No, there is no requirement to engage a lawyer to represent you in the Family Court or assist you with negotiations. We do, however, strongly recommend that you seek legal advice as to your entitlements and obligations shortly following separation, and certainly before signing any written agreement with your former partner.
There is a common misconception that seeing a lawyer automatically means you will have to go to court. This is not the case.
Early advice can assist you in the negotiation process by providing you with knowledge relating to children or property settlement matters. We can advise you about:
- Your entitlements.
- Your options, including Family Dispute Resolution, Family Court proceedings or agreements that avoid the need for protracted Family Court proceedings.
- What would be a just and fair outcome given the circumstances of your particular case.
- Family Court processes.
- A likely outcome should your matter proceed to Family Court proceedings.
Your initial consultation gives you the opportunity to meet your lawyer face to face and ensure that you are comfortable with them. It’s the time to provide the background and circumstances relating to your matter, and any relevant documentation.
To assist with this, we ask that you prepare a chronology of events of your relationship. This is a timeline of the important events relating to your matter, including the date and a description of the event. This immediately gives your lawyer a snapshot of your matter.
Based on the information and documentation provided to your lawyer you will receive specific advice as to your rights, obligations and options.
- Information about both parents’ work and other commitments.
- Details on what the care arrangements for the children were during the relationship, what the arrangements have been since separation and your ideal outcome for future arrangements.
- Documentation, including:
- Your marriage certificate, or your children’s birth certificates, in the event that you were not married.
- Any written agreements between you and your former partner such as a parenting plan or draft consent orders.
- Letters, emails or text messages you or your former partner have written about the separation issues, including any offers or proposals made.
- Any previous Court Orders.
- Any documents you or your former partner have filed in the Family Court.
- Any Violence Restraining Orders (VRO) or applications for a VRO.
- Any Family Dispute Resolution Certificate, often referred to as a Section 60I Certificate (if you have been to family dispute resolution, you can obtain a certificate from the Family Dispute Resolution practitioner).
- Any other relevant information about the children.
- We recommend that you spend some time thinking about what arrangements are in the best interest of the children and what would work on a practical level. The following are some matters to consider:
- Do you have any concerns in relation to the children’s health and welfare now or in the future?
- Where do you propose the children live?
- What time do you propose the children spend with each parent, and other important people in their lives such as grandparents?
- Do you think, given the change in circumstances, you might need some assistance looking after the children? What are your options for childcare (eg relatives, day-care)?
- What communication could the children have with the parent with whom they are not spending time?
- Your proposals for special events and family occasions such as birthdays, Christmas, Easter, other spiritual or religious occasions, family gatherings and holidays?
- Do the children have any special needs or health issues? What steps are needed to meet these needs?
- Is there any reason why both parents should not be involved in making major decisions about the children’s continued care, welfare an development, such as school and medical treatment?
- How easy is it for you and your former partner to communicate with each other about the children?
- Prepare a schedule of assets (what you and your former partner own, whether held in your sole names, joint names or jointly with any other party), liabilities and financial resources (e.g. superannuation) as best you can.
- Spend some time thinking about your current and future financial needs and those of your former partner. Documentation to include:
- Documents showing the current financial position of each party.
- Any written agreements with your former partner such as a financial agreement or draft consent orders.
- Letters, emails or text messages you or your former partner have written to try to resolve the matter, such as proposals or offers.
- Any previous court orders.
- Think about and perhaps make some notes on the following:
- What assets, liabilities and financial resources did each person have before the relationship started, including estimated values for the same?
- What did each person contribute during the relationship (eg in paid employment, carrying out household duties, caring for children and other non-financial contributions)?
- Did either person receive any property such as inheritances, gifts or lottery winnings during the relationship?
- How old is each party?
- Does either person have any particular ongoing health needs?
- How much is each person able or likely to earn in the future?
- If you have children, the arrangements or proposals for future financial support.
