As I write this article we are in the midst of significant changes to the way we as Australians operate day to day. I have helped hundreds of people through their separation and divorce but right now we have an added layer of complexity with the current health crisis. So before I proceed with this article, it is good for you to know that while our team are working remotely, we are continuing to help our new and existing clients on the phone and can meet face to face online, very easily. Do not worry if you see yourself as not ‘tech-savvy’ because we have a way around that. We know that for many, being able to connect and see each others’ faces online will be helpful, particularly given the current climate. 
So, regardless of whether your appointment will be on the phone or online, your initial appointment with a family lawyer often comes at an emotional time in your life. It is completely normal to feel anxious about your first discussion or meeting and to have some fear about the unknown. Given what you discuss can be deeply personal, it is important you feel you are in a safe space to voice your concerns, get informed and know that what you discuss will be treated with the utmost confidentiality. 
As a family lawyer who has helped hundreds of people through this process, I have learned that there are a few key things you can do to prepare in advance of your meeting, in order to get the most out of your initial appointment.

Think about your goals
Before your appointment with us, take some time to think about your goals. A few ideas to get you started are to ask yourself the following questions: 

What’s important to me and my children?
What are my short or long term goals? 
What are my immediate concerns?
What am I most worried about?

These are questions I ask people either in their initial call or at the start of their first meeting. This allows us to work together to prioritise what is most important for you to share and focus on.  It is not a bad idea to make a list of your questions beforehand because when you are in the meeting and taking in a lot of information, it is easy to forget to ask something. 
Create a list of questions
Of course, as your lawyer there will be certain things that we are going to cover off as part of our discussion, but it is also a good idea, as you think of different issues before your appointment, to jot down any questions that come to mind. Sometimes there might be something important you want to share or something that you have been worrying about. If this is the case, jot your thoughts down and bring the list to your meeting. 
Even better, you could email the list to your lawyer before the appointment. We can then go through it and make sure we have ticked off everything that is forefront for you before you leave. 
Compile key information early on
It is important to be as prepared as you can for the meeting, particularly if you are getting advice or guidance about financial issues. Before the appointment try and gather any relevant financial history and put together, to the best of your knowledge, information about your assets, liabilities and superannuation that you and your partner own.
Sometimes that is not possible, where you don’t have access to that information.  However, if you can be prepared with the information that you do have, this will not only help to save you time and money but also allows us to give you more detailed advice in your first appointment.  This is because the fundamental first part of giving guidance around property settlement outcomes is to understand what there is to be divided and then work through how how you got there and how it might be treated. 
Here is a basic list of what is ideal to have for your first appointment with us. 

What you think your house is worth roughly and what you owe on it. 
If you have investment properties, think about their value and what you owe on those properties. 
Check your bank statements to identify the accounts you have and how much is in them. 
If you have other liabilities such as credit cards, personal loans or other business loans, check what you owe. 
Check your superannuation balances if you have access to statements (or do your best to bring along a ballpark figure).
Your income and if you know it, your partner’s income.

What is most important here is to seek advice early. Don’t delay your first appointment just because you do not have every piece of the puzzle on hand.  In the meeting we can talk to you about what the best approach to getting that information might be if you do not have it.
Consider taking notes or bringing a support person along
During your first appointment there can be a lot of information to take in.  Sometimes it is helpful to take notes along the way or even to consider bringing a trusted friend or family member along. During this COVID-19 crisis, if you’d like someone else to be invited into the phone or online call, please advise early so that that can be arranged. Somebody you would feel comfortable with and could be a second set of ears to help you to retain the information that is discussed. 
If you choose to bring someone along, think carefully about how comfortable you are with that person and whether you know they are likely to be a good support for you. It is important you don’t feel inhibited to be open with your lawyer because that person is with you.  We want our clients to feel as comfortable as possible during an initial appointment, so bringing a close friend or parent is not uncommon. 
As a family lawyer, we appreciate a separation is deeply personal. The more relevant information you are able to share with us the better we are positioned to give you the best advice.There is never any judgement from us, so if you have any concerns or worries, you are better off letting us know that information so we can take that into account. When we are able to understand your individual goals and concerns we are able to make the most of the initial appointment rather than taking a more general approach. 
Despite other elements of our lives being impacted by COVID19, it is still important for us to be able to continue to assist you to progress your family law matter, and we have the contingencies in place to support you and our team to do so. The Phillips Family Law team have processes and procedures in place to allow our team to work remotely to enable us to continue to provide you with a high level of client service.
If you found this article interesting, leave a comment or share it with your team, colleagues and clients. Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here.
 Written by Fiona Caulley, Accredited Family Law Specialist, Director, Phillips Family Law
The post How to get the most out of your first appointment with a family lawyer (while also managing the ‘new normal’) appeared first on Phillips Family Law.

