How can we help?
Separation is a difficult time.
Often making decisions regarding the children or division of assets can be clouded by the turmoil separation brings with it.
Getting the right advice is vital at this critical time. Lyons Family Law deals with Family Law and relationship matters.
We focus on your issues and provide strategies and options for you so you can get your life back in control.
Lyons & Lyons specialise, practise and advise in family law/relationship issues.
We pride ourselves in offering sound legal advice with staff compassionate to your cause, held in a friendly non-threatening environment to discuss your matter. Let us help you make an informed decision.
Separation
Do I need to get an Order from the Court,before I separate and commence to live elsewhere? No .
However if you intend to take you underaged children,then you would be well advised to get legal advice.
Divorce Applications
Divorce is the ending of the marriage on a formal basis and allows former husbands and wives to re-marry.
You can apply for a divorce only after you have been separated for 12 months.
Separation can occur, even if you and your spouse still live in the same residence. If this is your situation, Lyons Family Law can advise you of the special steps required to satisfy the Court that you meet the requirements for a divorce to be granted.
At Lyons Family Law we have simplified the process for you to divorce. We have done this at what we believe is a reasonable fee to make it accessible for most. This does not mean a reduced service. Lyons Family Law has the benefit of years of experience in Family Law.
Property Settlements
At any time after separation you can begin the process of dividing assets including superannuation.
Lyons Family Law provides clear and concise advice to unscramble the maze of property settlements.
We do this by applying a four stage process:
1. Identify the property (asset) pool;
2. Value the asset pool;
3. Consider the contribution made by each spouse as to the acquisition of assets; and
4. Consider the individual needs of each spouse as to their requirements from the asset pool.
Once we have met and obtained full details from you, we will advise what range you can expect from the division of assets.
Children Residence / Contact
Commonly known as "custody" and "access", this is the area of law that is without a doubt the most emotional to resolve.
As lawyers, the most important and vital skill is to listen to our clients and consider your specific issues.
Lyons Family Law will listen to you.
We will provide you with a clear and structured strategy to resolve your matter in the fastest possible way.
We will explain the options you have in order to avoid lengthy Court proceedings, however, we are not afraid to battle for your cause should the circumstances demand it.
Whether we can help you negotiate children's orders by agreement or litigate your matter through the Courts, Lyons Family Law will ensure you are informed and in control.
Maintenance Settlements
Your entitlement to receive, or duty to pay, maintenance to your spouse will depend on your individual circumstances.
Maintenance can also be potentially sought by parties living in a
de facto/ domestic relationship.
This maintenance is in addition to any child support that you may receive on behalf of your children.
Lyons Family Law will explain in simple, easy to understand
language whether any spousal maintenance applies in your case.
Pre-nuptial/ Binding Financial Agreements
These agreements are complicated with respect to ensuring all the legal requirements are met to ensure they will stand up in Court. Lyons Family Law will discuss your wishes and ensure all requirements are dealt with for your peace of mind.
Binding Financial Agreements can be entered into either before marriage, during marriage or after divorce.
Child Support Agency Matters
Dealing with the agency can be a frustrating experience for some people. Lyons Family Law will explain the process including your options as to payment and collection.
Recent changes in mid 2007 will also be explained so you are awareof the new process dealing with reviews and appeals of assessments.
De Facto agreements
Legal Changes have being implemented.
These changes will affect your rights if you are in a domestic relationship (commonly known as "de facto couples").
You rights will be explained in plain, easy to understand language. Lyons Family Law can provide to you options as to your potential entitlements or provide a strategy to protect your assets in the event of separation.
Court Representation
Choosing the right lawyer is only half the problem if you have a Court date looming. Ensuring you have the right barrister at Court is vital.
With a wealth of knowledge, having worked with or opposed to numerous barristers, Lyons Family Law will advise as to the best person suited to your particular circumstances.
Dividing Assets
DIVISION OF PROPERTY
When separation is a reality, it is often difficult to turn your mind to the division of property, particularly when emotions and the day to day reality of separation come to the fore. Nevertheless, the quicker you deal with assets and have a firm idea of your future financial situation, the better off you will be.
