requires the parties to have been separated for 12 months. It is more complicated where there are children under 18 and the Court has to be satisfied that the arrangements for them are satisfactory. There are some procedural complexities, at times in relation to service of the divorce application on the other party or, where the separation is not agreed or where the parties have lived separated under one roof.

It is important to note that you must commence property proceedings within 12 months of your divorce if you have not already done so.

You should also review your Will following divorce.

Child Support

When working out your child support payment, 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 (ie regular care, shared care, primary care or above primary care)

The CSA has access to your tax records and uses these to help calculate your 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 solicitor 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

Parties to a marriage or de facto relationship can seek maintenance from their spouse 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 has to consider both the applicant party’s inability to support him/herself 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 spousal maintenance orders and they 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 that you obtain clear and considered legal advice if you are considering making such an application.

Financial Agreements

Financial Agreements (sometimes 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 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. It is an essential requirement that independent advice is sought by parties proposing to enter into such arrangements.

Mediation

We can assist you reach a resolution without litigation by using mediation. 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 in a humane, dignified and respectful way in private 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 together with you to tailor the process to address your specific needs and issues. You take control of the process to find solutions that suit you.
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 it.

Collaborative Practice has been used mainly for separating couples and in the area of family disputes but has application for all kinds of disputes especially including contested Wills and Estates.

Collaborative Practice assists you to maintain control of the process and keep your affairs private and maintains an atmosphere of fair play and respect even in areas where there may be disagreement.

You 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 draft the agreement into a legally binding document.

Litigation in Family Law

Although the majority of family law matters resolve without a court hearing, it can be necessary to commence legal proceedings. It is important that court documents are 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 are able to properly advise and counsel you as to what is realistically attainable.