If you've made the difficult decision to see a family lawyer, here's how to make the most out of your initial consultation:
Understanding the basic principles of Family Law
Below is a basic outline of family law principles that it is good to familiarise yourself with prior to your appointment:
Court isn't the first option
There are several steps to take before commencing an initiating application with the Court.
Alternative Dispute Resolution (ADR) is required and preferred by the Court. This includes events such as mediation, conciliation and arbitration. Negotiations between lawyers as well as respectful negotiations between self-represented litigants can lead to a quick and inexpensive outcome without the stress of initiating Court proceedings.
The advantages of ADR include it is less costly, more flexible, quicker and can help to preserve relationships.
The disadvantages of ADR include that there are less formal rules, lack of disclosure and time and energy invested with no result.
However, not all matters are suited towards ADR. In circumstances where you are concerned for the safety of children on an urgent basis or have experienced serious domestic violence, ADR is not always required.
On average, depending on the urgency and severity of your matter, you may not be before an officer of the Court for between three to six months (depending on the Registry e.g. Parramatta, Sydney, Wollongong, etc).
If you are headed to Court, you need to be aware of the following:
In determining what is in a child's/children's best interests, the Court considers primary and additional considerations.
The primary considerations include:
- the benefit to the child/children of having a meaningful relationship with both parents
- the need to protect the child/children from or being exposed to harm.
Harm includes physical or psychological harm. Harm that the child/children might be subjected to or exposed to such as abuse, neglect or family violence.
Greater weight is given to protecting the child/children compared to encouraging a meaningful relationship between the child and either parent.
Family violence is defined in section 4AB of the Family Law Act as violent, threatening or other behaviour by a person that coerces or controls a member of the person's family or cause the family member to be fearful. Examples can include being present when a member of the child's/children's family is being assaulted or cleaning up after the child's/children's family member has damaged property.
Additional considerations include the views of the child/children (depending on their age) and the nature of the relationship between the child/children and their parents.
For more information on additional considerations, see section 60CC of the Family Law Act.
Upon the Court determining if it is just and equitable to make an adjustment, there is a four-step process that the Court will consider when attempting to reach a property settlement:
- Determine the assets and liabilities available for division
- Consider the contributions made by both parties at the outset of the relationship, during the relation and after separation
- Consider the future needs of both parties to determine if an adjustment of property is appropriate
- Consider if the division of assets is fair and equitable.
Arrive prepared for your initial appointment
Bring a timeline of important events
Your timeline should include the following:
- When you and your partner/spouse met each other
- When you married each other, commenced a relationship, moved in together and/or registered for a de-facto certificate
- When you had children. Provide their names, dates of birth as well as information about any addition needs such as developmental, educational, care, health or physical needs
- Parenting arrangements that you had in place previously as well as what the current parenting arrangement is. For example: how much time do you spend with the children each fortnight and a schedule is helpful
- When and where you and your partner were employed
- When you as an individual and as a couple bought/sold significant assets like real property including the address, cars or jewellery
- When you as an individual and as a couple entered into debt. For example: personal loans and/or mortgages
- When businesses were initially registered/sold
- Whether you and/or your partner have engaged in conduct which has significantly decreased the asset pool. For example: gambling and/or criminal activity.
- How much time would you like to spend with your children in a fortnight both in the short and long term?
- Who has had the majority of care since separation?
- It is important to think about what your answer would be in the
following three scenarios:
- In an ideal world where everything went your way
- Where most things go your way but you have to compromise a little
- What is your bottom line - What is the minimum you could comfortably agree to.
- What are both yours and your partners financial position (your
financial position includes individual and joint assets,
liabilities and superannuation):
- at the time you met/married
- at the time you separated
- What are your short-term and long-term goals in relation to
property. For example:
- Do you want to sell the house/car/boat or retain the property?
- Would you prefer more time with your child/children and a smaller cash sum?
- Would you prefer a larger cash sum and less superannuation?
- What is your borrowing/re-financing capacity?
- Do you have significantly less or more superannuation than your spouse?
- What is your ability to access liquid funds?
Bring with you to the appointment:
- the last three years of any financial documents you have. For example: tax returns or financial reports
- Trust Deeds
- Superannuation balances
- Mortgage documents.
Understand your lawyer's role
Everything you discuss with your lawyer is confidential.
Your lawyer is retained to provide you with legal advice. There may be instances where you receive advice that isn't in your favour however, we have an ethical obligation to provide you with impartial advice that is in your best interests. We are required to reality test your proposals, just as a Judge would in Court.
It is important to engage with family, friends or mental health experts to look after your mental health during what can be a very difficult and lengthy process. We are here to provide legal advice, not to be your counsellor.
We act on your instructions. It is important that you understand and consider the advice we provide as we cannot make decisions on your behalf.
Common misunderstandings about Family Law
The law, the Court and case law is very clear on the following principles:
- Australia is a no-fault jurisdiction. This means that who ended the relationship and why is irrelevant to family law proceedings. These reasons will not result in either party receiving more or less in the division of property or time with your child/children.
- Domestic labour is considered and valued as a contribution. If one party earned a wage and the other party stayed home with the child/children, both parties' efforts are considered as contributions to the relationship.
- An "awful" or "lazy" husband/wife does not automatically translate to being an awful or lazy parent. It is important to keep these two concepts separate.
Have a list of questions ready so that the meeting can progress efficiently. This will assist in keeping your costs down.
Try to remain objective and open to the advice we provide.
When speaking about parenting arrangements with your lawyer, think in terms of a 14-day (fortnight) period, as this is the way the Court thinks.
Depending on the information at hand, the specificity of the advice we are able to provide will vary. For more specific advice, make sure you arrive to the consultation prepared.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.