Here at Phillips Family law, the health and well-being of our clients, our team and the community is extremely important to us so we are implementing processes to minimise any risks or disruption in relation to COVID-19.
Despite other elements of our lives being impacted by COVID19, it is still important for us to be able to continue to assist you to progress your family law matter, and we have the contingencies in place to support you and our team to do so. The Phillips Family Law team have processes and procedures in place to allow our team to work remotely when required to enable us to continue to provide you with a high level of client service.
To ensure the care of both our clients and our team, we will be minimising physical in office meetings by making best use of technology. We recommend that meetings are done so via phone or video conferencing, and our team have processes in place to arrange this for you.
Moving forward, when making contact with Phillips Family Law we kindly ask that you:

Use phone and/or email as your first point of contact with us;
Let us know if you are feeling unwell, have travelled overseas in the last 14 days, and/or have been in contact with anyone who has been overseas in the last 14 days or is unwell; and
Let us know if you become unwell within 14 days of having been in our office.

Our office hours and contact details remain the same and have not changed.
We will continue to keep you updated, however we look forward to being able to continue to assist you.
Tony Phillips, Managing Director and Fiona Caulley, Director.  
 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here.  
The post Managing COVID-19 concerns and progressing family law matters appeared first on Phillips Family Law.

As an accountant, financial planner or lawyer, you are often the first point of contact for someone when they are separating. Being family lawyers, our firm has seen many ways people can put themselves at a disadvantage before they separate. We share them with you here to provide some context to what your client could be going through and how you can assist them in the process.
Emotions getting the better of them
When someone is in the very early stages of separation emotions can peak. This can make it difficult for a client to accept legal advice they might be given because they may not be psychologically ready to accept what is shared with them. 
Additionally, it might be difficult for someone at this stage to understand the advice being given. Say, for example, someone receives written advice from their accountant, planner or lawyer, they could read it but not understand or be accepting of it due to emotional reasons. This is why creating a trusting open dialogue between you and the client, who is feeling vulnerable, is important.
Communications negatively impacting parenting matters
If a break up causes emotional hurt to someone, at times the overriding emotion may be the desire to punish the other person. Any Australian family lawyer would convey that the underlying premise is for children to have a relationship with both parents. 
If you are the first contact for someone considering separation then directing them to resources such as therapists, counsellors and divorce coaches is something we can do. This assists people in working through emotional blocks so they are more able to readily accept the concept of co-parenting.
Another common issue that arises in the early stages of separation is someone being unable to communicate in a constructive way with the other party. Being able to communicate for the benefit of the children, rather than ‘sticking it’ to the other party, can be hard for people in the early stages of a difficult separation.  Sometimes you might have to encourage your client to run their communication by their lawyer first to get some assistance with neutralising the language, rather than sending an angry, bitter email that inflames the issue or may detriment them later. 
Not formalising financial arrangements
Early on when a couple is separating it can be common for people to not want to exacerbate their situation or cause friction, so they make informal arrangements regarding finances. However, we strongly advise our clients about the need to take advice before committing to arrangements and, if the arrangements are appropriate, formalising these arrangements.  We often see amicable situations turn sour quickly and “all agreements are off”. 
How a family lawyer helps to reduce disadvantages
Within our firm, we have seen examples of clients asking us for initial advice when they are not ready to receive it and then taking a course of action later that puts them in a place of disadvantage. For example, we might tell a client to not move out of the house and then when they come back to see us three months down the track, they inform us that they have gone ahead and vacated the family home – which then ends up technically or strategically disadvantaging them. Timing is also important. Our advice at one point is based upon the most up-to-date information. If we provide advice later on, when circumstances have changed even slightly, it could mean the advice is no longer accurate.
A good family lawyer is not just somebody who understands the law and can tell you what the Family Law Act provides or does not provide. They are also a strategic thinker and problem solver who will consider what is best for children and families overall and help a client to determine their goals and how they want the separation to run. 
If someone is closing down bank accounts and not communicating well then it is common for this situation to become litigious. Conversely, a family lawyer may caution a client who is being overly accommodating and putting the other person in a position where what is being provided becomes the expectation to continue moving forward. As an example, someone might agree to keep paying the other party a ‘wage’ each week in the hope of a reconciliation or that the other party will be more reasonable in the negotiations. What can happen though is when the client wants to stop paying the ‘wage’ the situation escalates quickly because the other party has become accustomed to a particular lifestyle and there is no incentive for the other party to reach a property settlement if their lifestyle is going to be negatively impacted. 
How you can best assist your clients
As an accountant or financial planner with a client going through a separation, you might become aware they have spoken to a lawyer for initial advice. When you are working with them you want to be asking your client if their approach is consistent with the advice they received or if they have been back to their lawyer and updated them on any changes in circumstances.
For example, a lawyer might provide pre-separation advice and suggest a certain course of action, but then when they are talking to you as their accountant or planner down the track their circumstances might suggest an alternate approach. That is where it is important for all parties to know about a significant change in circumstances so there can be updated advice provided in a timely manner.
If you found this article interesting, leave a comment or share it with your team, colleagues and clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here. 
Written by Tony Phillips, Accredited Family Law Specialist, Director, Phillips Family Law
The post Common ways people put themselves at a disadvantage before (or as) they separate appeared first on Phillips Family Law.

