We understand that the current challenges posed by the COVID-19 virus will place additional pressure on separated families, regardless of whether you have recently separated and in need of initial advice, or whether you have already begun the property or parenting settlement process through the family law system.
Rest assured, our family law team continues to be fully operational, albeit with some practical changes to the way we interact with our clients and the court system.
Our family law team all have the capability to work from home and so while it may not be appropriate, or permitted, to meet with you face to face, we are ready and able to communicate with you by email and telephone at all times to make sure your family law matter continues to progress towards a resolution.
The family courts remain open and functional (including urgent matters), with court appearances now being conducted by telephone.
The Heard McEwan family law team approaches family law matters in an empathetic, holistic and comprehensive manner. We understand and are sensitive to the fact that a separation may be the hardest thing that people go through in their life.
As a full service law firm with experience in all areas of commercial and personal law, our family law client’s have access to a range of other in-house legal services that they may require alongside their family law needs, such as wills and estate planning, conveyancing, and apprehended domestic violence order matters.
We are acutely aware that our client’s wide and varied circumstances require different approaches and strategies. Some matters are of an amicable nature and call for a smooth, efficient approach and resolution. At other times, matters may be more complex or urgent and they require a strong and robust approach to achieve an appropriate outcome.
Our family lawyers have experience in all areas of family law and regularly appear in the Federal Circuit Court of Australia and the Family Court of Australia.
Our family lawyers are also long standing members of the NSW Legal Aid Family Law panel, and have represented clients in receipt of legal aid throughout the family law courts.
We provide expert and timely advice and assistance in all areas of family law, including:
- Property settlements for married couples;
- Property settlements for de facto couples;
- Reaching an agreement and documenting a property settlement;
- Financial agreements;
- Parenting arrangements;
- Obtaining a Divorce; and
- Child support
Property Settlements for Married Couples
Upon separation, there is a process for determining how married parties should split their property.
That process generally involves the following steps:
- Consider whether it is just and equitable (fair) for the parties’ property to be adjusted (or split).
- Determine the assets, liabilities, superannuation and financial resources of the relationship and attributing a value to each.
- Consider the contributions that each party made to the relationship. This includes contributions made at the commencement, during, and after separation, and contributions of a financial, non financial, domestic and parenting nature.
- Consider the future needs of each of the parties. Some examples of these future needs include things like age, health, income and the care of children.
- Conduct a final review of al the circumstances to ensure that the outcome is just and equitable (fair).
Our family law team are experienced in complex property matters and we also draw on many years practice in general commercial and litigation law. We pride ourselves in providing timely, cost-efficient and practical legal advice and representation.
Property Settlement for De Facto Couples
A de-facto relationship is categorised as having occurred when parties have a relationship as a couple living together on a genuine domestic basis. The determination of whether a couple lives together on a genuine domestic basis is a technical area of law, and is largely based on individual circumstances.
If the parties did have a relationship as a couple living together on a genuine domestic basis, one of the following must also apply to be able to a seek a de facto property settlement:
- The de facto relationship was at least 2 years; or
- There is a child of the de facto relationship; or
- The party to the de facto relationship made substantial contributions and a failure to effect a property settlement would cause serious injustice; or
- The relationship is or was registered under a prescribed law of a State or Territory.
If the above circumstances are satisfied then the property settlement process is similar to the 5 step process for property settlements for married couples.
Reaching an Agreement and Documenting a Property Settlement
The vast majority of property matters resolve by settlement as opposed to a court hearing. We can help you reach an agreement where possible by negotiations with your partner (or their lawyer) or through mediation.
We provide expert advice and assist with practical solutions to help you get the best outcome, whilst at all times aiming to contain costs and avoid delays.
Once an agreement is reached, the agreement can be documented in consent orders or a Financial Agreement. Both of these options keep you out of court and will permanently end your financial relationship to protect you from future claims.
If an agreement cannot be reached, court proceedings may be necessary so that a judge can determine the appropriate outcome. Having said this, an agreement may still be reached alongside court proceedings at any stage.
If you have obtained a divorce order, then you have 12 months from the date of the divorce order to start court proceedings, or if in a de facto relationship, you have 2 years from the date of separation to start court proceedings.
Financial Agreements can be entered into at the beginning, during or at the end of a de facto relationship or marriage.
Financial Agreements are used to protect assets and to record how assets are to be divided upon separation, which provides certainty and aims to avoid future disputes or delays in resolving your matter if you separate.
Financial Agreements can be helpful asset protection tool which may form part of your overall estate planning.
If you have already separated, a Financial Agreement can be one of the means of reaching an agreement and documenting a property settlement.
There are very specific requirements under the law for a financial agreement to be binding, including the need for both parties to have independent legal advice. The Heard McEwan family law team will expertly guide you through the technicalities, explaining things clearly and simply, so that you may make the best decisions for you and your family.
A child’s best interest is the overarching legal principle when determining what arrangements are appropriate for children.
In addition, the two primary considerations are the right for a child to have a meaningful relationship with both parents, and the need to protect children from harm.
The approach and outcome of a court determining parenting arrangements is heavily focused on the individual circumstances of each family.
Resolving a parenting matter out of court can be difficult but it does not have to be hostile. The Heard McEwan family law team can help you reach a parenting agreement by negotiations with your partner (or their lawyer) or through mediation, including Family Dispute Resolution.
Family Dispute Resolution is a specific type of mediation under the Family Law Act which parents are required to attempt to do before commencing court proceedings. If you attend Family Dispute Resolution and cannot reach an agreement or the other parent does not attend, or there are circumstances that make it inappropriate for mediation to occur (such as family violence), then you will be issued with a section 60I certificate that allows you to commence court proceedings.
Once an agreement is reached, the agreement can be documented in consent orders or a parenting plan. Both of these options keep you out of court.
In circumstances where an agreement cannot be reached, or where there is urgent circumstances court proceedings may be necessary so that a judge can determine the appropriate outcome, having regard to the legal principles above. Our family lawyers have significant experience in litigated parenting matters throughout the family law court system.
Separation of a marriage must have occurred at least 12 months prior to filing the application for divorce, and generally, the parties must have been married for at least 2 years. In some circumstances, a short attendance at court is required.
The Heard McEwan family law team are able to prepare and file the divorce application for you, along with ensuring it is correctly served on your husband or wife, and attending court if required. We provide experienced support to take care of the process quickly and cost-effectively.
Child Support is mostly dealt with between the Child Support office of the Department of Human Services and individual parents.
In some circumstances such as where parents wish to have a private agreement about child support, or where there is a dispute about paternity, it may necessary for parents to obtain legal advice, which we can provide.