Along with the death of a loved one, the breakdown of a relationship and family unit will likely be one of the most painful and confusing events of your life. So what will this journey look like from a legal perspective and where do you start?
It’s not a ‘one size fits all’ sitation
Thankfully, many of us have wonderful family and friends to help us get through this difficult time in our lives. Unfortunately, when the support from friends and family detours into ‘legal advice’ this can often be more damaging than helpful and can lead to fundamental misunderstandings about how the Family Law process works.
Practically anyone you come across has a story about the Family Law system, and whilst passing on this advice is well intended, no one family is the same as another. Therefore, just because a family member or a friend of a friend’s family law matter resolved in a certain way, does not mean that your unique family law matter will resolve in the same way.
Arm yourself with the correct information from an expert
Before making any important decision in your life, you would generally make an effort to understand the subject matter prior to making your decision. Your family law issues are no different. In order for you to make the best decisions for you and your family, you need to be able to understand what your unique situation involves and what options are available to you. It is only when you have a good understanding of what your family law matter entails that you will be able to make the well-informed decisions needed to move forward.
Typically, we recommend an Initial Consultation with a Family Lawyer as a starting point and many offer this service. This is a session of 60 – 90 minutes wherein one of our Family Lawyers can understand your unique circumstances and provide you with advice on the pathways available to you to resolve your matter, as well as answering any questions you might have. At Hills Family Law Centre, Initial Consultations are a flat fee of $275 inc GST, and are strictly confidential, with no obligation to proceed any further than that consultation. It is simply a ‘one off’ confidential meeting for you to better understand your legal position as it relates to your family circumstances.
Please be aware that the below isn’t tailored legal advice, and should not be treated as such.
The path to deciding parenting / children’s matters doesn’t have to involve Court
When it comes to parenting / children’s matters post-separation, the reality is it can actually be quite a simple process to work through. Equipped with the right information about how the law operates to resolve these matters, you may be surprised to know that when both parties are receiving appropriate legal advice, a very small percentage of matters ever have to proceed all the way to Court to be determined by a Judge. There are several avenues open to parties to negotiate agreements, either informally or formally, without the need to ever step foot inside a Courtroom. The role of your Family Lawyer is to identify the relevant issues involved in your matter and the most appropriate ways to resolve those issues, as quickly and as cost-effectively for you as is possible.
The role of Dispute Resolution
For example, with respect to children’s matters, there is, more often than not, scope for negotiation between parents in relation to the most appropriate living arrangements for their children. Generally speaking, before a parent can apply to the Court for parenting orders, the Court encourages the use of Dispute Resolution procedures (including mediation and negotiation).
However, there are of course some exceptions to this requirement, such as circumstances of abuse, family violence or other urgency issues. Importantly, if an agreement is reached between the parents at this dispute resolution stage, then the terms of that agreement may be recorded as an informal Parenting Plan, or formalised by way of the filing of Consent Orders, without there being any need at all for the parties to attend Court.
The object of the dispute resolution process is to control costs incurred by parties and resolve the parenting dispute as quickly as possible. The paramount concern at all times is to consider what parenting and living arrangements will be in the best interests of your children.
What if property is involved?
With regards to property settlement matters – again, there is often enormous scope for negotiation, mediation and other cost-effective, non-court based processes to allow parties to come to an agreement as to the division of their property interests. The calculation of a just and equitable division (essentially – ‘fair’ division) of property interests is a clearly defined and logical process.
This process includes the identification and valuing of all property which comprises the joint property pool, together with an assessment of each party’s respective contributions (including assets prior to the relationship, gifts / inheritances, incomes and of course non-financial contributions, such as parent / homemaker contributions), and relevant future needs. We have an article that specifically touches on property, superannuation and divorce in more details. Read it here.
Seek legal advice sooner rather than later
If you’re contemplating separation, or your relationship has already broken down, consider obtaining some legal advice sooner rather than later. The decisions that you make now about how best to resolve your family law matters will impact you and your family significantly in due course.
Your relationship with your lawyer is an extremely important one. Like with your personal relationships, it needs to be the ‘right fit’. Given that people are often at their lowest point (psychologically, emotionally, financially and physically) when navigating their way through separation, divorce, children and property settlement proceedings, it is essential for you to feel as though you have the understanding, compassion, support and reliable legal guidance of your lawyer. Significantly, you must have faith and confidence in your lawyer’s ability to properly represent your interests and achieve an appropriate outcome.
Find the right fit for you
The best preliminary advice I can offer you is this… Don’t overwhelm yourself or have unrealistic expectations about how your family law matter should play out. Just take it one step at a time. In terms of finding a lawyer, you may like to speak with family and friends as sometimes a recommendation can provide a level of comfort, particularly during a difficult time.
The first step in the process
And what can you expect the process to look like? That may differ with each legal firm or lawyer but at Hills Family Law Centre we would have a no obligation initial consultation with you to discuss your matter. During our initial consultation with you, we take the time to understand your unique situation and provide you with preliminary advice in relation to your rights and obligations under the Family Law Act. We will discuss the various options available to you and provide you with an estimate of anticipated legal costs. You will then be in a position to digest that information and make a well informed decision about how best to move forward for yourself and your family.