Separating from your partner, particularly if children and property are involved can be an emotional experience. As a family lawyer, there are some typical questions I am commonly asked when someone has just separated or they are considering separating. 
There are also some common mistakes that people make in the separation process. This article explores these questions and mistakes while recognising there is no set approach as each family law case is unique. 
How long will the process take and what will I get?
While these are commonly the first questions asked of a family lawyer, there is no one size fits all answer when it comes to family law. As a lawyer, I give advice that is tailored to specific circumstances. 
What is important for you to be aware of is that your separation may take some time to come to a resolution. If you hope your matter to be all wrapped up in a week, be aware that is just not going to happen. Some matters are able to be resolved within a couple of months and some cases can take years.  The timing and best process for you will depend on the approach adopted by you and also by your former partner. 
If children, properties and businesses are involved they each add layers of complexity and therefore time.
What will it cost? 
This will depend upon the work to be undertaken by the solicitors and how far through the process your matter goes. Many couples will reach an agreement through mediation, while others will need to go to Court. If one party’s behaviour is not cooperative in the negotiation process, then costs can increase. Typically you could expect your costs will be greater if Court proceedings have to be instituted.
Where else can I get help?
For clients that are dealing with a messy or emotional separation I recommend, in the first instance, they speak to their GP and ask for a referral to a counsellor that is appropriately qualified to deal with the issues that they are wanting to address.  Alternatively, your lawyer often has connections with particular counsellors that deal with separation-related issues and may be able to recommend someone to you. 
If domestic violence issues are involved and a client is in immediate danger, they should call the police. Otherwise, DV Connect is another service that can assist. 
What do I need to do now?
Firstly you need to think about where you are going to live and if children are involved, what the parenting arrangements are going to be. You need to consider how you will access funds and start to gather documents that are going to be relevant. This can include paperwork such as your and your children’s birth certificates, passports and marriage certificate. If you do not have these then you should consider ordering copies.
Also take the time to gather any relevant financial documents like tax returns, payslips and bank statements, because you will need the information from these documents as part of the financial settlement process. Not having access to these documents will slow down the process later when you really want things to be moving along. So start collating them now. 
At the beginning of the separation process, I see four common mistakes that people make at the time of separation. If you are considering separating, taking a considered approach can save you time and stress over the medium term.
Mistake 1 – Moving out of the family home without understanding the implications
Before seeing a lawyer, clients often move out of the family home without understanding the implications. Whether you own a property jointly with your partner or if it is owned in one of your individual names, it will be included in the property pool to be divided.
If you opt to move out of the property, it may be difficult to get access to the property again. If you only take your personal belongings with you when you leave, then it can be very difficult to get furniture and other household items you need to set yourself up in other accommodation. So while moving out does not affect your rights to the property in terms of the settlement, on a practical level it can be difficult to get back into the property.
If the home is going to be sold and you move out then the other person is really in charge of getting it ready for sale. While you can have orders or an agreement that provides a mechanism for what is done in terms of the sale, such as carrying out any works or minor repairs, ensuring that the party who remains in occupation of the property complies with this can be difficult, which may mean the home is not adequately readied for sale, which can have an impact on the sale price you can achieve.