Obtaining information
The first step is to obtain as much information as possible regarding your financial situation. To do this we recommend that you obtain documents or copies of documents that relate to your financial position, including the following documents:
• Bank account statements
• Liability statements including home loans, investment property loans,
personal loans, car loans and credit card statements
• Taxation returns
• Company or business financial documents if you own or have an interest in one.
• Business profit and loss statements
• Details any shares or other investments you or your partner may have
• Receipts of major assets purchased such as furniture, works of art and audiovisual equipment
• Superannuation statements
• Life insurance policies
• Details of day to day living expenses such as utilities, food expenses for the family, school fees etc.
If the financial documents are addressed to you, we recommend that you keep them in a safe place so that you can readily access them at a later date if required.
If however the documents are addressed to your ex partner, we suggest that you obtain copies of the documents and then the copies to your personal documents. Once again we recommend keeping such documents in a safe place.
Once you have as much information as possible (and where possible documentary evidence), you will be in a better position to determine the assets and liabilities that make up the asset pool.
Factors considered in the division of assets
When considering how to divide assets, the following factors should be taken into account:
1. What assets and liabilities make up the property pool?
2. What values are attributed to both the assets and the liabilities?
3. What contributions have been made to the assets and liabilities?
4. What particular needs, if any do the parties have which would require an adjustment of the division of assets and liabilities?
5. Is the overall division of assets and liabilities fair?
Obtaining as much information and as many supporting documents relating to the assets and liabilities will assist in determining what is in the asset pool, particularly if a party seeks to hide assets from the other party. It is vital that there is full disclosure of all assets and liabilities and financial resources.
The value of assets and liabilities needs to be ascertained. Some assets and/or liabilities are relatively simple to value. For example:
• the current value of shares can be obtained by reference to their listed share value.
• the amount owing on a mortgage can be obtained by obtaining a statement from the bank or lender.
• the value of superannuation entitlements can be obtained from a member statements
• the value of a motor vehicle may be obtained by referring to internet car sale sites.
Other assets may be more difficult to value. For example:
• Real estate
• Businesses
• Companies
Appraisals obtained from real estate agents can provide an indication of value of real estate, as can an examination of a business' or company's profit and loss statements.
In situations where a value on such property cannot be agreed upon, the parties can agree to obtain a formal valuation from a qualified valuer. Whilst there are costs associated with such valuations, they do provide a mechanism for obtaining an independent valuation.
This is an important step in the process of division of property. The following contributions are considered:
• Direct or indirect financial contributions to the acquisition, conservation or improvement of any property.
For example, paying off the mortgage or purchasing food and other household items. Windfalls, inheritances and gifts received are also considered financial contributions.
• Direct or indirect contributions (other than financial contributions) to the acquisition, conservation or improvement of any of the property.
For example, where painting or renovating the family home or landscaping the garden and leads to an increase the overall value of the property.
• Contributions made as home maker and parent.
For example, caring for and raising children or running the family home.
These factors include:
• The age and health of each party;
• The income, property and financial resources of each of the parties
• The physical and mental capacity of each party for appropriate employment;
• Any major difference in income or income earning capacity between each of the parties;
• The duration of the marriage and the effect the marriage has had upon the income earning capacity of one of the parties.
• Whether either party has the care or control of a child of the marriage who is less than 18 years of age;
• The need to protect a party who wishes to continue that role as a parent;
• Whether either party has responsibilities to support any other person;
• Whether either party is eligible for a pension, allowance or benefit under, any law of the Commonwealth, of a State or Territory or of another country, or any superannuation fund or scheme;
• The reasonable standard of living that each of the parties should be able to maintain upon separation;
• If either party is cohabiting with another person-the financial circumstances relating to the cohabitation.
Of course individual "needs" considerations depend on the individual circumstances of each case.
Finally, once all of the above factors have been considered, the proposed division of assets must be fair or "just and equitable". Again, this depends on the individual circumstances of the parties.
Currently, different legislative provisions relate to parties who were married and those who were not married.
If you were married, then the provisions of the Family Law Act are relevant to you.
If you were not married, but lived as a couple on a genuine domestic basis, you come under the Property Relationships Act is the relevant legislative provision, . In early 2008, the Family Law Act was amended so as to include those who are not married.
