Neutral Bay Family Law

13 August 2019

By Lisa Wagner

Located on Sydney’s lower north shore, Neutral Bay continues to appeal to young professionals, wealthy families and retirees. According to the Australian Bureau of Statistics in 2016 Neutral Bay had a population of 10,488, most of who were aged between 25 and 44 years, comprising married (37.6%) and couples in a de-facto relationship (17.7%). About half of the families in Neutral Bay had children.

Doolan Wagner Family Lawyers have been providing expert advice to people in Neutral Bay and surrounding areas for close to three (3) decades and understand the common issues and questions that arise for the local community.

Often our clients from Neutral Bay and its surroundings:

  1. Are concerned about the division of their respective hard-earned assets and their entitlements in relation to their ex partner’s assets.
  2. Are considering future parenting arrangements and how to meet the payment of private school fees and best achieve sensible child support agreements.
  3. Are wanting to secure their superannuation and retirement income ensuring stability and certainty in retirement.

Engaging a family lawyer can be a daunting step. At Doolan Wagner Family Lawyers we understand that each matter is unique and we tailor our advice to suit you. Each and every one of our clients are important to us and we endeavour to achieve the best result for all of our clients bearing in mind that engaging a family lawyer means that you are likely experiencing one of the hardest times in your life.

If you are looking for an Accredited Family Law Specialist near Neutral Bay, along with an experienced and dedicated team of family lawyers, then contact us at Doolan Wagner Family Lawyers to arrange an initial consultation for a reduced fixed rate and have all of your family law questions answered.

Read on to learn about some of the commonly raised Family Law issues that may be important to you.

It's often not 50/50

A lot of separating couples seek legal assistance to divide their assets and liabilities however are not aware of what factors will be considered, what they’re entitled to and how the Court will assess their situation.

So how does the Court approach a matter where both parties have made their own respective contributions? And, how would the Court consider a situation where one party had been predominantly a “homemaker” or “stay-at-home parent” and the other the “breadwinner”?

In relation to Family Law matters, the approach normally taken in all property applications is a four-step process. These four steps are:

1. Identifying the net asset pool which includes the value of all the property of the relationship, less the debts of the relationship.

2. Assessing the contributions made by each of the parties. Basically, contributions may be any of the following:

2.1. Direct financial contributions including being towards the acquisition of assets.

2.2. Indirect financial contributions, for example where one party’s income is used to buy the groceries each week to enable the other party’s wages to be applied directly towards the mortgage.

2.3. Non-financial contributions, including contributions as a homemaker and parent.

3. Making any adjustment needed to be made to take into account “future needs” factors such as the age and state of health of each of the parties, financial circumstances, care of children and earning capacities.

4. Structuring a settlement that is just and equitable.

It is important to remember that each matter will be assessed on its own particular facts.

Are inheritances included in a property settlement?

An inheritance received by a party can be included as an asset available for distribution in the matrimonial pool of assets however may be treated differently to other property depending on the particular facts of a case. For example, an inheritance received early in a long relationship and applied towards a mutually owned asset of the parties is characterised as a financial contribution by that party however the significance of it will diminish over time.

If an inheritance is deemed to be unavailable for distribution as it is not yet available, an adjustment can be made to the remaining assets when taking into account the future needs of both parties and the benefit the particular party has as a consequence of a prospective inheritance.

How is superannuation considered?

Ordinarily, the current values of parties’ entire superannuation entitlements are included in any Balance Sheet. This does not however prevent superannuation benefits or entitlements as at the commencement of a relationship or accrued after a separation, from being asked to be considered outside a Balance Sheet or excluded/quarantined. Each case will turn on its particular facts. Generally, parties may negotiate how their superannuation entitlements are considered and/or divided and the Court will likely accept any agreement the parties achieve in the event that it is part of an overall just and equitable resolution of their financial matter.

Can I make a claim for ongoing financial support from my ex?

A party may make a claim for spouse maintenance in the following circumstances:

  1. If the party is unable to support herself/himself adequately;
  2. If the other party has the capacity to provide financial assistance.

An application for spouse maintenance is separate to a property settlement in family law. It is more likely to be considered by a party where that party to the relationship was predominantly a “homemaker”, is of poor health, is required to care for children in addition to themselves and in any event, has a lower employability level and capacity to support themselves.

An example of a person who may wish to claim spouse maintenance from their former partner would be a party who had been in a lengthy relationship and considered a “homemaker” and became financially dependent on their former partner.

Can I prevent my ex from making a claim for ongoing financial support?

In short, the answer is yes. A Financial Agreement can operate to prevent future claims for spouse maintenance. As the name suggests however, it is an “Agreement” which is required to be entered into by both parties and comply with specific legislative requirements in order for it to be valid. This includes obtaining independent legal advice.

How can I protect my estate from a potential claim from my partner in the future?

Importantly, achieving a property settlement by way of Consent Orders also does not protect your estate from a claim being made against it by your former partner upon your passing. Similarly, Consent Orders do not prevent you from making a claim against your partner’s estate after their passing.

This could be a significant consideration for a retiree, particularly where the separation from their former partner was on “bad terms”. A Deed of Release however can be entered into at any stage to protect one’s estate from a former partner’s potential future claim on their estate.

