O'Loan Family Law

Our family lawyers can help you reach an agreement with your former partner about parenting issues. If appropriate, we can refer you to counselling services to help with this process.

There is no standard custody arrangement. Often a child lives mainly with one parent and spends time with the other parent. Sometimes a child spends equal time with each parent. Different arrangements work for different families.

If you and your former partner reach an agreement, we can formalise the arrangements by obtaining Family Court Orders without you needing to go to Court. Court Orders are not necessary for everyone. We can talk to you about whether they will be helpful for you. We can also advise you about parenting plans and other more informal agreements about parenting issues.

Grandparents, or others who are significant in your children's lives, may want to make sure they continue to see the children even after a separation. Our family lawyers have experience acting for family members in a range of situations, including where parents are themselves unable to care for children.

If you and your former partner can't reach an agreement about children's matters, or if there are urgent issues that need to be addressed, Family Court proceedings may be necessary. We can represent you in Court and guide you through what can otherwise be a confusing process.

Our family lawyers can also advise you about obligations to provide financial support for your children.

Our lives and finances are becoming more and more complicated and financial settlements can relate to many aspects including:
The family home: Decisions will need to be made about who will keep the home or whether it will need to be sold.

Investment properties and shareholdings: Often there are taxation consequences that need to be considered as part of any property settlement.

Trust, company and partnership structures: If you are retaining the structure, care needs to be taken to properly remove your partner from ongoing involvement in the entity. If you are stepping out of the entity, you need to make sure that you are protected against any future liabilities of the entity.

Businesses: Property settlements may need to ensure the ongoing viability of a business to ensure ongoing income for the family.

Superannuation: Superannuation may be split between you and your partner. Or one of you may keep more of the superannuation and the other may keep more of other assets. Self Managed Superannuation Funds (SMSF) are becoming more common and need particular attention in family law settlements.

There are many factors to consider with property and financial settlements, including:
The true value of the assets held by both you and your spouse must be determined;

Contributions to the relationship must be assessed, including both financial and other significant contributions during the relationship;

Future needs, including ongoing care of children or other people, earning capacity and other financial resources that may be available; and

The division of assets must be equitable and decided upon as fairly as possible given the circumstances of your case.

If you are thinking about a separation, or have already separated, contact us for advice about your rights and entitlements before agreeing to a financial settlement.

We can help you in your discussions with your former partner and assist you to reach an agreement about a financial settlement. After meeting with us, you might wish to have direct discussions with your former partner to try and reach an agreement, or you might prefer us to negotiate with your former partner or their lawyer on your behalf. We will talk to you about the best way of achieving an agreement in your particular situation.

Once an agreement is reached, we can prepare the documents you need to finalise your property settlement.

We prefer to resolve property and financial matters by agreement wherever possible. This minimises your stress and financial costs. However, it is unfortunate that sometimes it is not possible to achieve a settlement. This might be because your former partner refuses to negotiate, takes an unreasonable position or threatens to destroy or dispose of assets. If any of these situations arise, Family Court proceedings may be necessary. We have the skills and experience to represent you in the Family Court and to act decisively and assertively on your behalf.

Child support is the payment that one parent pays to the other to financially support the couples’ child or children. The payment the parent receives should be reasonably fair, covering things like food, housing, clothing, schooling and education costs, medical expenses and other basic needs for the child.

Child support payments are managed by the Department of Human Services. If you cannot reach an agreement about child support, the Department will conduct an assessment to decide which party will pay the other, and how much will be paid.

Where there is no agreement between parents and a self-managed payment system is unable to be initiated, the Department of Human Services will assess the amount of child support payable to you or the amount of child support that you are required to pay. If you are unhappy with the decision made by the Department of Human Services, there is an administrative process that allows you to seek a review of the determination made.

Child Support can be confusing. We can assist you to understand the Child Support Scheme and how your Child Support Assessment is calculated. We can also advise about Change of Assessment Applications with the Child Support Agency and collection issues.

Many parents agree on their own arrangements for child support, particularly in relation to private school fees, special medical expenses and extra-curricular activities. Some parents also agree on payment of lump sum child support. We can advise you about arrangements appropriate to your circumstances and formalise those arrangements through a Binding Child Support Agreement.

Our family lawyers can also advise and help you with applications for adult child maintenance if your children are over 18 and still need financial support. This is often the case if your child is still studying or has a disability.

More of us are choosing to enter into or stay in long-term relationships without getting married. In recent years, Australia has broadened the meaning of a de facto relationships significantly, including recognising same-sex couples as de facto couples in property settlements.

Since 1 March 2009 de facto couples are now treated in the same way as married couples for the purposes of a division of their property after a separation and their matters are now heard in the Family Court and Federal Circuit Court.

You are in a de facto relationship if:

You and your partner are not married;

You are not family-related; and

You are a genuine couple, living together on an indefinite basis.

What does this mean for you if you are contemplating either entering into a de facto relationship or are looking to separate after having been in a de facto relationship? Well, there can be a more intense focus on the relationship itself where your partner may deny the relationship existed or perhaps disputes the length of the relationship. Alternatively, you may have found yourself in a brief casual relationship with an ex-partner who is attempting to claim for a financial settlement. In determining the legitimacy of your relationship in order to finalise a property settlement, the court may wish to evaluate some or all of the following:

When you and your partner commenced the relationship

The nature of your living situation;

The capacity to financially and emotionally support each other;

Whether or not you appear to be a continuing genuine couple;

If there is a sexual relationship

Whether your relationship is legally registered under state legislation in Australia; and/or

If there are dependent children involved.

