Author: Vanessa Mathews

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Property Disputes Property Settlements

What happens if we can’t reach agreement on property settlement?

While many property settlements are resolved through negotiation or mediation, not every separating couple is able to reach an agreement.

It is common for separation and divorce to bring heightened emotions, uncertainty and disagreement. Issues such as the value of assets, future financial needs, parenting responsibilities or contributions made during the relationship can make negotiations difficult. In some cases, communication has broken down completely, making it impossible to resolve matters without legal intervention.

If an agreement cannot be reached, the Federal Circuit and Family Court of Australia can determine how property, liabilities and financial resources should be divided.

How Does the Court Decide a Property Settlement?

If Court proceedings become necessary, the Court will consider a range of factors, including:

  • The assets, liabilities and financial resources of both parties
  • Financial and non-financial contributions made throughout the relationship
  • Contributions as a homemaker or parent
  • The future needs of each party, including income, health, age and the care of children
  • Whether the proposed outcome is just and equitable in all the circumstances

Every property settlement is determined on its own facts, which is why obtaining advice from an Accredited Family Law Specialist is so important.

Court Proceedings Are Not Always the End of Negotiations

Commencing Court proceedings does not mean your matter will automatically proceed to a final hearing.

In fact, the overwhelming majority of family law property disputes are resolved before a Judge makes a final decision. Throughout the Court process, parties are encouraged to participate in negotiations, mediation and dispute resolution to reach an agreement wherever possible.

If an agreement is reached during proceedings, it can usually be formalised by way of Consent Orders, avoiding the need for a final trial.

Experienced Representation When You Need It Most

If your matter cannot be resolved through negotiation or mediation, Mathews Family Law & Mediation Specialists will provide experienced and strategic representation throughout every stage of the Court process.

Our Accredited Family Law Specialists have extensive experience acting in both straightforward and highly complex property settlement matters involving:

  • Businesses and family companies
  • Trusts
  • Investment properties
  • Superannuation
  • Significant asset pools
  • Financial disputes involving complex legal issues

We will explain each step of the process, prepare your case thoroughly and work tirelessly to protect your interests while continuing to explore opportunities for an early and cost-effective resolution.

We’re Here to Help

If you’re unable to reach an agreement with your former partner, you don’t have to face the process alone.

Contact Mathews Family Law & Mediation Specialists today to arrange your complimentary 15-minute telephone consultation. Our Accredited Family Law Specialists will explain your legal options, answer your questions and help you develop a strategy to achieve the best possible outcome.

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Property Disputes Property Settlements

What is a “Pre-Action Procedure”?

The courts in Australia are the last resort for settling a property dispute between spouses.  Even if you and your spouse can’t come to an agreement, you need to show the court that you’ve tried to reach an agreement through some type of alternative dispute resolution.  This is called a “pre-action procedure”.

Pre-action procedures are also aimed at determining which disputes can be settled out of court and which really require the court’s intervention.  While you might not be able to come to an agreement about everything, you might agree on some issues (who gets the house) and only have to bring a small number of disputes to the court (how is the debt divided).

There are several steps to the pre-action procedure:

  1. Inviting the other side to participate in dispute resolution, such as family counseling, mediation or arbitration.
  2. Agreeing on a type of dispute resolution service.
  3. Attending the dispute resolution and making a genuine effort to resolve the problem.
  4. Give written notice to the other side if no agreement can be reached (or the other side refuses to attend the meeting) of your intention to file with the court.
  5. Replying to the written notice if you are on the receiving end.

Consult with an experienced Family lawyer about the rules and requirements in pre-action procedures to ensure that you meet all of your obligations.

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4 Step Property Settlement Process Property Settlements

How do my spouse and I divide property when we get divorced?

The best way to divide property is by coming to an agreement on your own.   Many couples are able to work out an agreement by themselves or with the help of an objective person, like a mediator.  In this way, you control exactly who gets what – the house, cars, furniture, savings accounts, and debts – without a judge intervening.

If you sign an agreement, you can bring it to the court to receive consent orders.   A standard “Application for Consent Orders” must be filled out and signed and then submitted to the court along with the agreement.   Once the court grants the consent orders, the agreement is binding on you and your spouse and has the same legal status as any other order the court gives.

