We’re in Dispute

Have you decided to separate from your spouse and it’s looking difficult? There are many levels of dispute and no doubt you have questions. So, let us help you start to gain some clarity of ‘what next.’

We’re in Dispute

Here are common questions asked by others in a similar situation to you

The court pathway can be a long and winding road. The first court event is essentially a triage process where parties are directed to take various steps to progress their case. Directions are commonly made for parties to obtain valuations, provide disclosure, and obtain reports. The next steps are generally for the court to decide interim disputes and then proceed to mediation. Cases that don’t settle at mediation are allocated to a judge and ultimately proceed to a final hearing (trial). Judges usually “reserve” their decisions, so the outcome only becomes known several months later.

When personal safety is an issue, it’s important to plan your separation in advance. The time around leaving a violent relationship can be the most dangerous. Experts in the field recommend that people at risk prepare a leaving plan, including;

  • building a support network
  • talking to a support worker
  • having a safety plan
  • saving some emergency money
  • keeping records of the abuse
  • finding a safe place to go
  • and talking to the police.

This can be extremely difficult to navigate – you want your children to have a relationship with both of their parents, but you don’t want them to be at risk of harm. Legally, both objectives are important, but safety comes first. Measures that can be used to keep children safe can include their time with the other parent being subject to supervision or substantial attendance requirements, limited hours, restrictions around the use of drugs or alcohol, and random drug screens.

The current accepted wisdom is that infants and toddlers should continue to live with their primary carer after separation. It’s crucial in their development to nurture and maintain a strong attachment to their primary carer. It’s like a base camp. Shorter periods on a relatively frequent basis with the other parent are best. Then they become able to manage more extended time visits being taken less frequently as they grow older.

Relationships often involve power imbalances. Financial knowledge and control can feature heavily in these dynamics. It’s important for people to be able to make informed decisions about their settlement. We help our clients to identify the information and documents they need, to obtain them and guide them in making these crucial life decisions.

When an intervention order (“IVO”) is issued in the context of a family law dispute, it’s important to keep in mind that the IVO is not the main game. For example, IVO’s that prohibit a parent from seeing their children usually have an exception that allows contact by written agreement. Further, an IVO can be overridden by a family law order.

  •  The options if you’ve been served with an IVO are to contest the case, or to consent to an order on a “without admission” basis. In some cases, a compromise can be made by agreement that you give an undertaking, which is essentially a promise to the court to abide by its terms. An undertaking does not carry the same force as an order.
  • Breaching an IVO, whether it’s a final order or an interim order, is a serious criminal offence. If you’ve been served with an order, it’s imperative that you comply with it.

The current state of the law is such that violence is rarely relevant to the outcome of a property settlement. Violence can be relevant in property settlement cases when it’s been occurred over a period of time and has clearly impacted the victim, making their contributions significantly more arduous. In contrast, family violence is often relevant in parenting cases and is listed as a specific factor to be considered in deciding what arrangements are in the best interests of children.

It’s rare for any assets to be quarantined from a settlement. The most common approach is for all assets, liabilities and superannuation to be included in the “pool” at the first step of the process before working out a just and equitable division.

A party who received a substantial inheritance might receive some credit when the issue of contributions is considered, but then there is the question of what weight should be given to the inheritance. There are better prospects of an inheritance making more of a difference when it is received late in the relationship (or after separation), and it is kept separate from the other assets of the parties.

The value of your business might need to be assessed by a forensic accountant. The valuer will decide which valuation methodology to follow (most common are net tangible assets or capitalisation of maintainable future earnings) and will consider numerous factors in calculating the value of your business, including its reliance upon you.

In short, no. The first step when working out a property settlement is to identify and value the assets, liabilities and superannuation that exist at the time that the settlement is to be determined. The changes that have occurred and their impact upon the outcome can be considered when the contributions of the parties are assessed.

Spousal maintenance is financial support that is paid to assist a former partner to meet their general living expenses. It is only payable by agreement or if there is a court order. The court will consider making a maintenance order if satisfied that the applicant (the person seeking maintenance) is unable to support themselves (disregarding any entitlement to Centrelink benefits) and that the respondent (their former partner) can afford to provide such support after meeting their own reasonable living expenses.

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