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Family & Relationship Law

Advisors

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    Charlotte

  • helena

    Helena

SEPARATION AND DIVORCE

Separation in the family law context occurs when you and your partner stop living together in a domestic relationship or marriage. Separation can occur while you and you partner continue to reside under the same roof.
Divorce is the legal ending of a marriage. You can apply to the Court for a divorce either jointly with your former spouse, or on your own.
Australia operates a ‘no fault’ divorce system. The reasons for the breakdown of the marriage need not be disclosed to the Court. To obtain a Divorce Order the Court must be satisfied the marriage has broken down irretrievably. To meet this criteria, you must have been separated for a period of 12 months, and confirm that there is no reasonable likelihood that you will reconcile.
If there are children of the marriage under the age of 18, the Court must be satisfied that there are proper arrangements in place before making the Divorce Order.
We can assist with Divorce Applications, including those where you are separated but are still living under the same roof. When you are separated under the same roof there are additional criteria you need to meet including preparation of an Affidavit setting out your period/s of separation under the same roof. Our Sunshine Coast family lawyers have the expertise to ensure such Affidavits are prepared correctly and your Divorce Application runs smoothly.
Divorce does not finalise the division of assets and liabilities between parties or parenting matters. These matters must be negotiated and documented separately. See below ‘Property Settlements’, ‘Relationship Agreements’ and ‘Children and Parenting’.

PROPERTY SETTLEMENTS

Property settlements can be resolved in a number of ways and finalised by way of a Consent Order or Binding Financial Agreement. This can occur without having to attend Court, however, in some instances this may not be possible.
Each party’s entitlement to a property settlement depends on a number of factors, including:

  • whether the parties were in a defacto relationship;
  • the pool of assets;
  • the contributions each party has made to the relationship (which can be in many forms), and
  • whether there are any relevant future needs (such as age, health, income earning capacity, care of children).

Once those factors have been considered, an assessment is required as to what would be a just and equitable division of the matrimonial assets in all the circumstances.
Depending on the length of your relationship, the nature of the assets available for distribution and other relevant factors including inheritances, windfalls or gifts, this can be a complex area to navigate. It is important to obtain advice on your rights, obligations and likely entitlements so you that can make informed decisions about the division of your assets.
We recommend you seek advice promptly, as it may be the case that protective steps need to be taken at any early stage, to prevent assets being diminished or disposed of. Time limits also apply.
Our Sunshine Coast family lawyers have expertise in resolving disputes about the division of property whether the pool of assets is large or small; whether it involves complex entities and business structures (such as multiple trusts, companies, self-managed super funds, multiple business interests including minority interests) or just the home and super entitlements.
Our Sunshine Coast family lawyers take a collaborative approach to family and relationship law disputes and will always attempt to resolve disputes between parties without resorting to Court litigation. At Mumfords Sunshine Coast family law we have the expertise in family, relationship and same sex law to provide you with the best legal advice and strategies to achieve cost effective and fair property settlements.

CHILDREN & PARENTING

Dealing with children and parenting issues following separation can be very difficult to deal with. The paramount and guiding principle when dealing with these issues is what is in the children’s best interests. Whilst emotions may be running high, it is important to remember this principle.
We guide you through all of the important issues which should be considered including:

  • where will the children live;
  • how much time they will spend with each parent and whether there are any safety concerns that require supervised contact or other safeguards;
  • what will happen on special occasions and school holidays; and
  • other issues such as education, health, religion and financial support.

Our Sunshine Coast family lawyers encourage amicable resolutions wherever possible, however, we frequently deal with matters that cannot be resolved by negotiation and require Family Court intervention. We also deal with urgent Recovery and Location matters, where children are being withheld or have been removed by a parent without the consent of the other party.
We recommend you seek advice from our Sunshine Coast family and relationship lawyers regarding your rights, responsibilities and obligations in relation to your children prior to entering into any agreements, parenting plans or Consent Orders following separation or divorce.

SUPERANNUATION

Superannuation is treated as property under the Family Law Act 1975 however, it is dealt with as a separate class of assets to real property including the family home, vehicles, bank accounts etc.
As part of a property settlement, superannuation can be ‘split’ between parties, however, there are superannuation splitting orders required to enable this to occur. At Mumfords our Sunshine Coast family lawyers can provide expert advice about superannuation splitting orders and agreements so that one party’s superannuation entitlements can be ‘rolled over’ to the other party’s superannuation fund as part of an overall property settlement.

RELATIONSHIP AGREEMENTS

There are many labels for these types of agreements. The legal world refers to them as ‘Binding Financial Agreements’ however, they are often referred to by lay people as ‘Pre-Nuptial Agreements’ or ‘Separation Agreements’. They can be entered into before, during or after a de facto relationship or marriage has broken down.
They are often used where there is an inequality of financial positions, or if there are certain assets which you may seek to protect in the event of separation. They can address a whole host of issues, including how assets including superannuation will be divided and what maintenance (if any) is to be provided by one party to another if separation occurs.
If these agreements are set up in the correct way, they can be an effective tool to protect your assets, and create certainty should separation occur. However, the legislation requires very strict compliance with the necessary formalities for an agreement to become binding, so careful and considered drafting is of utmost importance to ensure the agreement is not set aside in the future.
Some of these agreements can be simple, and others more complex depending on the circumstances. We recommend you seek the advice of a Mumfords’ Sunshine Coast family lawyer regarding your options, as there may be other alternatives available to you, including Consent Orders.

