Family Lawyers Melbourne

Mulligan Lawyers are skilled family lawyers with years of experience helping to fight for our clients. We specialise in all family law matters from divorce, child custody issues, asset splitting and property matters.

We provide fixed fee legal advice and representation in relation to all divorce and de facto property settlements arising from breakdown of a relationship.

The principal Patrick has extensive experience in Family Law. He has also worked for National Family Law Firms. He has appeared in Family Law matters and run trials as an advocate in both childrens matters and complex property matters.

In particular we can assist you with the following services:

• Settlement agreements including Binding Financial Agreements(Contracts) and consent orders( settlement agreements approved by court without attendance);
• Pre-Nuptial Agreements and Asset Protection Advice.
• Pre-court mediation conferences and settlement agreements.
• Complex children’s matters including allegations of child abuse.
• Family Court disputes.
• Family law Federal Circuit Court Disputes.
• Complex property applications including family businesses, trusts, partnerships and acting for third parties who are involved in family law disputes. See specialist link for this topic.
• Urgent spousal maintenance applications.
• Urgent applications to sell a family home or other property.
• Urgent applications for a party to have exclusive occupation of a property including for reasons to improve the value of the property.

Under most Family Law cases the courts will adopt a 4 stage process when considering property disputes:

1. Identify all property and financial resources of each party, identify the debts and establish the net value of the property pool arising from the relationship. This means identify the value of the assets and deduct debts arising from the relationship.
2. Assess all contributions both financial and non financial during the relationship;
3. Assess future needs and comparative income of both parties.
4. After assessing all the above matters the courts must determine if the outcome is just and equitable.

Every case is different and the law is always changing. Call us for expert advice.  In the meantime review some frequently asked  questions and answers for property matters.

Step 1: Assets and Liabilities.

ASSETS QUESTIONS.

• Q.       My Husband (or partner) managed all the finances and I don’t know what all the assets and liabilities are. Can I do anything about it?
• A.       Yes each party has a legal ongoing duty of disclosure of financial documents. If a party does not comply this can result in seeking a costs order from a judge. In addition if a party to litigation does not disclose documents the court can make an adverse finding against the party not disclosing documents.
• Q.      Can I rely on a real estate appraisal or an agreed value for the family home or another house such as an investment property?
• A.       It is possible to mutually agree on a valuation method or a value including a real estate agent however if a matter proceeds to a final hearing the only qualified expert to value property is a valuer.
• Q.      What happens if I disagree with a valuation report?
• A.       If you are in the Federal Circuit Court, in most cases each party may obtain their own valuation report. In the Family Court usually a joint valuer must be appointed and there are specific court rules about procedures to produce alternative valuation evidence.
• Q.      I owned a property before we got together, Should that be included in the joint property pool to be divided by the court?
• A.       No black and white answer. The courts have a very broad discretion under the Family Law Act. Usually, courts will adopt a global approach when including property of the parties. No matter who it belongs to, all property is usually included and valued. However there are many cases where the court has ruled that certain property should be kept separate or quarantined from joint property. This is called an asset by asset approach. Examples often include where although parties are together they have kept their finances separate or a party’s inheritance was obtained after separation.
• Q.      What date is property valued?
• A.       Even if you are separated for several years property is valued as at the date of trial. Yes, that means property may have increased in value by a significant amount. All the more reason to resolve issues ASAP. In addition, the court will look at post separation contributions towards the value of property in each case.
• Q.      What is a financial resource?
• A.       In simple terms it is not property. A financial resource is generally a future expectation of income or property. For example family trust income, a future damages payment or even a new partner’s income and stability.

Superannuation.

• Q.       Is my superannuation included in the property pool?
• A.       In short yes. Superannuation is property. The court has power to make a splitting order for each parties’ superannuation. It may be possible

DEBT QUESTIONS.

Family Loans.

• Q.       Are Family Loans from my parents included as a liability?
• A.       If you have evidence of a written loan agreement that is always better evidence. Regardless the court must be satisfied that the loan was meant to be repaid. Another issue may be whether or not both the parties knew about the loan and when the money was borrowed. If your parents lent money they may need to be joined as a party to proceedings so that the court makes an order for that loan to be repaid.

