Family Dispute Resolution
(often referred to as mediation) helps parties to negotiate and reach an
agreement with the help of a Family Dispute Resolution Practitioner (mediator), Family Dispute Resolution helps make the separation process easy by ensuring that matters are finalised quickly and without the need for either party going to Court. Click this link (below) to get an understanding of the Family Dispute Resolution process and to get tips on how you can prepare yourself. How to Make Separation Easy - Family Dispute Resolution
For more help contact: SMITHSON LAWYERS GOLD COAST Suite 4, 26-28 Commerce Drive Robina QLD 4226 Ph: (07) 55 620 622 firstname.lastname@example.org www.smithsonlawyers.com.au
You and your spouse have most likely worked hard throughout your relationship to build up your assets. Whether those assets include a home, car, investments or superannuation - you want to make sure that when you move on from your marriage that you know what will happen to those assets.
How will your marital assets be divided between you and your spouse?
Four Step Process
The Courts generally adopt a four step process when making a decision in relation to the division of marital assets.
Step 1: Identifying and Valuing the Assets and Liabilities
To identify and value the assets it is first necessary to work out what property will be included.
What Are The Assets/Property?
Property is defined broadly and includes:
• Real property such as houses, units or land;
• Boats, Caravans, Trailers
• Business Assets
It is then necessary to determine what liabilities (or debts) both parties have. Liabilities may include:
• Car Loans
• Personal Loans
• Credit Cards
• Income Tax Liabilities
• Other loans
Valuing the Assets
Once it is determined what the marital assets are then it is necessary to determine the value of those assets.
Parties may agree on what the value of the assets are but when they don't it is necessary to assess the value.
Working out the value of an asset will often depend on the type of asset but it is the “fair market value” that is generally applied when determining an asset's value.
Determining the fair market value of houses and land can be achieved through the use of a licenced valuer. They will often write a report detailing the value of the asset based on supporting evidence (such as recent sales etc).
For cars, caravans and the like, valuations can be obtained from professional dealers who work in that industry. For example, a second-hand car dealership.
For other items such as cash or superannuation, statements from the financial institution or fund may be provided.
It should be noted that for items such as furniture it is not the insurance replacement value (or contents insurance value) that is used to calculate the value. Rather, it is the “fair market value” of the furniture in its current second-hand condition. A valuation may be obtained from a second hand furniture dealer to determine the value of each furniture item, particularly larger items if the parties are unable to agree.
As a general rule, a party seeking to include an item as an asset should produce evidence of its value. Formal valuations are preferred, where possible. Although obtaining valuations can be costly and time consuming, it ensures that incorrect values are not applied which may result in a party being short-changed.
Step 2: Assessing the Contributions Made by the Parties
The second step requires an assessment of each party’s contribution to the acquisition, conservation and improvement of the property detailed above.
Contributions can include:
• Financial Contributions;
• Homemaker Contributions; and
• Non-Financial Contributions.
Financial contributions can include any monies used towards the asset. This may include wages, monies or assets held prior to the relationship, etc. A party’s bank statements can often assist in showing this.
Homemaker contributions includes caring for the home or children, cleaning and all the day-to-day requirements of running a household.
Non-Financial contributions includes, for example, attending to repairs or renovations to the property such as to add value to the property.
Step 3: Evaluating Each Party’s Future Needs.
At this stage, the future needs of both parties will be considered. In determining a party's future needs, the following may be considered:
• State of health
• Income or resources
• Physical or mental capacity
• Homemaker – are they caring for children under 18 years;
• Responsibilities to support another person
• Care for themselves or others etc.
• Standard of living etc.
For example, if the Wife of young children cannot work because she has to stay home and care for those children then her future needs may be greater than the Husband’s needs if he is healthy and able to work full time.
Step 4: Just and Equitable.
The last step requires that any agreement or orders made are just and equitable (fair).
It should be noted that even where parties agree to divide their property that the Court may not accept that agreement if it does not consider that it is just and equitable.
Often clients say that they have reached an agreement that the assets be divided 50/50 even where one party’s needs are less than the other. Such as where one party is not working because they are staying home to care for young children. Even though the parties may have agreed to this, the Courts may not accept such an agreement if it is not just and equitable and accordance with the Four Step process.
Often in Family Law Matters involving children the Court will make an Order for the parties to attend upon a Family Consultant to obtain a Family Report.
Who Is The Family Consultant?
The Family Consultant is often a Psychologist or Social Worker with experience in family and children’s issues.
Do You Get To Choose the Family Consultant?
The parties may discuss and reach an agreement about who should be appointed as the Family Consultant. However, sometimes, the Court will nominate the Family Consultant and the parties will have no choice.
How Do I Find Out Who Is A Family Consultant?
The Family Consultants and Mediation Services has a list of qualified Family Consultants on their website. Follow this link for more information:
In most cases (unless the parties are entitled to Legal Aid or the Court orders the report) the parties will need to contribute towards the cost of the Family Consultant. The cost of the Family Consultant will depend on the person appointed.
Meeting with the Family Consultant?
The Family Consultant will make an appointment to interview the parties, the children and any other significant persons (such as partners who live with the children). There may be one interview or more, depending on the nature of the dispute.
Normally, the Family Consultant will meet with the parties individually so that the Family Consultant can get each party’s view without the other person present.
The Family Consultant will normally meet with the children of the relationship. Initially, this may be without the parents present but may later involve the Family Consultant viewing the interaction between the children and each parent.
Do I Have To Attend My Appointment with the Family Consultant?
If the Court ordered that you are to attend upon the Family Consultant then you must attend your appointment.
What Is A Family Report?
A Family Report is a report written by a Family Consultant which provides an assessment of the issues in dispute in a case. It can also provide a recommendation as to what should occur in the future.
Often in cases before a Court, the Family Report will be the first piece of independent expert evidence.
How Does the Family Consultant Make The Report?
In preparing the family report, the family consultant may consider the family’s circumstances, explore the children’s wishes, explore whether there is any family violence or abuse, consider any issues raised by either party, explore arrangements that will best meet the children’s needs, consider the interactions during the interview and anything else said or done during the interview process.
When writing the family report, the Family Consultant must focus on the best interests of the children.
It should be noted that the Family Consultant will consider everything you tell them during the interview and can report anything you say in the Family Report. Nothing is kept confidential.
The Family Report will be provided by the Family Consultant to the Court and the Court can use the Family Report to assist it in making a decision.
If the Family Report Is Against What I Want Does That Mean I Will Be Unlikely To Succeed?
The Family Report is only one piece of evidence that the Court considers in making a decision. It must also consider all the other evidence before it.
Do I Get A Copy of the Report?
Yes, a copy of the report is provided to all parties. A copy is also provided to the Court.