SPOUSAL MAINTENANCE

Spousal maintenance is often required and justified in circumstances where one party to a marriage or relationship if de facto, is unable to adequately financially support themselves. Spousal maintenance is sometimes confused with child support. (See our comments below about child support). Child support relates to children whereas spousal maintenance relates to a spouse.
Spousal maintenance however, is not automatic or guaranteed and there are certain criteria to satisfy in order to be successful in either negotiating the payment of spousal maintenance, or obtaining an order in your favour from the Family Court.
Spousal maintenance can be paid by way of ongoing periodic payments for a certain timeframe, or can be by way of lump sum or transfer of asset/s.
We recommend you obtain advice promptly as time limits do apply.
If proceedings have been commenced by your former partner and they are seeking an order for spousal maintenance, or if you are the party who is unable to adequately financially support yourself call Mumfords Lawyers Sunshine Coast family law. Our family lawyers have extensive and varied expertise and considerable experience in dealing successfully with spousal maintenance disputes whether claiming or defending.

CHILD SUPPORT

Parents have a responsibility to provide financial support for their children. This continues to be the case following separation.
Our family lawyers can assist you with a whole range of child support related issues, including private child support agreements, departure applications, stay orders, appeals from the SSAT and applications to review/object to assessments and child support decisions.
This area of law can be complex, and we recommend you obtain expert advice from our Sunshine Coast family lawyers.

MEDIATION

Mediation is often successfully used to resolve family law disputes on a final basis. There are a number of types of mediation including family dispute resolution, which occurs outside of the Court process and usually in the absence of solicitors, or mediation as part of a Court ordered process. Mediation can occur in different forms, including round table mediations, or shuttle mediations where the parties are in separate rooms.
You can expect the mediator to identify the issues in dispute and explore options of how to achieve a mutually agreeable resolution. You are able to freely negotiate and consider possible outcomes with the knowledge that the process is confidential.
We find the key to successful mediation is preparation, and having the right advice during the process. At Mumfords Lawyers Sunshine Coast family law we can give you the right advice regarding your options, and whether mediation is appropriate in your circumstances. Our Sunshine Coast family lawyers have considerable family law experience and expertise and can represent you at mediation and properly document any agreement reached.
Mediation can be used to resolve disputes about parenting or financial matters.

ARBITRATION

Due to under resourcing in the Family Court and Federal Circuit Court, parties are now waiting up to 2 years in some cases for a Final Hearing to determine their family law matters and Judgements can be delayed for up to 3 years or longer.
Arbitration is a form of alternative dispute resolution which is being increasingly utilised by parties and encouraged by the Court due to the enormous pressure within the Court system.
An arbitration is a process in which parties to a dispute presents their arguments and evidence to an arbitrator who makes a determination about the dispute, as a Judge would in the Court. It is a voluntary process and can be used to determine one aspect of a case, or to determine a case overall. Arbitration can be a very useful way of narrowing issues in a dispute and is becoming more attractive to parties who have been unable to agree on an outcome through negotiation or mediation.
Once registered, the decision of an arbitrator takes effect as if it were a decree of the Court and the decision may then only be reviewed on issues of law. Unlike in a Court process where a Court date and Judge are allocated, parties to an arbitration can choose the arbitrator they wish to use and also the date the arbitration is to occur.
There are many advantages to arbitration in addition to control over the process and timing of the resolution of your dispute. If you would like more information about arbitration, the costs and its role in family law matters, please contact us.
At Mumfords Lawyers Sunshine Coast family law we have the expertise in family and relationship law to provide you with the best legal advice and strategies to achieve cost effective and fair settlements through arbitration regardless of the size or value of the pool.

DOMESTIC VIOLENCE

There are many forms of domestic violence. The Domestic and Family Violence Protection Act 2012 defines this as behaviour that is physically or sexually abusive, emotionally or psychologically abusive, economically abusive, threatening, coercive or in any other way controls or dominates another person to fear for their safety or that of someone else.
To be successful in an application for a domestic violence order, there are a number of criteria that the Court must be satisfied of. This includes a relevant relationship between the perpetrator and person subject to the domestic, that domestic violence has occurred, and that it is either necessary or desirable for the order to be made.
If you are experiencing domestic violence or abusive behaviour, call us for advice regarding your options. Our experienced Sunshine Coast family lawyers will talk to you in confidence, and we can guide you through the process.
Our Sunshine Coast family lawyers have considerable expertise in representing clients at domestic violence hearings and achieving excellent outcomes.

PATERNITY

The question of paternity can be a common dispute, which can be related to other issues such as parental responsibility for the child, financial arrangements and what time the parents will spend with the child.
There are certain presumptions made in the legislation which may apply or may need to be disproved, depending on the particular circumstances of the case. The process often involves paternity testing where there is evidence to put the parentage of the child in doubt.
There are specific procedures which must be complied with when testing is carried out and results being reported.
Our Sunshine Coast family and relationship lawyers can guide you through the process, and provide you with the right advice.

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