If the court decides the money is not a loan from the  parents (or other family members), but a gift it can be argued that sum of money is an indirect contribution on behalf of the person who was lent the money.

Credit Card Debt and personal loans.

• Q.       Are all my credit card debts included and deducted from the property pool when I go to court?
• A.       The court has a lot of discretion under the Family Law Act. Each case is different but the general rule is that personal debts incurred after the separation date are not included as joint debts. It may be possible to argue that another party has recklessly wasted money during the relationship and therefore particular debt should not be taken into account.(“the wastage argument”).

Tax Debts.

• Q.       How are Tax Debts of each party treated in Family Court Cases?
• A.       In most cases the general rule is that debts incurred during the relationship are joint debts. It must be proven that the tax debt will not be repaid or was an example of reckless conduct by one party (wastage arguments). Again each case is different and may be treated differently.

Step 2: Contributions Questions.

• Q.       I owned the family home before we got together. This is the major asset so shouldn’t the court give me most of the money?
• A.       Initial contributions are a relevant consideration in family law cases. There is a lot of case law in this area and each case is different. Relevant factors include if there are children, how long was the relationship and what other contributions including family contributions were made. Often if the relationship is lengthy the courts adopt a principle called the erosion principle. This means the longer the relationship, the more likely that initial contributions are eroded. Again every case is different.
• Q.       I was the sole breadwinner during the relationship so I made most financial contributions during the relationship and should receive more money?
• A.       The court does not just look at financial contributions to the acquisition and maintenance of property. They also look at contributions both direct and indirect to the welfare of the family. For example, as with many relationships, indirect contributions by family members to raising children are a relevant consideration. Also the court will look at each party’s contribution in their respective spheres .e.g. One party was the breadwinner, the other was the primary carer of the children. In other words one could not have succeeded without the other.
• Q.       Is there a presumption of 50/50 is you were married or in a de facto relationship?
• A.       No. However in practice, the longer the relationship the more likely each party’s contributions during the relationship can be considered as relatively equal. Eg. Primary carer looking after the children while the other party worked on a successful family business.
• Q.       Are family gifts from my family taken into account?
• A.       Yes it is an indirect contribution that will be taken into account.

Step 3: Future Need and Income earning capacity questions.

• Q.       I am the primary carer of young children and earn less than my ex-partner. Will this be taken into account?
• A.       Yes. In many cases comparative income may be so great that the other party has received a very high percentage due to comparative income earning capacity and care of the children. Make no mistake, call for advice. Every case is different and should be argued properly.
• Q.       What will the court consider in relation to future needs of each party?
• A.       The court will, amongst other things, consider future caring arrangements for a child or children(where relevant), each party’s health and age, employment history and qualifications, each party’s comparative income earning capacity and standard of living.

Step 4: Is the outcome Just and Equitable Questions?

• Q.       The court made an order where I can no longer run my home business? Is that Just and equitable?
• A.       The court must take into account all the circumstances of the case. Successful appeals have occurred where the court has not properly looked at the practical outcome of a court order where for example a husband has lost his income earning capacity due to making an order selling the family home and failing to consider significant business costs that would likely be incurred in the future due to court orders.

Family Trusts and Family Law.

In family law a common issue for clients is to establish whether or not trust property is to be included as property that may be divided between the parties to a relationship.

If it is not the court may still consider trust income as a future financial resource wghen deciding how to divide property for both married couples and defacto partners.

At common law trust property does not belong the trustee. The trustee holds the property on trust for the beneficiaries and has a legal duty to act in the best interests of the beneficiaries when managing trust assets. Most trust deeds give the trustee the power and discretion to distribute income and capital to beneficiaries as they see fit.

Each case is different and a common consideration for the courts is to assess the evidence and determine the degree of control exercised by parties to the marriage over trust assets. If the evidence suggests that a party to a marriage is exercising control over trusts assets as if it were his/her own property a court may be inclined to declare trust property is property that may be divided between parties to the marriage. For example a court may declare that a trust is a sham being used to avoid paying a partner money after separation. Other examples may include where a court finds that the person in control of the trust (for example the trustee) is acting under the direction of a party to a marriage.