So deciding whether to move out is a tricky situation, because there are equally as many issues that come with people living separately under one roof. Tension often builds when you continue to reside with someone you have separated from so there are trade-offs in both scenarios. So it is not a situation of remaining in the home at all costs, you just need to be aware of the implications of moving out. Where there are issues with domestic and family violence, your personal safety should be a priority in which case leaving is likely to be the best course of action. 
Mistake 2 – Losing access to funds
Think about how your finances are structured and how you are going to pay for the cost of living, particularly if you do not have the income to do so on your own. Whilst your lawyer may be able to assist you to get access to funds by way of spousal maintenance or other interim financial support this will likely not happen overnight in which case you will need to have a plan to ensure that you can pay for your immediate costs of living such as rent, groceries, petrol and bills. 
This could involve putting funds aside prior to separation, re-entering the workforce, looking at what Centrelink and child support benefits you are entitled to or borrowing funds from family members or even applying for a credit card on a low-interest rate to tide you over.
These actions can help to give you a buffer until you have the time to engage a lawyer who can help you with getting access to spousal maintenance and come to a final financial settlement. 
Mistake 3 – Denying access to children
Leaving the home with kids and not telling the other person where you have gone and how the kids are doing can create a high level of anxiety and conflict and has potential to escalate things quickly.  Where there has been domestic violence these actions may be justified but it is important to obtain advice about where you stand. Where safety is not an issue, then denying access to children is not appropriate and may have ramifications. 
It is best to keep the lines of communication open and look to maintain contact with both parents. Obtaining counselling or a dispute resolution process as soon as possible after separation can help you to at least work out a short term arrangement that stops the situation from becoming unnecessarily inflamed. 
Mistake 4 – Inflaming the situation 
How you deal with the situation when you first separate often sets the tone for how the whole settlement process will pan out. For example, if you strip all the money from the bank accounts and clean out all the furniture from the family home, the other person’s reaction is unlikely to be favourable or co-operative and that can really set the tone for how things move forward and make it harder in the long run.  For this reason, be mindful of your actions, consider the pros and cons and the potential implications before you act. 
So while no separation is easy, it is helpful to pause and think things through so that it does not negatively impact you down the line. If you can look to remain sensitive to the situation then a satisfactory resolution for everyone involved can often be reached quicker. Plus you may increase the chance of avoiding the matter going to Court. 
The best chance of a desirable outcome following a separation is to know right from the beginning what actions you should take in terms of gathering up documents and making a decision about where you will live. By talking to a lawyer in the early stages before you separate, and getting informed early you could save yourself from making common mistakes that cause unnecessary stress and tension throughout the separation process.                 
Related: Why you may need to be cautious of the ‘amicable’ separation
About to separate? 5 key considerations you need to know
How a friend’s divorce advice could cost you
If you found this article interesting, leave a comment or share it with your team, colleagues and clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here. 
Written by Charlotte Paterson, Lawyer, Phillips Family Law
The post Before you separate: What to ask a lawyer and common mistakes explained appeared first on Phillips Family Law.