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Articles

Parenting Orders

An application for a Parenting Order can be made by the child’s parents, the child, a grandparent or any other person concerned with the child’s welfare.

The Court will only hear child related proceedings if an applicant has attended family dispute resolution (perhaps at a Family Relationships Centre) and obtained a certificate. A certificate is not required where:

  • the Application is for Consent Orders,
  • the matter is urgent or
  • child abuse or family violence is involved.

When dealing with an application for a Parenting Order, the court should have as its paramount consideration the child’s best interests.

A child’s views can be taken into account via a ‘family report’ prepared by a family consultant or an independent children’s lawyer. Sometimes a judge may interview a child, but this is unusual.

A Court can make Orders about:

  • parental responsibility;
  • which parent a child lives with;
  • wow much time a child spends with the other parent; and
  • how a child communicates with a parent.

When a magistrate makes an intervention order to protect a child, they must check if there are Parenting Orders in place. A magistrate can decide to suspend, vary (change) or discharge (cancel) a Parenting Order if certain conditions are met.

The relationship between intervention orders and parenting orders is complex. An intervention order does not stop the respondent applying for a parenting order to see the children. Get legal advice.

Can child care arrangements specified in a Court Order be varied?

There is a legal obligation to take all reasonable steps necessary to put the Parenting Orders into effect. The children should be positively encouraged to comply with the Orders.

What happens if Court Orders become unworkable?

If Court Orders are no longer workable, parents should try to resolve matters with the assistance of a lawyer and vary the Orders. If agreement can’t be reached, then application is made to the Court and the Court may order that both parents attend a parenting program or consider varying the Orders.

What happens if the Court Orders are breached?

The Court takes breaches of its Orders very seriously. Depending on the circumstances, the non-complying parent can be referred to a parenting program, fined, made to provide compensatory (or ‘catch up’ time) with the child and parent, or even face gaol.

Reasonable excuse

When a breach occurs, the non-complying parent may show a reasonable excuse. For example, a very sick child (supported by proper medical evidence) may be considered a legitimate reason for a parent breaching an Order.

Less serious contravention with no reasonable excuse

If there is no reasonable excuse for a less serious contravention the Court can:

  • make Orders for the person committing the contravention to take part in a post-separation parenting program,
  • make further Parenting Orders that compensate a person for the time the other person did not spend with the child as a result of the contravention,
  • order the person who committed the contravention to enter into a bond and
  • order the person contravening the order to pay costs.

More serious contravention with no reasonable excuse

For more serious contraventions where no reasonable excuse has been established the Court can make Orders for fines or imprisonment in relation to the parent committing the contravention.

Further information is available at: familylawcourts.gov.au

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child arrangements Parenting Plans Parenting Plans Parenting Plans

Parenting Plans

A Parenting Plan must deal with one or more of the following matters:

  • the person or persons with whom the child is to live,
  • the time that the child is to spend with another person or other persons,
  • the allocation of parental responsibilities for a child,
  • how parents consult about decisions to be made,
  • communication the child is to have with others,
  • maintenance of a child,
  • how to resolve disputes about the plan,
  • how to change the plan to for changing needs of the child parents and
  • any aspect of the care, welfare or development of the child or any other aspects of parental responsibility for a child.

A Parenting Order may be varied by a later Parenting Plan, but Parenting Plans cannot be enforced as an Order. When an application is made to a Court for Orders in relation to a child, the most recent Parenting Plan will be considered, if it is in the child’s best interest.

A parenting plan will be unworkable where:

  • both Consent Orders and the plan deal with the same subject matter.
  • the plan is vague and uncertain,
  • the plan is silent on important issues or
  • the plan deals with issues that cannot be part of a parenting plan such as Child Support or spouse maintenance.

Why Every Family Should have One

Divorcing parents are often so busy with their own anger or arguing over who gets what to remember their most important shared property their children.   By law, parents have a shared responsibility, which means that both parents must take care of their children’s financial, emotional and physical needs.  Family law in Australia encourages parents to work together on these issues and encourages families to create a “parenting plan” before divorce or the termination of a de facto relationship.