In order to properly assess each case we need to review the following evidence:

A copy of the trust deed.

Any variations to the trust deed.

Who is the appointer of the trust.

Who is the trustee.

Who are the beneficiaries.

Details concerning any trustee companies including historical details of directors and shareholders.

In many cases it may also be necessary to join a company or other family member to proceedings if the matter has to be decided in court.

Family Businesses.

Another common issue in family property law is whether or not a business or an interest in a business forms part of property that may be divided.

The answer is yes a share in a business or partnership is property in most cases. In most cases it is the Husband who has a share in a family business or partnership. For example the court has held that a partnership interest in a law firm is property as well as family businesses. It is also common for family businesses to be valued in order to ascertain the proper value of property.

If this is the case you are entitled to discovery of financial documents including bass statements, tax returns, Balance sheets, profit and loss statements, receipts and bank statements.

The most important issue in cases where family businesses are involved is to review and request financial documents and more importantly to obtain a proper valuation for the business.

Mulligan Lawyers have extensive experience in child custody cases. We regularly act for parents, step parents and grandparents in order to resolve parenting issues.

We have successfully acted for clients in cases covering issues such as:

• Relocation matters.
• Issues concerning parental responsibility, access and time with children and long term welfare issues for children.
• Family violence cases including intervention order matters in the magistrates court.
• Defended false accusations of child abuse including sexual abuse and family violence.
• Drug Abuse and addiction by parents.
• Obtained favourable court orders for concerned parents relating to child custody.

Call us for a free consultation. There are often 2 sides to every story and we are here to listen to yours. Take as long as you need with a free initial consultation.

In the meantime see below for information concerning common custody issues.

Parenting Disputes.

If there is a dispute about who the children live with, access or time to seeing the children and who makes decisions in relation to the child this is referred to as a parenting dispute. Other common terms include custody or access. If children’s matters cannot be resolved then a person needs to apply to the courts for a parenting order pursuant to the Family Law Act. Often parenting matters may be resolved in 3 ways:

1. An informal agreement between parents regarding the children;
2. A parenting plan.
3. Applying for a parenting order under the Family Law Act.

Informal Agreements.

Ideally if the parents get along there is no reason why parents can’t communicate directly and have an informal agreement without the needs for the courts to intervene. If there is no parenting plan in place then under s of the Family Law Act there is a presumption of joint parental responsibility.

This means each parent has a duty to be involved in making long term decisions with respect to the welfare of the child.

Parenting Plans.

Parenting Plans are more formal agreements. They must be in writing and provide details in relation to spending time with the children, making decisions in relation to the child’s welfare and communication with the children.

Courts must consider previous arrangements under parenting plans when deciding parenting matters.

Parents may also agree on parenting matters and they can be formalised by a consent order application to the court. If this happens the parents do not need to attend court. The agreement and application is in most cases simply approved by the court.

While the aim is to resolve all matters without the need to go to court it is often necessary. In most cases the parties must provide a mediation certificate prior to commencing court proceedings. There are exceptions to the rule including urgency, allegations of family violence or there is a long standing dispute between the parents that cannot be resolved.

Important points for parenting orders under the Family Law Act:

• The court has a duty to make an order that is in the best interests of the child. It is not about a parent’s rights to see the children although this is an important consideration. This is a primary consideration.
• In most cases other than where child abuse and excessive family violence is proven, the court must make an order for equal shared parental responsibility. This means both parents are authorised to make decisions regarding major long terms issues concerning the children including education and medical treatment.
• It is possible where each parent cannot communicate and this has an impact on a child’s welfare that an order for equal shared parental responsibility will not be made.
• The court may make an order for one parent to have sole parental responsibility for a child. This means that parent can make all decisions regarding long term issues concerning medical treatment and education.
• If a court makes an order for equal shared parental responsibility then it must consider the child spending equal time or substantial and significant time with the other parent.
• Substantial and significant time usually means an order for at least overnight time on a fortnightly basis and mid week overnight time during school terms. This allows the non resident parent to be involved in the child’s weekly routine including school and weekends.
• Equal time orders are often subject to practical issues that include distance for travel of the children and routines.