While there is no typical day in my life as a family lawyer, I do like to bring some structure and routine to my work life where I can. In fact, the whole firm does so with measures put in place for us to have consistent breaks and a regular check in with the wider team. 
Despite what it might look like in movies, very little of my time is spent in court. Instead, I more often than not, am working in my office.  Here is a rundown on how my days look as a lawyer specialising in family law. 
Early morning
I generally get up and go for a walk along the Brisbane river because I live close by. It’s a great way to start the day and then I will walk into work. On the walk to work, I enjoy listening to all genres of music as it gives me some downtime before the busyness that comes along with client calls and being on the computer, starts for the day.
Starting the office day right
I arrive at the office around 8am most days. This gives me a bit of time to prepare for the day before client calls start to come in.  A few times a week the firm has an 8.30am meeting with all lawyers and paralegals present. It is great because it gives us all an opportunity to bounce ideas off the other solicitors in the firm as to what is going on with each case. 
We are given the chance to raise any concerns that we have about any matters and it acts as a bit of a think tank involving the whole team. It’s something I’ve never done on a regular basis at any other law firm, but it’s always been so beneficial and helps me to continue to improve in my role as a family lawyer. 
In those meetings, people within the team might recommend different ways to go about matters or confirm that you are taking the right approach on certain matters. This benefits our clients too as they are getting options and ideas on their case from other solicitors in the firm, at no extra cost. 
Family law is a discretionary area, so it is important I seek the advice of others I work with to make sure I can give my clients a range of outcomes that is relevant to their matter. For example, a client might ask what they are entitled to by way of property settlement or ask us what we think the court would do in terms of making parenting arrangements for their children. Three different lawyers could give three different answers based on their past experiences.  So when everyone is in the room, there are other lawyers thinking along with me about the various things that could happen, what to keep an eye out for and that helps to get a broader view of where my client’s case could go.
I was very fortunate when I was a graduate lawyer, I worked for another firm and had a wonderful mentor who helped me. But I have heard so many stories about people who are just left to their own devices.  They do not get that access to senior lawyers like Tony and Fiona here who have been doing this for decades. I have grown in terms of my own knowledge and the way that I approach cases because of these regular meetings each week.
The meetings also allow the team to celebrate their successes. If something has gone well on a matter, it is an opportunity for everyone to recognise the good work that another solicitor has done. It is a really positive experience and something I quite look forward to because I know if I have a question, I have a scheduled time to ask it. It also gives me the time to plan my day and get clear on what needs to be done.
Days in court are rarer than you might think
I’m probably in court on average about once or twice a month, sometimes more, sometimes less depending on what’s going on. Court is really a last resort for us so I like to keep most matters out of court if I can. But if I am in court, I generally like to get there early so I can get a room to sit in with my client rather than spending the day in the foyer. I will either have a meeting with a barrister before 9am or if I am doing my own advocacy I will meet my clients around that time. 
Tackling the big jobs first
Because court days are rare, most of my mornings are spent in the office. The way I like to manage it is that I do the big jobs first up, such as drafting letters of advice, final orders, financial agreements or affidavits. I do these heavier tasks in the morning because I find that my mind is fresh. I can really concentrate and sometimes I will switch off my emails so I can focus on drafting a particular document without interruption. 
What I tend to do is block off an hour to an hour and a half, and let the team know to hold my calls. Obviously if there is anything urgent, they can put them through to me but often my clients can speak to my paralegal to leave a detailed message and arrange for me to call them back later that day. That way the paralegal can get as much information about what the client wants to speak to me about and it minimises the time the client is on the phone to me because I can have a think about what is required before calling the client. This gives them a more considered response.
Morning tea 
As a firm we all stop for morning tea at 10.30am. This gives our brain a reboot and we have some time to catch up with colleagues for some mindless chatter on silly things like what has happened on The Bachelor.  I’ve never had a break like this before at other firms, but I find it really useful. Everyone gets a chance to have personal conversations about different things as opposed to people speaking throughout the workday. 
After this break I feel back on track and ready to focus again on completing more time consuming tasks before lunch. 
Lunch time
For the first time in my entire career I’m at a firm where we all stop and take a lunch break. Pretty much everyone stops at the same time, and we have a kitchen area where everyone goes to enjoy their meal together. Some days I will go out and go for a bit of a walk to get some fresh air. I find it is really good to break up the day because I need a break by that time. It lets me refocus on what needs to be done at the end of the day and gives me a chance to feel re-energised.
