Gallagher & Co

Family Law

General Infomation

The breakdown of a relationship can be emotionally the most

devastating period of one’s life. Statistics show that people who are

going through the breakdown of a relationship are more likely to

commit suicide, indulge in risky behaviour, such as the abuse of

alcohol or drugs and/or come to the attention of the Police as a result

of offences being committed and/or make foolish choices which

significantly affect the rest of their lives.

It can also be a financially devastating time.

Clearly when going through a relationship breakdown having the

guidance and assistance of a competent Family lawyer is invaluable.

The Family Law Act is complex and can be confusing. There are no simple

answers relation to children’s matters or property settlement matters each

case is different and will be dealt with differently by the Court.

Conflict resolution counselling is now a requirement in all Family

Law matters before proceedings can be issued (exceptions are

made in the case of urgency or violent situations.

If agreement is reached at such counselling it should be translated into

consent orders or by way of a Deed.

Legal advice is always necessary to either determine a just and equitable settlement or even on finalizing

an agreement you have reached yourself.

If you have come to an agreement it should be finalised either with a Deed or consent orders - any

agreement reached is not worth the paper it is written on unless that agreement has been ratified by the

abovementioned means.

If there is no resolution then the matter may have to be determined by a Court.

The Court may very well not give you what you want or indeed what the other party wants. The Court

will simply tell you what is going to happen to you whether you like it or not - clearly it is in your best

interest to maintain control over your own destiny and try to reach a compromise that works rather than

have someone else impose their opinion on you.

Legal aid can be obtained for children’s matters if you qualify (see Leal aid) for such.

Legal aid is generally not available for property settlement matters.

Your relationship breakdown can also have a profound effect on your children.

Children can become the unwitting casualties of their parents acting out their grief, frustration

and anger on each other and can be scarred both emotionally and mentally for life if their

parents and extended families are so morbidly involved in their own problems and either

consciously or unconsciously use their children for their own end or simply don’t appreciate that

they are hearing and watching their parents inappropriate behaviour.

Children can suffer unendurable stress listening to their parents arguing and it is your obligation

not to get them involved in what after all is your problem.

The concept of “being in the child’s best interests” is sometimes a difficult one for parents to

appreciate or understand when they are struggling to deal with the problems of their relationship

breaking down, however, it is simply unforgivable for parents to allow their children to be the

victims of their parent’s inability to resolve all the issues that arise as a result of a breakdown.

Children’s matters are determined on the general basis of “what is in the children’s best interest”

and the matters taken into account are set out in Section of the Family Law Act.

Every case is different and obtaining competent legal advice as early as possible is essential.

At the very least, parents owe it to their children for them to be happy and safe enough to

involve both parents and their extended families in their triumphs in life such as their 18^th

birthdays, engagements, marriages and ultimately their children.

Children have the right to know their parents, good, bad or indifferent and over time to develop

a relationship with their parents as they see fit.

One of the most important changes to the Family Law Act in recent times has been the

obligation on parents to take part in pre-litigation counselling to assist them to determine what

may be in their children’s best interests.

Also some lawyers give this lip service and jump into litigation on the flimsiest basis we believe

that the parents should wherever possible take control of their lives and chose what is ultimately

right for their children.

Parents and children are losers where a Court has to tell them what to do whether they agree

with it or not.

Presently under the Family Law Act the starting point with children is shared care and

responsibility.

This is an appealing concept but only seems to work for the children when the parents live in

relative close proximity, get on well and are completely child focused.

Still the most favoured outcome appears to be alternate weekends, half school holidays and the

like.

This tends to be favoured as it gives the child a secure base for attending school, keeping their

treasures and the security of knowing where they are and where they ought to be. Everyone

gets on better with a routine.

Although this in some respects doesn’t seem fair to the non-residential parent it can be the basis

an ongoing lifestyle for the child and the parents to which they can adapt fairly easily. There is

also the concept of essentially allowing the children where they want to be, either at their

mother’s or father’s and to drift between the two. Experience has shown that it doesn’t take

very long for children to take advantage of this situation and it can also lead them to feel as if

they don’t have “a base of operations”. They sometimes feel the lack of security of having a

home base and knowing where they are supposed to be at any given time.