What types of parenting orders can a court make?

A parenting order can be made by a court provided it relates to the children. This means a court can make orders for parents to do certain things in order to see a child including for example:

• Attending psychiatric treatment and assessments;
• Spend supervised time with a child;
• Drug and alcohol screens and testing for parents;
• Decision making including equal shared parental responsibility and sole parental responsibility;
• Who a child lives with;
• Time a parent spends with a child including overnight, daytime or after school, Holidays and special occasions (eg Christmas and Birthdays);
• Attending school and extracurricular activities;
• Attend anger management and post separation parenting courses;
• Family Therapy orders(parents and children go to counselling);
• Injunctions restraining parents from attending or going near places including school and family homes;
• Methods of communication with children including phone calls or skype;
• Change of child’s name;
• Location and recovery orders. This is where a parent has disappeared with the children. The court can locate the parent by accessing government agency databases and then serve an order for a parent to relocate or attend court from interstate.
• Change of name orders for a child where a parent is longer around.
• Orders for grandparents, step parents and other people with a close relationship to a child to spend time with the child or alternatively for the child to live with other family members.

When should you go to court and apply for a parenting order?

• There are allegations of family violence;
• There is an intervention order;
• False allegations of domestic violence;
• Allegations of child abuse;
• False allegations of child abuse.
• There are concerns relating to drug and alcohol abuse or use by one of the parents and you seek drug screening orders;
• There are concerns relating to a parents mental capacity to care for the children and you seek a psychiatric assessment. Alternatively there are psychiatric issues.
• You cannot agree with the other parent on spending time with the children;
• Children’s wishes are not met;
• A parent wants to relocate far away, interstate or overseas with the children;
• You believe the children are being subject to emotional abuse or parental alienation;
• You have completed mediation and cannot agree on future arrangements for the children. For example you cannot agree on schooling or medical treatment.;
• A parent has relocated with the children and you do not know where they live and want to commence spending time with them;
• Other matters need to be resolved including parental responsibility and decision making regarding the child;
• Department of Human Services has been involved with a protection order. That is about to finish and you want to spend time with the children.
• You are a close family member or grandparent and wish to see the children;
• You are a step parent and wish to maintain a relationship with the children;
• You seek an urgent injunction preventing a parent from travelling with the children until matters are resolved.
• A parent will not sign a passport application for overseas travel.
• You seek an order to change a child’s name.
• You generally require an urgent court order and have good grounds to apply.
• Special Medical treatment.

The definition of family violence is very broad. In Victoria the meaning under the Family Law Act is mush the same as the definition under the Family Violence Protection Act(Intervention Orders).

It may often be the case that both parents have engaged in family violence. If you have a court case you may defend the allegations in both Intervention order hearings and Family Law Proceedings.

In relation to Family Law proceedings, if family violence has occurred, it is important to admit what has occurred and show the court you have insight into this behaviour and seek to change it for the sake of the children.

Having said that in many cases parties often exaggerate or make false allegations in order to obtain an advantage in separation. It is therefore important to obtain legal advice in intervention order proceedings in the Magistrates Court. In some cases contesting allegations in a hearing maybe necessary as opposed to consenting to an intervention order straight away. When an intervention order is made against a party in most cases any form of communication with the other party that does not concern children for example can be a criminal offence and result in charges against you.

If you have any questions do not hesitate to contact us for a consultation.

FAMILY LAW ACT 1975 – SECT 4AB

Definition of family violence etc.

(1)  For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member ), or causes the family member to be fearful.

(2)  Examples of behaviour that may constitute family violence include (but are not limited to):

(a)  an assault; or

(b)  a sexual assault or other sexually abusive behaviour; or

(c)  stalking; or

(d)  repeated derogatory taunts; or

(e)  intentionally damaging or destroying property; or

(f)  intentionally causing death or injury to an animal; or

(g)  unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

(h)  unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

(i)  preventing the family member from making or keeping connections with his or her family, friends or culture; or

(j)  unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

(3)  For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

(4)  Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

(a)  overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or

(b)  seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or

(c)  comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or

(d)  cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or

(e)  being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.