Recently, the Australian Institute of Family Studies (‘AIFS’) released an Evidence Summary of a study it had conducted in relation to post-separation parenting outcomes. The Evidence Summary provides very interesting statistics regarding family law parenting outcomes that cast some light on the process. While statistics do not always tell the whole truth, they can indicate trends in the family law parenting process that may be helpful when determining the best course of action in your case.
Prior to commencing parenting proceedings, parties must make a “genuine effort” to resolve their parenting dispute with the assistance of family dispute resolution (‘FDR’): Family Law Act 1975 (Cth) s 60I(1). The usual form of FDR that parties engage in is mediation with an accredited FDR practitioner. Often this take places through services such as Relationships Australia, however parties can engage an accredited private mediator (who is often an admitted lawyer) to mediate their dispute as well.
It is not uncommon for a spouse to accumulate debt following separation. If your spouse is partying it up, spending money on extravagant items, selling investments and increasing their credit card debt, it can make the family law property settlement problematic. This is because all assets and liabilities are included in the pool that is to be divided between the parties, and the value is at the current value, not the value at separation. What can be done about debts incurred post separation?
In a family law matter whether it be in a lengthy litigation battle or attempting to settle matters outside of court, the most frequent issue that arises is not a question of law but of fact. Specifically, how much is a particular asset or liability worth. A valuation may then be required to resolve the dispute regarding the value of the item.
With the update of the Family Violence Plan in April 2019, the Courts have continued to recognise the importance of protecting those experiencing family violence, and the detrimental impact on the health and wellbeing of separating partners and children in situations of family violence.
Although the legislation relating to Financial Agreements seems clear-cut, Financial Agreements are often overturned or set aside by the Court for a variety of reasons. This makes it more difficult to guarantee that a Financial Agreement will indeed be ‘binding’. When considering the application and utility of Financial Agreements in practice, it is therefore prudent to weigh the advantages of entering into a Financial Agreement against the drawbacks or risks associated with it.
It is an interesting scenario when considering if the assets of a testamentary trust should be treated as property in a divisible pool of assets in a family law dispute. More commonly these issues have been considered in relation to inter vivos Discretionary trusts. There is however, a series of family law cases which help to establish key principles.
The Australian family law system is currently undergoing many changes, leading to a highly politicised and uncertain environment that has only exacerbated issues with the court system. While it may seem that governments and lawyers alike are the only beneficiaries of the inefficiencies of the family law jurisdiction, one form of alternative dispute resolution is on the verge of making a great resurgence that may make clients the real winner.