We are here to help you if your de facto relationship breaks down. We have expertise in understanding how the Court’s “checklist” of relevant factors applies to your particular circumstances.

Spousal maintenance is an ongoing periodic or lump sum payment from one spouse to the other spouse for the other spouse's continuing living expenses. This is separate from child support which is paid for the children's expenses.

You may be entitled to financial support from your former partner in the form of spousal maintenance. Or you may be on the receiving end of a claim for spousal maintenance. Either way, it will be necessary to determine whether there is a need for spousal maintenance and a capacity to pay it.

The court will make a decision regarding spousal maintenance financial disputes based on a list of general criteria, as well as carefully evaluating the nature of your relationship. These determinants may include:

Total income, disposable income, property and other assets;

Any form of debt;

Age and state of health;

The capacity for you (or your former partner) to earn a living and whether or not the separation has affected it;

Your overall standard and quality of life; and

Which parent the children live with or which home they will spend the most time.

It is important to remember that spousal support is not necessarily an entitlement granted to anyone proceeding the finalisation of a divorce. It is often recommended by divorce lawyers, depending on the circumstances, that you should try to reach a financial agreement without going to court first, if at all possible.

If an application for spousal maintenance is made to the court, you and your former partner will be ordered to undertake dispute resolution procedures to more efficiently reach a payment agreement. These procedures are almost always mandatory with the exception of some extreme cases where child abuse or other family or domestic violence has either occurred or appears likely to occur.

You must submit an application for spousal maintenance orders within 12 months of your divorce being finalised. Filing for orders after this period can complicate and prolong the process and may result in a denied application.

Spousal maintenance is not only an issue for married couples who have separated. People in de facto relationships, including same sex couples, also have the same rights and obligations for maintenance.

We will undertake a detailed examination of income and expenses of you and your former partner and advise you whether there are grounds for a spousal maintenance claim.

If you are able to reach agreement about your parenting arrangements or the division of your property following separation, you can formalize the agreement with Consent Orders.

The Consent Orders are filed at the Family Court and once approved by a Registrar of the Court, they are made into Orders. There is no requirement to attend Court and you achieve the certainty and protection of binding Orders in a cost-effective manner.

Parenting Consent Orders can include your parenting arrangements, including who the children live with and the time they spend with you and their other parent during school term and school holidays, as well as the time the children spend with each of you on special occasions including Christmas, Easter, birthdays and other cultural or religious days of significance for your family.

Property Consent Orders can include how your property will be divided and what each of you will retain including real estate, monies in joint bank accounts, motor vehicles, shares, and superannuation.

Expert advice is important to assist you in ensuring your agreement is in your best interests and is fair and adequately reflects your intentions.

If you are able to resolve your matter by consent, this will reduce the stress involved in separation and will finalise your matter quickly, allowing you to move on with your life and focus on co-parenting your children. Consent Orders are a practical, inexpensive solution to formalizing the parenting arrangements for your children and finalising your property settlement.

For some information to help you in preparing or filing an Application for Consent Orders, click here (http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/forms-and-fees/court-forms/diy-kits/kit-diy-application-consent-orders).

Your family law matter does not have to end in litigation.
A collaborative law approach and the willingness of both parties to participate in meaningful negotiation to find a mutually acceptable outcome is what collaborative law is all about. At O’Loan Family Law, we can help you to work collaboratively towards a consent-based agreement.

Collaborative family law is a client-centred approach to resolving issues that arise following a relationship breakdown. In a collaborative process, you and your lawyer agree to work with your former partner and their lawyer to find a fair solution, whether for financial or parenting issues or both, without resorting to court. All participants, including the lawyers, sign a Participation Agreement that sets out the ground rules for the collaborative process and stipulates that if either party commences court proceedings, both collaborative lawyers will be disqualified from representing either party. This is a distinctive feature in that the lawyers also have an interest in resolving the dispute.

The collaborative approach includes cooperation, as required, from a range of professionals including child psychologists and counsellors, accountants and financial planners who work together with you and your lawyer to reach agreement.

While each party must be separately represented, we are experienced in facilitating meaningful discussion and negotiation, helping to remove the stress of separation and keeping legal costs lower.

Collaborative Law is right for you if:
You want a dignified, non-aggressive resolution of the issues;

You and your former partner have children and wish to reach a resolution by agreement with the children’s needs and interests as your focus;

You do not wish to incur the costs generated by court litigation;

You value retaining control over decisions about restructuring your financial arrangements or arrangements in relation to the children, but with advice from experts;

You want your dispute and the terms of any subsequent settlement agreement to be confidential;

You need the assistance of a lawyer to help you negotiate at face to face meetings;

You need to maintain a respectful co-parenting relationship.

Collaborative Law will not be right for you if:
You wish to ‘have your day in court’;

You think that the process will allow you to give less than full and frank disclosure or ‘out play’ your former partner;

Where there is a history of family and domestic violence.

Call O’Loan Family Law on 02 9922 2230 if you wish to discuss the option of Collaborative Law for you.