Whilst some matters proceed to hearing, most matters can be resolved by consent, either before commencing legal proceedings or once proceedings have been lodged with the relevant Court.
If you do reach agreement as to the division of property, it is important to protect your position, that you formalise that agreement, either by entering into a Financial Agreement or by obtaining Consent Orders.
Whether orders are made by Consent Orders or Financial Agreement, it is vital that the documents be drafted in the correct form and meet all the requirements of the relevant legislation.
We have an extensive knowledge on dividing property and can offer to you a strategy to resolve matters as quickly and as cost effectively as possible.
Please feel free to contact us by telephone on (8383 3115) to discuss your way forward and options to resolution or Email: jwlyons@lyonsandlyons.com.au
Children’s Matter
Separation and divorce can have a major affect on the lives of your children. For children, separation can be a very traumatic experience.
While most children will eventually come to terms with separation, it has been found that children whose parents manage separation well respond better to the separation and are less likely to suffer from ongoing difficulties then parents who are in constant conflict.
Children deal better with separation when they maintain a loving relationship with both parents and their extended family. It is also vital that children maintain their bonds with their brothers and sisters.
Clearly it is better for the whole family if parents commence discussions in relation to the care, welfare and development of the children as soon as possible after the decision to separate has been made.
Because of the emotional and stressful effect that separation has on not only the parties but obviously the children, it is best that separating parents as quickly as possible either reach agreement with regards to the children to such things as where the children will live and how much time they will spend with the other parent, or if agreement is impossible, to undertake a course of mediation counselling to try and discuss the issues so that a resolution may be achieved.
Telephone 8383 3115
Email: jwlyons@lyonsandlyons.com.au
The Law
In 2007, the Family Law Act 1975 was amended to include a large number of new provisions in relation to children. The object of these amendments is to ensure that the best interests of children are met by:
• Ensuring that children have the benefit of both parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
• Protecting children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence; and
• Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
• Ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children
Best interest of the children
It is important to look at what considerations can be made by the Family Court when deciding what is in the best interests of the children and how much time the children should spend with each parent.
There are two primary considerations that the Court considers which are:
1. The benefit to the children of having a meaningful relationship with both parents; and
2. The need to protect the children from physical and psychological harm, from being subjected to, or exposed to abuse, neglect and family violence.
Further, there are additional considerations which the Court takes into account:
1. Any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the Court thinks are relevant;
2. The nature of the relationship of the children with each of the children's parents and any other persons (including grandparents or other relatives of the children);
3. The willingness and the ability of each of the children's parents to facilitate and encourage a close and continual relationship between the children and the other parent;
4. The likely affect of any changes to the children's circumstances, including the likely affect on the children of any separation of either of his or her parents or any other child or person including grandparents with whom the children may be living;
5. The practical difficulties and expense of the children spending time with and communicating with the parent and whether that difficulty and expense would substantially affect the children's rights to maintain direct contact with both parents on a regular basis;
6. The capacity of each of the children's parents and any other person to provide for the needs of the children including emotional and intellectual needs;
7. The maturity, sex, lifestyle and background (including culture and traditions) of the children and of either of the children's parents or any other characteristics of the children that the Court thinks is relevant (including aboriginality);
8. The attitude to the children and the responsibilities of parenthood demonstrated by each of the children's parents;
9. Any family violence involving the children or the children's family;
10. Whether it would be preferable to make an order that would be least likely to lead
to the institution of further proceedings in relation to the children; and
11. Any other factor or circumstances that the Court thinks is relevant.
The Court when deciding in the children's best interests will consider the extent to which in the past each of the parents has fulfilled the children's needs and provided for their care. This will take into account such things as whether one parent has facilitated or will facilitate a long term relationship with the other parent and what steps have actively been taken to demonstrate this by each parent.
If the parties are not in agreement as to what times the children spends with the other, where the children should live, then the Court will consider whether or not there should be equal time or substantial and significant time with each parent in certain circumstances.
Notion of shared care
The amendments also provide that there is a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
This presumption can be rebutted by a number of factors including evidence that it would not be in the best interest of the child for the child's parents to have equal shared responsibility.
Whilst the notion of sharing care on an equal basis is an ideal situation for many separating couples, the reality of life is that usually one parent has been the primary care giver to the children and will continue to be the primary care giver after separation. In many families prior to separation, the children's primary care giver has been the mother.
