At Family Lawyers & Mediation Services we have a unique approach to family law. We understand that family law issues involve times of personal crisis.
It is important to obtain family law legal advice before you act on emotional issues (emotions may be running high on all sides) and may escalate if issues are not handled appropriately. We are conveniently located at Springwood, close to Brisbane, Logan City and the Gold Coast with an office at Helensvale.
We are experienced in all areas of family law and mediation (family dispute resolution) and our senior partner Randal Binnie is an Accredited Family Law Specialist (Queensland Law Society).
FLMS Family Lawyers (Brisbane & Gold Coast) provide legal services and advice in:
We can help you through legal negotiation, mediation, collaborative law or where necessary litigation in the Family Courts.
Take the time to talk to our Family Lawyers and get professional legal advice. If a resolution cannot be found through negotiation, or other dispute resolution methods we can effectively represent you in the Family Law Courts of Australia.
This firm is a member of the Queensland Law Society Limitation of Liability Scheme which is a scheme approved under professional standards legislation and limits the liability of members. A copy of the scheme can be obtained from the Queensland Law Society or upon request from the firm.
Family law disputes can and should be settled by either:-
- negotiated settlement between parties directly with legal advice;
- negotiated settlement with the involvement of lawyers; or
- decision of the Court.
You and your former partner may be able to negotiate and resolve the issues in dispute in relation to the distribution between you of relationship property and in that case the matter can be finalised by consent orders made in either the Family Courts of Australia or by way of a financial agreement. We will discuss with you which method is appropriate to your circumstances once you have advised us that a settlement has been reached.
We recommend dispute resolution methods including:
- and collaborative law
as the preferred methods be undertaken to attempt to resolve the issues in dispute but if this cannot resolve the matters in dispute it may be necessary to commence court proceedings.
Why commence Court Proceedings
Whilst we are focused on resolution of your family law matter an application may be necessary to the courts in appropriate circumstances to resolve the issues in dispute in family law matters.
We have the “expertise and experience” to represent you in court proceedings. We are able to provide you with our strategic legal advice before and during the progress of your matter in Court with a view to enhancing your prospects in the Court’s determination of your matter.
In court proceedings both legal issues and the strategies employed in the proceedings are important to achieve the best possible outcomes. We assess your case and recommend the strategic approach best suited to your circumstances.
The steps in the Court process may vary slightly depending upon whether the dispute is relating to parenting issues or property settlement. Generally, the steps are: —
- commencement of the court proceedings by one of the parties and service of the court documents upon the other party
- the other party filing response documents in the Court
- the 1st return date before the Court may involve an interim hearing requiring the Court to make an interim determination (based upon affidavit evidence) if in respect of parenting issues or if a property dispute then a directions hearing in which the Court will make directions for the future progress of the dispute in the Court process including requirements for disclosure of documents, participating in a Conciliation Conference or Court Ordered mediation
- the Court will appoint a mention date to review the progress of the matter and in particular whether or not the matter has been able to be resolved by agreement being reached. If there is no agreement then the Court will make directions for the Court process for the matter to proceed to a determination to be made by the Court at a final hearing
- at the final hearing the parties and their witnesses will be required to give evidence (by affidavit) and be subject to cross-examination of that evidence. Once the Court has heard all of the admissible evidence relevant to the case, the Court will make a determination of the dispute (the determination may be made by the Court on the same day as the final hearing however often be determination is not made for some time after so that the Court can reconsider the evidence given at the final hearing and prepare a written judgement).
What the Court takes into Account
In an application for property settlement, the Court may alter the interests of yourself and your former partner in any property. An Order made altering the interests in the property must be “just and equitable”. The adjustment can include giving an interest in the relationship property to either you or your former spouse even though there was no previous interest in that property. In determining what Orders should be made, the Court is required to take into account a number of factors set out in the Family Law Act 1975 and which can be grouped into two (2) major categories:-
- Contributions made by each party to the acquisition, conservation and improvement of the property;
- The relative financial strengths and weaknesses of each party.
There are four general steps involved when the Court considers an application for property settlement and these are:-
- Ascertaining what the property is at the time of the trial by identifying and quantifying the value of the property, which includes superannuation benefits. The Court will have regard to the whole of the property of the parties when considering a property settlement;
- Determining each party’s respective contributions to the property and to the welfare of the family. In determining the respective contributions made by each party to the acquisition, conservation and improvement of the property, the Court is required to take into account both financial and non-financial contributions made, as well as contributions made to the welfare of the family (including any contribution made in the capacity as home maker or parent).
- The contributions towards the acquisition, conservation or improvement of the property are taken into account whether these contributions were made before, during or after the end of the relationship and whether the property belongs to either or both of the parties.
- Where one party has introduced significant assets into the relationship then that party will generally receive substantial credit for that initial capital contribution and this is particularly the case in respect of relationships of short term.
- The Court will also look at the financial and non-financial contributions made during the relationship to the acquisition (eg: purchase price) and to the conservation (eg: mortgage payments, maintenance and repairs) and to the improvement (eg: extensions and renovations) of the property.
- Non-financial contributions may include the value of a particular skill or expertise which one party has used in acquiring or building up the property assets.
- Any gifts made to one party during the relationship by a parent or relative would be regarded as a direct financial contribution made by that party to the relationship.
- The Court will decide on the facts as to the contributions of each of the parties in respect of the family and in particular any contributions made in the capacity of home maker or parent;
- Determining the respective needs and resources of each party under the Family Law Act 1975 by looking at “any fact or circumstance the Court considers the justice of the case requires to be taken into account”, as well as the age of the parties, health, income, property and financial resources, care of the child of the relationship who is under the age of 18 years, responsibility of either party to support another person, earning capacity, eligibility for a pension allowance or benefit, standard of living, the length of the relationship, and the extent to which the relationship has affected the earning capacity of each of the spouses, cohabitation with another person, payment of child maintenance.
- The fourth and final step is for the court to determine whether in all the circumstances it is “just and equitable” to make the orders for property settlement which are proposed from the operation of the previous three steps. This is the stage where the court considers the mix between actual assets and superannuation in the division of the property.