Why do I need a Family Lawyer?

Ross Dunlop
Consultant
Barrister and Solicitor

Posted on 15/12/2016, Last Updated on 20/03/2019

Take a moment to ponder this…

Would Donald Trump ever take a life-changing decision about his family or corporate empire without first getting in-depth legal advice?

Does Paul McCartney regret not taking advice to enter into a Pre-Nuptial Agreement with ex-wife Heather Mills?

But before responding: “Well, they’re for the rich and famous, but what about me?”, doesn’t the fact that you might be of comparatively modest means make it even more critical that you don’t make decisions which can have a massive impact on your financial future without the benefit of at least basic legal advice?

And remember, it’s not always about the money.  It’s reasonable to presume that the mother who hired a mercenary (supported by Channel 9‘s 60 Minutes) to “retrieve” her daughter from Lebanon wishes she’d obtained an injunction preventing her from being “taken on holiday” there by her estranged partner.

The bottom line is, regardless of who you are or what your financial status might be, making uninformed decisions after your marriage or de facto relationship ends can cost you dearly – whether it’s a financial or emotional cost, or both.

As experienced family lawyers, time and again we see clients whose situations might have turned out very differently had they sought some initial legal advice at the time of separation, rather than waiting until “the horse had bolted”.

For example:

  • If parties separate and agree to divide up their assets in a particular way, and write up that agreement in clear, unambiguous terms – and even have the document properly witnessed – it will not be binding on either party. If those parties have not divorced then it would be open to either of them to apply to the Family Court for property settlement, perhaps many years after the original “agreement” was made.  The Court would take into account all of the assets which existed at the time the application was made, not at the time the initial agreement was signed.  This can have a hugely adverse impact upon a party who has, perhaps, lived frugally, made financial sacrifices and carefully built up assets in the meantime; whilst the other party may have spent liberally and “enjoyed themselves” in the intervening years.  Although the original document might be evidence of the parties’ intentions at that time, its terms may be largely or completely disregarded by the Court.  This scenario can be prevented if your agreement is formally reflected in an Application for Consent Orders made to the Family Court.
  • Where one party wishes to relocate with the children following a separation, and the effect of this is to significantly impact the other party’s ability to spend regular and meaningful time with the children, then the Court generally has to weigh up those competing claims and make a determination as to whether the relocation should proceed. Parents who simply relocate with the children without the other party’s knowledge or consent are at grave risk of being ordered back to their original location in order to reinstate the “status quo”, before the Court can objectively ascertain the merits of the case.
  • In some cases, however, parties (generally, but not always the father) who have been unaware of their rights have allowed the mother to relocate with the children “because she’s the Mum, isn’t she?”  It is only many months (or even longer) down the track that such parents seek legal advice about ongoing difficulties in spending time and communicating with their children, only to learn that they could have prevented the relocation from taking place had they obtained some basic legal advice at the time.  Even if that relocation occurred without the other party’s consent, it may well be that the children have subsequently become so established in their new environment that the Court decides it is not in their best interests to be further “uprooted” and returned to their previous location.
  • Often in Family Law cases, one party will earn and/or control the vast bulk of the assets. Depending on the nature of those assets, a party may try to liquidate these and transfer the funds to a “trusted” third party or even a secure overseas haven. The residual assets for distribution are often insufficient to do justice between the parties, and even if the Family Court made Orders with respect to overseas property, these are by and large unenforceable in another jurisdiction. In such cases, unless prompt action is taken by the financially weaker party to “freeze” the assets which are in danger of being sold/transferred/liquidated/ dissipated, then the “innocent party” can be left with little or no assets after what may have been a lengthy marriage.
  • Even though one party may not consider themselves to have been living in a de facto relationship on the basis, for example, that they still maintained their own residence and only spent 50% of their time living at the other party’s property, the Court will consider numerous other criteria and could ultimately determine that the relationship is, in fact, a domestic one and therefore subject to the rules of Family Law property settlement. Moreover, the 2 year de facto “qualifying period” enabling parties to bring applications for property settlement to the Family Court need not be continuous – instead, that period can consist of a number of shorter periods, aggregated together.  Many people are found to have entered into relationships which the law would regard as “de facto” even they themselves do not.
  • Many people still consider that if one person is “to blame” for the separation – for example, because they had an affair or there were instances of domestic violence – then they will be punished by the Court, with the other party receiving a larger share of the property or more time with the children. However, family law in Australia is governed by the “no fault” principle and unless one party’s conduct has negatively and significantly impacted upon the assets of the relationship then, generally, the Court has little interest in who said or did what to whom and when.  Although this could objectively be considered unjust – especially where the so-called “guilty party” might ultimately retain a significantly greater piece of the financial pie – the Family Court is not there to determine the morality of the parties or to punish behaviour which might otherwise be considered socially or morally unacceptable in mainstream society.

Accordingly, as may be noted from above, a significant percentage of the public whose only exposure to family law comes from “pub talk” or American TV courtrooms often don’t know what to expect when visiting a family lawyer for the first time.

In my next post, I will provide my thoughts on what you can do to ensure you get the right family lawyer working on your case.

The above does not constitute specific legal advice but is general information only.

Let’s meet, and figure it out

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