- What standard of living did you have before the separation?
- How long was the relationship, were there any periods of separation and has the relationship had any effect on the earning capacity of either party?
Remember, our initial appointments are obligation free. Our aim is to help you reach a sensible resolution of your issues – whether a division of property, maintenance and child support or children’s matters – as quickly, efficiently and cost-effectively as possible.
Often parties in dispute over children or property prefer not to attend court.
There are clearly benefits in negotiating a fair settlement without the need to issue Family Court proceedings and, wherever possible, the emotional and financial burden of proceedings should be avoided. However, if there is significant delay in resolving the issues, or the prospects of reaching agreement start to recede, it may be necessary to commence proceedings to protect your rights and finalise matters in a timely manner.
If court proceedings cannot be avoided, our lawyers focus on resolving the matter fairly, promptly and at minimal cost. Experience, preparation and a supportive legal team provide our lawyers with the keys to confident court representation.
In the event of a relationship breakdown, the property available for distribution will include all assets and liabilities whether in your sole name, joint names or held with a third party. It also includes property you held in your own name prior to entering into the relationship, and/or property you have acquired since separation.
We always recommend seeking orders whereby financial matters are resolved on a final basis. While we understand that this can be an emotional time, we strongly advise this be done sooner rather than later.
For married couples, the entitlement to seek a property settlement with the assistance of the Family Court remains in place until 12 months following the Divorce Order taking effect. Parties may have been separated for a significant period of time, sometimes years, before applying for a divorce. The values of the assets, liabilities and financial resources are taken at the time orders are made, or when agreement is reached, and NOT at the time of separation. This means that all assets, liabilities and financial resources acquired after separation may still be considered part of the property of the relationship.
For defacto couples this entitlement remains in place for two years following separation. Again, the values of the assets, liabilities and financial resources are taken at the time orders are made, or when agreement is reached, and NOT at the time of separation. This means that all assets, liabilities and financial resources acquired after separation may still be considered part of the property of the relationship.
Both married and defacto parties can seek the leave of the Family Court to file their applications if they are out of time, however leave will not automatically be granted. A party seeking to file an application out of time will need to show financial hardship. Further, any application will incur additional costs that could have otherwise been avoided.
In deciding how the net asset pool should be distributed, the court considers the following:
- The net value of property owned by the parties (usually at the date of the trial) taking into account the current value of all assets and financial resources, and subtracting any liabilities.
- Whether it is just and equitable to make an order altering the parties existing legal and equitable interests, taking into account:
- The financial and non-financial contributions made by the parties to any relevant property, including purchase, maintenance and improvement.
- Any contribution made by a party to the welfare of the family and any children of the relationship, in particular in the capacity of homemaker or parent.
- The effect of any proposed order upon the earning capacity of either party.
- The future needs of the parties.
- The financial contributions of the parties. These include any inheritances, gifts, assets, liabilities and financial resources owned by either party prior to the date of marriage or acquired during the marriage. The court also considers the financial contributions during the relationship and in some cases following the breakdown of the relationship, such as who carried out the work that earned the income, and whether both parties were involved in income earning activities.
- The non-financial contributions to the acquisition, conservation or improvement of any property eg a party carrying out the manual labour in building a deck and the effect that the deck had in so far as the increase in value of the property.
- The contribution made by a party to the welfare of the family, including in the capacity of homemaker or parent, this includes tasks such as caring for the children and housework duties.
- The future needs of both parties, also known as Section 75(2) factors. These take into account such matters as the age and state of health of each of the parties, the income, property and financial resources of each of the parties, the physical and mental capacity of each party for appropriate gainful employment, whether either party has the care and control of children of the marriage (under the age of 18 years), and a number of other factors.
The court then makes a determination as to what percentage of the net asset pool should be received by each party.
We can provide you with advice as to a likely outcome, should your matter proceed to court.