The purpose of a parenting plan is to detail the responsibilities and rights of each parent in order to do what’s best for the children.  A good parenting plan includes a day-to-day schedule for the children,  a break-down of time that each parent is to spend with the child for every day of the year, including all civil, religious and school holidays, payments for all of the various expenses, including medical, dental and after school activities, and how the parents will settle future disagreements. The court cannot grant a divorce order until it is satisfied that proper parenting arrangements are in place.  If parents are unable to create a parenting plan on their own, the court will do it for them.

The best parenting plan is one made by the parents themselves. Some parents are able to do this on their own, or with the help of a mediator or another trained professional in other methods of Family Dispute Resolution.

While a parenting plan is an agreement between the parents and cannot be enforced by the courts, there are legal remedies if a parent does not follow the plan.  The other parent may turn to the court and the court may make new orders based on the original parenting plan.

Below are five reasons to make a parent plan.

Everybody knows where they stand

A good parenting plan will include everything from which nights the children sleep at Dad’s house to what religion they will be brought up in to how the parents will settle disagreements between themselves. This limits places for disagreement and fighting between parents and gives them the tools to resolve disputes when they arise.  There’s no disagreement about where the kids will go for Christmas because it’s written in the plan.

More importantly, the children have stability. No matter what the arrangement, divorce or separation is hard on the children.  But having a regular routine, knowing that both parents agree on a particular decision and maintaining a loving relationship with both parents will make the transition and the coming years  easier.

Building Trust

Most likely, there is a lot of mistrust with the termination of the relationship.  Oddly, a parenting plan can help parents rebuild their faith in one another.   Creating the plan may also allow parents to hear from their children what they need and want.   Children, who may feel insecure in the new family setup, may be able to find a way to overcome emotional insecurity and learn to trust the family relationships again.

Starting Fresh

Laying out the plan ahead of time is not just good for the kids. it’s good for the parents too.  Following divorce or the end of a de facto relationship, parents have their own issues to cope with – living on one income, taking care of a home, and perhaps, even starting a new relationship.   Each parent needs to find time for him or herself to begin fresh but still be a responsible, caring parent.  A parenting plan that lays out the when and where, and leaves less room for surprises creates stability and structure for the parents as well as the children.

Financial Planning for Present and Future

A good parenting plan will detail who covers which expenses.   In addition to the basics like food and clothing, there are many “extras” that also need to be considered, including special medical and dental expenses, after-school activities and summer camp.  As children get older, parents need to think about driving lessons, university fees, and even weddings.  A good plan will take the future  and not just the current month or year  into consideration.  The current parenting plan doesn’t need to have all of these expenses included already, but it should provide a way for the parents to work out the division of these costs as they arise.  For example, parents may agree on percentages of incomes to be paid to a university fund for each child.    This prevents arguments between the “ex’s” and allows both sides to properly plan for the future.

A method for working it out

No plan is foolproof, and one of the most important parts of a good parenting plan is the mechanism for settling disputes.  For divorcing couples, this might even be the first time there is a plan for such inevitabilities in place.  Each family must figure out what works best for them.   Some may settle disputes by meeting over coffee in a neutral place.  Others may feel an outside mediator is necessary.   In many cases, just knowing a system for resolving problems exists helps families work through any difficulties that arise.

And one last note…..

Despite the plan, parents should remember that parenting doesn’t always follow a plan, despite the good intentions of both parents.   It’s inevitable that one parent will suddenly have an amazing work or vacation opportunity and ask the other parent to fill in, or a child will want both parents to be involved in a special project.   Parents need to remember that the children are at the center of any good plan.  They are not machines, they can’t always follow the adult rules parents make for them and they have their own needs and wants.   Parents need to remain open-minded, flexible and fair, even if every detail is not written into the plan.

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child arrangements Parenting Plans Parenting Plans Parenting Plans

Parenting Issues

Each of the parents of a child has responsibility for the child and a court can make an order which alters aspects of a parents responsibility toward their child. For example, a court could give one parent sole responsibility for decisions concerning a child’s education

As a starting point it is presumed that it is in the best interests of a child for parents to have equal shared parental responsibility for the child. This presumption is dropped if a parent has engaged in family violence.

