Money Matters

Welcome to our blog “Money Matters”...Money does matter……but separating parties need to remember to make sound commercial decisions when negotiating their property settlements which may involve compromising.Unfortunately separating parties can get too focused on an outcome that they feel they should receive in a property settlement without considering and weighing up additional and often silent costs of Court delays and legal costs that follow.

Currently, parties can wait up to two years to have their case heard before a Judge.

 

It’s important to remember that there are also risks when you leave your case up to a judge to decide. Although judges follow the legislative pathway of the Family Law Act and case law, they also have wide discretion in deciding cases. It’s impossible to have outcome certainty once you step into a court room and have a judge decide your case.

 

Occasionally, judges do make mistakes. If a judge gets it wrong your only option is to appeal the decision which includes further costs and delays and further uncertainty.

 

Both parties in financial matters would need to provide full and frank disclosure.   It’s an essential requirement and if a party does not comply then there are wide ranging ramifications. In cases of non-compliance costs can be sought against the non-complying party and adverse findings made by a Court.

 

It is our experience at Forshaw Lawyers that financial matters can be sensibly resolved between the parties or between solicitors with some healthy negotiations and ultimately a mediation. Mediations can be organized through private mediations who are either family lawyers, barristers or alternatively some Family Relationship Centres conduct mediations for both parenting and property matters.

However, in cases of urgency, or where one party simply fails to providedisclosure,  filing an application at the Federal Circuit Court/Family Court may be warranted.

 

Therefore, it is important to get sound advice as to the likely range of outcomes a court will make.

 

Property settlements are covered under s79 of the Family Law Act for married couples, and s90SM for de facto relationships. There is generally a five step process when considering a property settlement as follows:

1. Is it just and equitable to make any order in the first instance?
2. What is in the pool of assets?
3. What are the contributions of the parties?
4. Should there be an adjustment for future needs?
5. Is the outcome just and equitable?

 

The Family Court website provides some general advice about property settlementswhich is useful. In general, there are a number of factors to be taken into account, some of which will be more important than others.

 

s81 of the Family Law Act is an important section that provides parties with some security that their property settlement has been finalised once and for all. However, there are exceptions to this, which often takes place when one party has not been open and frank with their financial position and has not provided the other with all the relevant information and documents. In these cases the other party can file an application with the Court to obtain a new agreement and they would also often seek costs.

 

For advice regarding your property matter please contact our office on 9620 1379 for an appointment with our experienced family law solicitors