Not all breakups are messy and some can even be quite amicable. We encourage parties to remain as amicable as possible, especially when there are young children involved, as there will be a need for a certain amount of continued communication between parties.
For both married and defacto couples, agreements as to the division of assets need to be formalised to ensure that they are binding and enforceable by the Family Court.
In circumstances where the agreed property division involves the transfer of a property into a party’s sole name, stamp duty concessions usually apply on the production of Family Court Orders.
Formalising an agreement can be done either by a Binding Financial Agreement or an Application for Consent Orders filed at the Family Court.
We recommend that you formalise your agreement by preparing an Application for Consent Orders which sets out the financial position of the parties and describes in detail the agreement reached. The Application and Proposed Minute of Consent is then sent to the Family Court for filing, without the need for the parties or their legal representatives to attend. Provided the agreement reached is just and fair the court will make Family Court Orders in terms of the Proposed Minute of Consent Orders.
A Binding Financial Agreement can be entered into at any time before, during or after a relationship ends. There are strict procedural requirements for these, and your lawyer will be able to draft and advise upon such agreements.
If agreement cannot be reached, it may be necessary to commence court proceedings. You should be aware that at any time following the commencement of proceedings an agreement can be reached and the matter finalised with Consent Orders. We encourage our clients to negotiate throughout the proceedings to reach an amicable outcome.
There are circumstances following the breakdown of a relationship where a party can apply to the Family Court for a periodic or lump sum payment by way of spousal maintenance. While there are quite specific issues that need to be dealt with when making such applications, each case is examined by the court on its own merits. We can advise on the prospects of making a successful claim for this type of maintenance.
While issues relating to the financial support of children are dealt with by the Child Support Agency, parties sometimes require assistance in respect to assessments made, or wish to depart from an assessment and enter into their own binding Child Support Agreement.
A binding Child Support Agreement enables the parties to commit to ongoing financial support of the children that either deviates from an assessment, or provides for payment of additional costs on top of the assessment or agreed amount. The binding Child Support Agreement has to be agreed to by parties and both parties need to have sought legal advice before signing the same for it to be enforceable.
Adult Child Maintenance
Child support is not payable to children over 18 years old. However, it is possible in some circumstances to apply on behalf of an adult child for financial assistance from the other parent.
Often in relationships one party has had control of the joint finances or knows more about their finances than the other. This often causes difficulty for the other party to effectively instruct their lawyer in relation to the asset pool.
The rules of the Family Court provide for pre-action procedures, which are steps that the parties must undertake or attempt to undertake prior to the commencement of any proceedings in the Family Court. These rules provide an ongoing obligation of both parties to provide full and frank disclosure.
This includes the exchange of relevant financial information and documents.
The following links may assist you in understanding your disclosure obligations:
- Family Court of Western Australia brochure titled Duty of Disclosure in family law proceedings
- Rule 13.07 of the Family Law Rules 2004, which relates to the duty of disclosure. This Rule applies to documents that are or have been in the possession or control of the parties and are relevant to an issue in the case
- Rule 13.14 of the Family Law Rules 2004, which highlights the consequences of non disclosure
Financial disclosure of your assets, liabilities and financial resources includes, among other things, evidence of your income and earnings (including payslips, contract of employment, tax returns, superannuation) property and business interests (including trusts and shares), your savings and investments (including bank accounts, term deposits, shares) and any other financial information relevant to your matter.
Your obligations in relation to ongoing disclosure also relate to any documents that are relevant in childrens matters.
If a party refuses to provide documents, the other party can apply to the Family Court for an Order compelling that non-compliant party to produce their disclosure documents. Alternately, a subpoena may be issued to relevant third parties requiring those third parties to produce documents that are relevant.
In the event that a party fails to comply with the order, it could result in the following:
- The court may refuse to give the non-compliant party permission to use that information or document as evidence to support their position.
- The court may stay or dismiss all or part of the non-compliant party’s case.
