Daley Law advises clients in all matters of Family Law such as property settlements, parenting matters and Binding Financial Agreements relating to married and de facto couples including same-sex couples.
At the earliest possible time we explain to our clients the four step procedure followed by the Court and the information required in order for the Court to decide a property settlement. Once we have that information we are able to advise our clients on the possible outcomes and the stages of the matter. Those various stages can be settlement without mediation, settlement with an independent mediator or a trial before a Judge.
We do not beat about the bush when it comes to your matter. If we are not able to resolve issues at an early stage with your spouse or partner, or the solicitor acting on their behalf, we advance the matter to a Court ordered mediation where, if the terms of the property settlement are settled at the mediation, makes for the speedy resolution of the matter and means less legal costs incurred by you.
We understand that the breakdown of a relationship is a stressful and emotional time. We advise our clients to seek counselling from appropriate services as we believe that such counselling is beneficial.
We act with a view to seeing our clients again when their matter is finished. We are proud of the Family Law services we provide and we believe this is recognised by our clients when they return to us for their future legal needs.
RESOLVING PROPERTY MATTERS WITHOUT GOING TO COURT
Where parties have reached agreement in relation to the division of their property before Court proceedings have been commenced, we are able to advise and assist with the drafting of an Application for Consent Orders or a Binding Financial Agreement.
Some differences between Consent Orders and a Binding Financial Agreement include:
(i) Consent Orders are filed in a Court. The Court will only make those orders if the Court finds they are “just and equitable”, that is, fair and reasonable.
(ii) The terms of the Binding Financial Agreement will not be reviewed by a Court or any other body prior to the parties entering into the Agreement.
(iii) A Binding Financial Agreement is a contract between parties and is not filed. The terms of a Binding Financial Agreement do not have to pass a “just and equitable” test. It is possible for one party to have a more advantageous settlement than the other party although this type of Agreement may be later challenged by the disadvantaged party.
(iv) Parties do not need to obtain independent legal advice before entering into Consent Orders whereas each party must receive such advice prior to entering into a Binding Financial Agreement.
There are advantages and disadvantages to a Consent Order and a Binding Financial Agreement. We will advise you in that regard.
By signing a Binding Financial Agreement parties release themselves from future claims for spousal maintenance (unless the Agreement is later found void by a Court). Consent Orders do not prevent a spouse from seeking spousal maintenance.
A Binding Financial Agreement continues to be binding even after the death of one of the parties to the Agreement.
Whenever possible we prefer to see disputes resolved through the process of mediation at the earliest possible time. In most instances, the process is moderated by a mutually agreed independent mediator with recognised dispute resolution skills. Mediation in the first instance offers tangible benefits. Conducted in a less confrontational environment than a Court, it provides the most economic legal means by which a dispute can be quickly resolved and upon terms that are agreed to by the parties.
From the client’s perspective, a successful mediation avoids the added cost and time involved in protracted legal argument, the outcome of which often results in the matter having to be determined by a Court and a decision made on behalf of the parties by the Judge. However, in the event that a Trial or Court appearance does become necessary, our clients are well prepared.
COMBINED PROPERTY AND PARENTING MATTERS
Sometimes it is necessary to resolve the future care of the children before there is a decision on the division of the property and superannuation. In those matters we discuss with our clients the benefits of obtaining a Family Report from a qualified Counsellor/Psychologist.
Sometimes the Court will order that the children have a Court appointed solicitor, known as an Independent Children’s Lawyer, in order that the children’s wishes are made known to the Court. A Family Report is of real assistance where there have been allegations of family violence as the Court will get access to the Police files and medical records of the parties. A Family Report is also of great importance where there has been alienation of the children by one parent against the other parent.
Where appropriate, we advise our clients to contact their nearest Family Relationship Centre in order to participate in family dispute resolution. We believe your interests, and the interests of your children, will be best served by this process if there are no allegations of family violence or abuse. At the mediation conducted by the Family Relationship Centre you can put forward your proposed plan for the parenting of your children. If you and the other parent are able to agree on the care of the children then you may sign a Parenting Plan at the mediation.
A Parenting Plan can be an effective way to set out the care arrangements and parental responsibility for the children, and can save parties from the cost and stress of Court proceedings. There is a clear benefit for the children where Court proceedings can be avoided. It must be made clear however that a Parenting Plan is not a Court Order and therefore is not enforceable so that if a parent is not following the Parenting Plan they cannot be ordered to do so.
If you have agreed upon a Parenting Plan with the other parent, and you wish to obtain a Court Order in the same terms, we can advise and assist you with the preparation of an Application for
If you are not able to agree upon the care of the children then before you begin Court proceedings you must obtain a certificate from the Family Relationship Centre which sets out that the parties participated in dispute resolution but were unable to reach agreement. A certificate will also be issued where one of the parties has refused to participate in dispute resolution or if it is not appropriate for dispute resolution because of family violence or abuse allegations.
We are also able to advise and assist you with the preparation, filing and service of an Application for Divorce whether that is a sole or a joint Application.
If you are filing a sole Application for Divorce then you are required to serve your spouse with the Application. We can assist you with these arrangements for service.
Once the Application has been filed, we may attend the divorce hearing if you prefer. If there are children of the relationship including step-children then you will be required to attend the divorce hearing as the Court will need to be satisfied that arrangements are in place for the care and welfare of the children.
PAYMENT OF FEES
In each case a fee agreement clearly sets out what a client may reasonably expect in the way of costs, plus an estimate of the time involved for their matter to be completed. Aware of the potential legal costs a client may face, from the outset we are often agreeable to a delayed payment of fees until finalisation of a client’s particular matter. In such cases no interest is charged.