Making good use of the afternoons and early evening
Afternoons are generally where I will be calling clients and having meetings, plus seeing if anything else has arisen during the day. I will go in and speak to Tony and Fiona if I need to discuss anything with them. They block out time in their diaries for this specific purpose which is always handy.
Sometimes late in the afternoon, or shortly after 5pm there are family law seminars or family law related meetings to go to. I will go to one of them probably once or twice a month. This gives me a chance to catch up with other family law solicitors or barristers. It is really important with family law being such a small community to have those professional relationships with the people that you work with on the other side of matters. I think often it makes it easier to resolve the matter if you know who the other solicitor is and how they practice. 
It also benefits my clients as well because I can give the client a bit of an idea as to how I anticipate their matter is going to progress, subject to who the other solicitor is on the other side.   I know sometimes clients get a bit uncomfortable about the fact that outside of work you may catch up with the solicitor on the other side, either at a professional networking event or at a seminar, but I think it is actually really crucial those relationships are formed.  At the end of the day we want to get our clients matters resolved. So if you know the best way you and the other solicitor are going to work to resolve the matter, that is really important.
The other seminars I attend might be about a family law topic, case updates in terms of what is happening or new developments in the law. It also gives me a chance to brush up on vital skills such as presenting or preparing a case or resolving a case. Family law is an ever evolving area and things change quite regularly, so it is really important in order to be the best lawyer I can be, that I stay on top of developments in family law, so I can give the best advice and representation for my clients.
I have just been elected to the board of the Family Law Practitioners Association of Queensland, so I anticipate my 2020 will involve going to those meetings and their events. I am really excited about it because it is a way for me to be able to give back to the family law community and to be able to work with the board.
Outside of work 
Sport and travel are my main loves outside of work. My height impacted upon me being able to excel at sports at school but I have always been a keen spectator. Netball and rugby are a favourite and I am a season ticket holder for the Queensland Reds so you will often find me at games.
On weekends, I like to go out for breakfast or brunch on most Saturday mornings and I spend about two hours at breakfast reading the papers and Vogue. I find that it is a really nice way to start the weekend and unwind. Then I might catch up with friends later in the day. I really like Howard Smith Wharves and regularly go down and sit there of an afternoon on the lawn. I also enjoy going to the theatre and am looking forward to seeing many of the shows that are playing this year in Brisbane.
I also love to travel abroad. After living and working in London for two years, I made friends who live all over the world and definitely developed the travel bug. I did three overseas trips in 2019 to spend time with friends and see new places. I went to New Zealand where I uncharacteristically hiked Tongariro Alpine Crossing, London where I attended a family law conference although the highlight was seeing Celine Dion in concert at Hyde Park and I also did a small road trip through America. I am working on when I will be able to take a trip this year too.
How I came to join the Phillips Law team
Just after I graduated university here in Brisbane I originally thought I wanted to do criminal law. However, someone I knew who was working in a family law firm in Toowoomba let me know about a job opening there for a graduate family law solicitor.  
I went to this interview in Toowoomba and I got along well with the people who interviewed me. That afternoon they offered me the job. In the space of three days I packed up my house in Brisbane and moved to Toowoomba, thinking I would only stay there for a year. I ended up staying in Toowoomba for six years and have been in family law since then. I worked in a family law firm in London for two years before I started at Phillips Family Law in 2017.  
Now, I cannot imagine doing any law except family law. I like that it is constantly changing and that I am intellectually challenged every day because I have to problem solve different scenarios. I really enjoy being able to find different resolutions that suit different people because not all people are the same and not all family law matters are the same.  
It is also great to work in a role where I am not chained to my desk in front of a computer from 8.30am to 5.00pm. I go to court, mediations, meet with clients, my day is broken up. I would describe myself as being a people person, so I thoroughly enjoy having this interaction. 
What is most rewarding about being a family lawyer is that I know it is one of the most difficult periods that my client will ever go through in their life. So being able to guide someone through that and see them come out at the end of their matter with a resolution and clarity about how their life is going to be moving forward is something that makes me feel like I am contributing in a positive way to someone’s life.
Related: My day as a family lawyer – Gareth Walters
If you found this article interesting, leave a comment or share it with your team, colleagues and clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here.
Written by Stephanie Wilkinson, Senior Associate, Phillips Family Law 
The post My day as a family lawyer – Stephanie Wilkinson appeared first on Phillips Family Law.