In intractable matters where the parents simply cannot or don’t wish to work out an

arrangement that suits the children the Court can and will tell the parents what is going to

happen and what it considers to be the best interests of the child.

Surprisingly in a vast number of matters which are bitterly fought and contested for a number of

a years and finally a resolution imposed on the parents by the Court an epiphany occurs, the

parents start getting on with their lives and actually start focusing on the children and the orders

made by the Court can be varied by agreement between the parents.

Choosing a competent lawyer for children’s matters is extremely important as not only will that

lawyer be able to see you through the Court processes as easily as possible but can provide

sound advice and if they have the experience, be a good sounding board for clients and offer

better alternative solutions which may suit the parents and more importantly the children than

those that first come to mind.

Children

It is just as important in property matters to choose a competent lawyer as it is when dealing with

children’s matters.

Ending up in a trial situation in Court tends to be the worst possible outcome for the parties.

Settling financial matters between the parties is not about “getting everything I can” “taking the other

party to the cleaners” or the like.

Property settlement is about determining each parties entitlements in accordance with the Family Law

Act and then making orders which see the division of the assets, resources and liabilities to which each

party is entitled is carried out.

Property settlement is one of those areas where lawyers will continually ask clients to provide

information and you can make life easier and less expensive for yourself and more manageable by your

lawyer by anticipating or preparing information prior to or when requested by your lawyer.

Essentially your lawyer will ask you to provide details of you and your former partner’s assets,

resources and liabilities at the time you got together with estimated or preferably provable values.

Of more importance if the value of all property that the parties own currently being their assets,

resources and liabilities should be valued and proof of those valuations provided to your lawyer with any

significant changes which occur from time to time.

Once all the assets, resources and property has been identified and valued your lawyer with your

assistance and with the information provided to you work out using in particular 79 (4) and Section 75

(2) of the Family Law Act to determine your entitlements under the Act. Please see link to see these

sections.

Although these sections of the Family Law Act only take up 2 or so pages, what each and every

paragraph actually means has spawned countless reams of legal text and costly litigation.

An experienced Family lawyer is aware of how the Court interprets those sections and in particular “the

weight” the Court gives each and every section when trying to determine someone’s entitlement under

the Act.

No lawyer can tell you exactly what you are entitled to.

The Family Court is a discretionary Court and you could present your case before each and every Court

Judge or Federal Magistrate and come up with a slightly different result each time.

In most cases, the best your lawyer can do is provide you with a range of outcomes which the Court

may determine to be your entitlement and depending on the amount and quality of the information you

have provided will be more or less exact with that range.

At the end of the day the costs of litigation must be factored into determining a property settlement as

quite frankly the money is better off in your pocket than your lawyers unless unavoidable.

If both parties have experienced Family lawyers, except in exceptional cases, if the parties are prepared

to hear the advice provided by their lawyers there is no reason why a property settlement cannot be

sorted without the need to go to Court save and except for perhaps consent orders.

Every relationship breakdown as far as property is concerned should be formally ended so the parties

can get on with their lives and are finalised by consent orders being prepared or deeds being prepared in

accordance with the Family Law Act or other similar legislation.

It is vitally important to end a financial relationship at the conclusion of a personal relationship as if you

don’t the failure to do so can come back and haunt you sometimes years after the breakdown of your

relationship.

There are obviously other benefits, such as those relating to stamp duty and the like, all of which you can

discuss with your lawyer upon consultation.

If you need to get involved in the Family Law process, it is strongly recommended that you visit the

Family Court website or the Federal Magistrate’s Court website, both of which publish judgements from

matters before the Court as well as having a great deal of general and specific information that can be of

value to you.

If you have the time and inclination there is also nothing to stop you from attending at the Family Court

or the Federal Magistrate’s Court and sitting in on various hearings. Occasionally there be a Closed

Court, but this is the exception rather than the rule.

Again upon the breakdown of your relationship it is vitally important to receive competent legal advice

from an experienced lawyer as this will save time, money and grief.

Property Settlement