Shared parental responsibility means parents must consult with each other about major long term issues affecting the child, such as education, religious upbringing and major medical treatment. Shared parental responsibility does not mean children must spend equal time with each parent, however they might spend substantial and significant time with the child. Parents will not spend equal time with their children if it is not reasonably practical or in the child’s best interests.

[Case: What is reasonably practicable in Mt Isa?]

Substantial and significant time means:

  • the time the child spends with the parent includes both weekend and week days and
  • the parent is able to be involved in the child’s daily routine and occasions and events that are important to the child or the parent.
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child arrangements Parenting Plans Parenting Plans Parenting Plans

Parenting Arrangements

A family breakdown brings about many emotional issues, parenting arrangements are probably the most difficult to resolve.

  • Where will the children live?
  • When will each parent get to see the children?
  • How long will each parent have with the children?

These questions form the basis of all parenting arrangements, but the key issue for the arrangements is what is in the child’s best interests?

Parenting arrangements after separation can be finalized by way of Consent Orders or a Parenting Plan.

The lawyers at Mathews Family Law & Mediation Specialists Melbourne have significant experience and expertise with regard to issues that affect children. We can help you and your family develop parenting arrangements that recognize your child’s best interests. We can help provide the stability your children needs and minimise the impact of the changes on their lives. Formalizing parenting arrangements is also beneficial where there is a high level of conflict and a limited ability for the parents to communicate amicably between themselves.

Sometimes arrangements are based on informal verbal agreements with your ex-partner, but in most cases it is best for these arrangements to be written and recognised by a Court. We consider it is best for parents to have made arrangements in advance for each parent’s time with the children, particularly for special events such as Birthdays, Easter and Christmas.  An agreement can help avoid disputes in the future about parenting arrangements for the children, reduce conflict and enhance security and stability for children.

Once agreement is reached we can draft Consent Orders so that the agreement is formally recognised by the Australian legal system.

If negotiation between the parties does not resolve all outstanding issues, we can assist you through arranging and assisting your participation in mediation. If an Agreement can’t be reached, or in the case of extenuating circumstances then Court processes might be required. Our highly experienced litigators will exercise care and compassion combined with the determination and expertise required to obtain the best results.

Mathews Family Law is a Melbourne family law firm.

Please contact us on 1300 635 529 to speak with a family lawyer from our law firm today. You can also send through your enquiry online now and we will contact you shortly.

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child arrangements Relocation and Recovery

The other parent has taken the children and is refusing to return them. What should I do?

If you have an order that the children live with you or spend time with you and the children have been taken or not returned, you need to apply to the Court for a recovery order. This order allows the police (both state and federal) to find and return your children to you.

If you do not have an order that the children live with or spend time with you, you need to apply to the Court for such an order, as well as a recovery order. This can be done simultaneously.

Sometimes, in an emergency, the Court may give these orders ex parte, that is, without the other parent being at court. If you are worried that the children might be taken out of Australia you should put the children’s names on the Airport Watch List. You will need to apply to the Court to place the children on the Watch List and send a copy of the application and any court orders made to the Federal Police.

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child arrangements Relocation and Recovery

Can I relocate overseas with my children?

If a parent moves away that move may affect the children’s ability to spend time with the other parent.

If there are court orders you need to check whether the move will breach the order. If it is likely you will be in breach if you move then you need to have the orders varied either by consent or by the Court. You must do this before you move.

Where there is a parenting plan or informal agreement for your children to spend time with the other parent, the Court could be asked by the other parent to issue an order which stops you from leaving.

If there are no existing Court Orders in place, you can move overseas if the other parent consents to you relocating.

If the other parent does not consent to the move you will need to obtain a Court Order.

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child arrangements Relocation and Recovery

I want to move out of the area – can I just take the children or do I need the other parent’s permission?

If a parent moves away that move may affect the children’s ability to spend time with the other parent.

If there are Court Orders you need to check whether the move will breach the order. If it is likely you will be in breach if you move then you need to have the orders varied either by consent or by the Court. You must do this before you move.

If there are no Court Orders you will not be breaching any orders by moving. Where there is a parenting plan or informal agreement for your children to spend time with the other parent, the Court could be asked by the other parent to issue an order which stopping you from leaving.

You can move away if the other parent consents to you relocating. If the other parent does not consent to the move you will need to obtain a Court Order.