As a real estate agent, you are often faced with selling a family home following the separation of a couple. Each sale is unique because it depends on a range of factors, such as how involved each party is in the sale of a property and where they are in their separation process. 
It could be that you are involved very early in the separation and the separating couple have an agreement in place about a sale that is happening further down the track. You may even be faced with some resistance by one person who is reluctant to sell the property. This can make it tricky for real estate agents because you can be caught in the crossfire at times. 
If properties are jointly owned in both names,  you are often having to deal with two separate people and need to get agreements about things like how much a property is listed for, what the sale price is, and whether one or both of them are prepared to accept offers. This can be a real problem if you are effectively trying to work between two people who may not share the same view or be communicating effectively with each other or even communicating at all. 
Selling a property during a divorce looks quite different from the situation where you are acting for a couple who are happily married and are likely to be of the same view about things. While I am a family lawyer, I am very aware of just how tricky it can be for a real estate agent to sell a home during a divorce. There is often an increase in the amount of communication you, as an agent, need to do. You need to be aware of the potential issues that can arise in these circumstances. You want to be able to help both people and ensure they feel heard, but also protect yourself as you go through the process. 
Acknowledge these sellers needs are different from other sellers
The key part of selling a home for a separating couple is acknowledging your clients may have different needs and one or the other may have a vested interest in things progressing a certain way.  When people have separated, it may be that one person is further along the path of accepting that a property needs to be sold or there might be some history about how they have come to that agreement. So it is about being aware there may be resistance and then getting an early understanding of where each person is at and how they have come to an agreement around the sale of the property. 
Try to ask questions early about what each client’s expectations are regarding how you approach things. From the outset explore what the resistance points might be, acknowledge those points and get information that might assist you to make the process go more smoothly. You will need to keep in mind that you have obligations where properties are jointly owned to be communicating with both parties. Both parties want to feel that they are receiving the same level of communication as the other person is getting. 
Whether it is the case or not, there will be times where clients feel they are receiving less favour or communication. Or one client might not feel that the other person is presenting the property in the best possible way or allowing access for inspections. There can also be a disconnect between what one party believes the property is worth versus what the other person thinks it’s worth,  creating an inability to get consensus on a list price or how the property should be marketed. 
Know if a consent order or financial agreement is in place
As an agent, it can be helpful to know early in your engagement with a separated couple as to whether there is a legal agreement that has been formalised or if a consent order is in place that outlines the mechanisms for the sale.  If people have already reached an agreement, or are at the tail end of it, this document serves as a blueprint as to how the sale should occur. Being aware as to whether they are at that stage or not, and getting a copy of any order, can make your job as the agent easier.  
These formalised agreements are designed to help minimise disputes between the two parties. Typically there would be a series of clauses that are set up as default or an automatic consequence that would apply if the husband and wife cannot agree. These orders include details such as which agent should be used, what the list price should be, whether there should be periodic reductions in price and if there are arrangements for the property to go to auction in the event that the initial process doesn’t go to plan.  Often where there are already lawyers are involved assisting one or both parties, a copy of the Orders may be provided to you upfront. 
For you, it is a matter of being aware of whether such a document exists and this may provide you with some assistance or guidance about how to navigate issues that arise. If no such agreement is in place and each party are in conflict this could be a good opportunity for you to suggest that they each seek out family law support.
Overcome stumbling blocks with the support of family lawyers
Suggesting to your clients to seek out the support of their family lawyer may help to resolve some of the impasses. If clients are not yet at that final stage of formalising an agreement, this time can be used to work out how to market the home, or how to reach agreements on the sale of the property. 
Sometimes it might be that there is an offer on the table but one person is refusing to co-sign so there are options for that person to get advice about what action to take at that point.  The difficulty with bringing up these kinds of concerns when an offer is on the table is that issues cannot always be resolved quickly. So, being proactive at an early stage about where your clients are at in the process will hopefully alleviate some of those issues that often come up later in the process. But there are times as an agent where these types of sales will require you to be more patient about the process, than a more typical or straightforward sale. 
Be transparent throughout the process
When you are put in the middle of two people with different options it can be hard to not be pulled into the conflict. If there are differing opinions between the parties, it helps to be transparent throughout the process by providing information to each party. This could be as simple as sending joint emails so that everyone is on the same page and knows what is happening and why it is necessary. 
This helps you to minimise the time taken dealing with duplicate communications and make things more efficient, creating the best chance of the sale processing smoothly. What is likely however is that you will be communicating more with these types of sellers than with your typical seller.
If you found this article interesting, leave a comment or share it with your team, colleagues and clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here. 
 