- Order costs against the non-compliant party.
- Fine or imprisonment for the non-compliant party on being found guilty of contempt of court for not disclosing the document or for breaching the order of the court.
- A value may be assigned to any property in which the non-compliant party has an interest so as to determine the net asset pool of the relationship.
This disclosure obligation is ongoing and you are required to provide updates when your circumstances change or when requested until finalisation of the matter. In the event that an agreement has been reached and a party becomes aware that the other party has concealed an asset, the original agreement or orders may be set aside by the court.
Parties can either agree on the value of assets based on estimated values or information readily available to them such as market appraisals, stock prices or valuations. Alternatively, the court can make an order for an expert to be engaged and a formal valuation be obtained.
The costs of the formal valuations are generally shared equally between the parties, unless the parties agree otherwise or the court makes an order to the contrary.
There is only one ground for divorce in Australia and that is that the marriage has broken down irretrievably. The courts are no longer interested in who might be responsible for the marriage breakdown.
You cannot file for a divorce until you have been separated for at least 12 months.
Sometimes a couple can be regarded as having separated even if they have continued to live under the same roof, however this will depend on the individual circumstances. The court will require proof of marriage breakdown during that time.
In the event that you have been married for less than two years, the Family Court requires that you and your former spouse attend counseling to discuss the possibility of reconciliation, or seek leave from the court to be able to file your application without first attending mediation.
You do not have to delay making arrangements in relation to children’s matters or property settlement until after the divorce is finalised. In fact, following a divorce, time limitations apply in relation to commencing any application seeking property settlement orders, if you have not already done so.
The court has an overriding duty to consider what is in the best interests of any children and recognises the emotional impact of separation and disputes on them.
The Family Court requires parents to first attempt to resolve any parenting disputes with the assistance of an accredited Dispute Resolution Practitioner before they apply to the Family Court to decide the matter.
Exceptions to the requirement to attend mediation include the risk of family violence or abuse, or the existence of a current VRO between the parties.
If you have attempted mediation and an agreement was unable to be reached, or the other party refused to participate in mediation following a formal invitation from the mediator, the mediator will issue you with a Dispute Resolution Certificate, often referred to as a Section 60I Certificate. This certificate will allow you to commence an application for Children’s Orders in the Family Court.
In the event that you are exempt from attending mediation, we can assist you in commencing an application in the Family Court and filing your exemption form.
Where parenting arrangements have been agreed between the parties, we can assist you in preparing the necessary application for Consent Orders.
In Western Australia, a Will is revoked by marriage and by divorce (if the divorce occurs on or after 9 February 2008). This will mean that your Will could now be void and you should consider making another one.
Wills can be made in contemplation of a marriage or divorce. If your Will was specifically prepared this way then you will need to consider whether or not you want to make a new Will.
In the event that you pass away without a properly prepared Will, the estate will pass to family members which may include one or more of your spouse (including a separated spouse), defacto partner, children, parents, siblings, nieces and nephews, regardless of your wishes.
Kott Gunning’s Wills, Estates and Trust Services team has an enviable reputation for delivering peace of mind and are able to assist you with preparing your Will.
We aim to keep costs to a minimum. The more amicable you and your former partner can be, the better off you will both be financially and emotionally.
We listen and aim to structure a solution that will best enable our clients to move forward. We can offer a fixed fee initial consultation with a family lawyer for only $300 to understand what is important to you and to ensure you know your rights, entitlements and the options that are open to you. Thereafter our rates and fee structure will differ depending on the practitioner engaged and the nature of the matter.
We feel strongly about transparency and no fee surprises. Like most professionals, we mostly charge at an hourly rate. Estimates can be provided to you at certain points during your matter, but ultimately your costs will depend on the work performed on your file. We endeavor to provide you with an itemised account either fortnightly or monthly to ensure transparency and to ensure you have better control of the costs.