Without this documentation being prepared both you and your former partner are eligible to make a claim against the other’s estate. Some people are of the view that the possibility of a further claim being made against their estate by their former partner is to be expected or is a fair outcome. In certain circumstances clients may not want to abandon their ability to make a claim against a former partner’s estate at a later time should their ex pre-decease them. Other people feel very strongly about the need to protect their estate against such a possible claim. A Deed of Release will assist in finalising all possible claims between them and their former partner, both now and upon their death.

How do I formalise parenting arrangements in relation to my children?

Often when parties separate, the child/ren of the relationship are caught in a battle between their parents in respect of parenting arrangements.

Separating couples with children have to additionally consider future parenting arrangements and child support issues.

Parenting Consent Orders can deal with a huge number of the issuess parents face in a separation including where the child will live, the time spent with the other parent, parental responsibility, school holidays, special occasions and communication. The primary consideration in parenting matters is the best interests of the child. It is a distinct principle in family law and it will be paramount in all parenting matters.

Child Inclusive Conference (“CIC”)

In the event that parents cannot reach an agreement about parenting arrangements a CIC is an available option as part of the Court process to assist families.

A Family Consultant selected by the Family Court will conduct your CIC and will hold separate interviews with you, your former partner and your child/ren in order to understand your family’s situation and your respective perspectives. We note that a CIC has a particular emphasis on assisting the Court to understand the experiences of the children after separation and at the present time.

It is important to note that a CIC is not a confidential process. After your CIC, a memorandum will be released including conversations, information obtained by the parties and child/ren and the Family Consultant’s recommendations arising from the process.

Binding Child Support Agreement

Many parents who would be able to make an application for an Administrative Assessment through the Department of Human Services prefer to enter into an agreement on their terms and so opt to enter into a Binding Child Support Agreement.

A Binding Child Support Agreement will formalise your agreement with the other parent in relation to child support payable for the child/ren and provides certainty about financial support for the child/ren in the future.

Applying for a Divorce - what's involved?

Most parties choose to get divorced soon after separation in order to formalise the end of their marriage. In Australia, a person may not remarry if they are still married to another person. Preparing a Divorce Application, waiting for a Divorce Hearing and obtaining a Divorce Order from the Family Court, all take time. The process may be prolonged if your former partner is not agreeable to the divorce. Proactive steps can be taken to ensure this process is not unnecessarily delayed.

In order for a Divorce Application to be accepted and a Divorce Order to be made, the Court must be satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than twelve (12) months immediately preceding the date of the filing of the Divorce Application.

Family Law authorities have established that there are three (3) elements which need to be present for separation to be proven, namely:

1. Intention;

2. Communication; and

3. Action/Change in behaviour.

Parties to a marriage may be held to have separated and to have lived separately and apart however notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other. In each case, the question of whether parties have separated will be a question of fact. Broadly, some factors that the Court may consider include the:

1. Financial situation of the household and relationship;

2. Nature of the relationship and household;

3. Sexual relationship of the parties; and

4. Public knowledge of the separation.

It is important to note that an application for property orders must be made within twelve (12) months of your divorce order taking effect. Once this time lapses, you will have to obtain the Court’s permission to initiate property proceedings and this is not obtained lightly.

Are psychologist notes really confidential in family law matters?

Most information that is shared with health professionals will be confidential and is prohibited by law from being shared with anyone, except in limited cases where there is a greater need to protect the safety of the patient or another member of the community.

Evidence such as counselling notes must be relevant to the issues presented before the Court in order to be admissible. If the evidence cannot “rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding” it would not be relevant to the case (s55 Evidence Act 1995 (Cth)).

Therefore, information being legally confidential will not suffice in protecting it from being exposed in family law proceedings. Family law courts are flexible in accepting evidentiary material in order to understand and successfully resolve parenting matters involving children and are willing to assist a party in protecting particular aspects of evidentiary material in order to render the remaining relevant material admissible.

Are there any alternatives to Court?

Alternative dispute resolution affords parties different processes to assist them in resolving their matter out of Court.

Mediation is a very common form of alternative dispute resolution where parties to a dispute, with the assistance of a mediator, identify issues, develop options, consider the respective parties desires and endeavor to reach an agreement. The mediator simply conducts the mediation however does not have an advisory or determinative role.

Collaborative Law is another process available that is led by lawyers representing each of the parties and where it is agreed that the lawyers will cease to act for their clients in the event that the matter proceeds to litigation.

Court is a time-consuming, costly and unpredictable process that most clients wish to avoid. Engaging in alternative dispute resolution in family law matters should be an important consideration for most parties. It would not be suitable however for matters involving violence.

Doolan Wagner Family Lawyers - how can we help you?

We are a reputable specialist family law firm located conveniently on Sydney’s lower north shore. We are local to Neutral Bay residents and consistently strive to achieve the best outcome for our clients.

Every matter is different and we explore all available and suitable options including mediation, negotiation, collaborative law and litigation for our respective clients in potentially the most challenging period of their lives.

We have a dedicated team of experienced family lawyers prepared to handle your matter effectively and efficiently, providing you with reliable, direct and practical advice.

Being less than a ten (10) minute drive from Neutral Bay and located only a block away from St Leonards train station, come see us for an obligation free confidential consultation and understand where you stand.

Doolan Wagner Family Lawyers offer specialist family law advice in St Leonards on Sydney’s North Shore. If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or enquiries@familylawyersdw.com.au to discuss your matter in complete confidence. We have a team of experienced and caring professional family lawyers available to help you in this difficult time.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

Close Menu