In those situations it is likely that the mother will continue the role of primary care giver.
Nevertheless, simply because the mother has been the primary care giver in the past does not diminish the responsibilities and the duties of the father. Indeed in certain situations, fathers can increase their involvement with their children after separation.
Another important factor to be taken into account in such matters is the effort made by each parent to facilitate not only the needs of for the children, but also to encourage the children to maintain a loving relationship with the other parent.
Family dispute resolution
Since 2007, the Family Law Act 1975 has required parties who have separated to undertake family dispute resolution counselling prior to commencing legal proceedings, in an attempt to resolve issues regarding children.
This family dispute resolution occurs at various centres around Australia or if the parties wish, through a private counselling practitioner who is qualified under the law to provide a family dispute resolution certificate.
If parents cannot resolve matters at family dispute resolution, a certificate will be issued which will then enable parties to commence proceedings through either the Family Court of Australia or the Federal Magistrates Court of Australia.
Consent Orders
Of course if an agreement is reached either between the parties themselves or through the assistance of the family dispute resolution counsellor, Minutes of Proposed Consent Orders can be made by consent and filed with the Family Court of Australia.
If the Court deems the Proposed Consent Orders to be in the best interests of the children, they will be made into Orders. This process is the most cost effective and quickest way of gaining enforceable orders from the Court.
However there are certain situations where parties will not agree and are left with little option other than to commence court action.
Application with the Court
Court proceedings are commenced by filing an Application and other required documentation with the Family Court of Australia or the Federal Magistrates Court of Australia.
Whilst a family dispute resolution certificate is generally required before commencing Court proceedings, there are circumstances where such a certificate is not required.
For example, where one parent is denying the other parent time with the children and there is no reasonable grounds for doing so or where there is a risk of abuse or violence.
In those circumstances, an application should be made immediately to the Family Court or the Federal Magistrates Court of Australia and evidence can be given by way of an affidavit which states the reasons for urgency and why family dispute resolution has not been attempted.
Family Report
If the dispute cannot be resolved prior to an interim hearing at Court, it is likely that the Court may seek the assistance of an outside expert who will meet with the parties and prepare a report known as a family report or a welfare report.
This report usually involves both parents and the children meeting with a child psychologist who will usually evaluate the relationship between each parent by inviting the children in with each parent.
Recommendations as to what they believe is in the best interest of the children are usually included in a report for the Court.
Independent children's lawyer.
In certain situations, depending on the children's age and the attitudes of both parties in furthering the resolution of the decision in respect to the children, the assistance of what is known as an independent children's lawyer may be sought.
The independent children's lawyer is appointed by the Court to act on behalf of the children's best interests.
The independent children's lawyer will normally make a submission to the Court after discussing matters with both the parents and their legal advisors, taking into account any welfare or family report that has been prepared.
"Judge managed" cases
If an agreement is not reached between the parents and a judge has to make a decision, cases are now commonly run before the Family Court by what is known as "judge managed".
A judge managed case involves only matters dealing with children and is designed to decrease the time it takes for a hearing to occur.
The judge will ask direct questions of both parents and will decide what evidence needs to be presented in the case rather than that decision being made by the parent's individual lawyers.
Whilst judge managed cases are becoming increasingly popular in the Family Court, parents are still greatly assisted by legal representation and the assistance of barristers who will make submissions to the judge on their clients behalf.
How we can help?
At Lyons Family Law we have an extensive background in dealing with children's matters and are available to assist you should you have specific questions as to your situation. We also hold expertise in ensuring that any draft orders to be made by the Court cover all expected issues and are likely to lead to a position where certainty in your child's future is established.Please feel free to contact us by Telephone 8383 3115)
Email: jwlyons@lyonsandlyons.com.au on 8383 3115 to discuss your way forward and options to resolution.
Websites of Assistance.
Family Court of Australia, Sydney Registry.
http://www.familycourt.gov.au/
Federal Magistrates Court Sydney
http://www.fmc.gov.au/html/sydney.html
Legal Aid Sydney
http://www.legalaid.nsw.gov.au/
Womens Refuge Centre
http://www.wrrc.org.au/contactus