Written by Fiona Caulley, Accredited Family Law Specialist, Director, Phillips Family Law
The post Top tips for real estate agents: Keeping a property sale on track during divorce appeared first on Phillips Family Law.

When people facing separation elect to do their financial settlement without a lawyer, they are commonly motivated to save money and avoid the litigious process. Some of people can run into problems and they typically fall into one of two categories:

People who do an agreement without lawyers and don’t formalise it; or
People who formalise their financial settlement but do it themselves without advice or assistance from lawyers

It’s not uncommon for us to see people who later have an issue with their financial settlement who have taken one of these options. Often parties will realise that the settlement they agreed to take is below their entitlement; the other party has exhausted their share of the agreed settlement and come back seeking additional funds, or the other party hasn’t honoured the terms of their agreement. 
Clients who say they have agreed on their financial settlement? A word of caution.
For many separating couples their key assets are their home, superannuation, vehicles and house contents. They will often make an agreement between themselves to sell the home to pay off the mortgage and then split the proceeds from the sale of the home. Each keeps their own super and cars and they divide the contents between them.
When people don’t seek legal advice this seemingly straightforward division can become problematic because the division may not really be appropriate based on their circumstances. One person may not be aware of what they are entitled to. A 50-50 split may seem fair initially but might not be adequate if, for example, one person has been at home raising children while the other has stayed in the workforce, developed their skills and increased their earning capacity.
Why formalise a financial agreement?
A formalised financial agreement is either the drawing up of consent orders to be filed with the Court or a BFA – a binding financial agreement. On average we see about 90% of financial settlements formalised by consent orders and the balance by binding financial agreement.
If a separating couple haven’t formalised their settlement through either consent orders or a binding financial agreement – there is always the risk of one person coming back for what’s often referred to as ‘a second bite of the cherry’. This is where people elect to contest the financial settlement that had been agreed upon and often occurs when one person uses up their settlement and down the line returns seeking additional financial support.
It is not uncommon to see people that have remained separated for many years but are not divorced. If this is the case, if one party wishes to, they have the right to bring an application to the Court and contest the original informal settlement. In particular, we see many instances where people wish to revisit their informal financial settlements if they become aware that they may have been eligible for spousal maintenance.
What is spousal maintenance?
Spousal maintenance is a periodic (weekly or monthly) amount that is paid from one party to their former husband or wife in circumstances where that party is unable to maintain their existing costs of living, up until a financial agreement has been formalised.
By not tying things up formally people can discover that they have a situation where, after originally splitting up the proceeds from the house sale they later receive a letter from their former partners’ lawyer detailing reasonable weekly needs and requesting payment of periodic spousal maintenance.
When spousal maintenance is dealt during the settlement process, typically these payments continue t until there is a formalised financial settlement. If spousal maintenance is brought up later as something that should have been included, and the couple are not yet divorced, then spousal maintenance decided on by the Court can go on if not indefinitely then for much longer than anticipated.
There is always risk when people fail to formalise their financial agreements. 
Formalising a financial settlement without a lawyer?
It is not uncommon for people to reach an agreement with one person having no legal representation or advice or sometimes with neither of them being represented
If people formalise their financial agreement but do not involve lawyers, their orders are easier to set aside. If, for example, one party gets legal advice and the other does not, in the absence of proper legal advice that person may be granted the opportunity to reopen the settlement process.
As financial advisors you will be aware of the additional costs that can be incurred as a result of the sale of an investment property. People can find themselves significantly out of pocket when they discover that the transfer of a property results in them needing to pay stamp duty and capital gains tax.
If there is no court order or no BFA, then there is no opportunity for rollover relief or stamp duty relief..
For financial planners and accountants who have clients who are intending to, or have already separated from their partner, the first step is to ensure each client is referred to a specialist in family law. It is most important that they seek advice from a lawyer who specialises in the complexities that exist in family law. Secondly, we recommend that as trusted advisors you insist that both parties document and formalise their financial settlement.
By not formalising a financial settlement, there is no finality. For those of your clients who have concerns about the cost of engaging a lawyer to negotiate a settlement, know that most times people seek advice at the front-end and the back-end of the process. First they seek advice about their situation and, once they’ve been to their former partner to negotiate, they bring the agreement back to us for consideration and review if needed. Then we take steps to formalise the financial settlement. That way together we can ensure it is final, binding and compliant.
Related: Binding financial agreements as an estate planning tool
Maintaining relationships with separating couples as an accountant or financial planner
Accountants, Financial Planners & Lawyers: What I’ve learned over 35 years as a family lawyer
Accountants, Financial Planners & Family Lawyers: Working together for the optimal client outcome
If you found this article interesting, leave a comment or share it with your team, colleagues and clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here. 
Written by Tony Phillips, Accredited Family Law Specialist, Director, Phillips Family Law
The post Financial Settlements without a Lawyer appeared first on Phillips Family Law.

Christmas after divorce can be a challenging and emotional time. It can be an equally challenging and emotional time if you are having relationship difficulties and contemplating a separation. But, if you have already made the decision, it might be the first holiday period when you are faced with contemplating not celebrating Christmas as a family unit or perhaps being at some distance from your children on Christmas Day.
There are many different arrangements that we see people creating for the holiday season. Many opt to tailor the arrangements to family circumstances depending on traditions and how they have celebrated in the past. 
What is really important at this time is to try to to minimise disagreements by communicating beforehand. 
Having helped hundreds of parents navigate this very tricky time of year in the past, to help you in the approach to the holiday season, I have four recommendations for you that have proven helpful to other parents when facing a very different festive season.
 
1. Plan arrangements well in advance
Consider having an early discussion about what the plans are, how you will navigate arrangements for the children and how they can spend time with both of you. Try to be as specific as possible when you do reach agreements so that the chance of miscommunication is minimised to avoid impacting you or the children down the track.

It is also helpful to take a cooperative approach. If there is a particular event that you know is important to the other person’s family, being mindful of this can will hopefully lead to some return of favour down the line. If it is your family who has an important event, look at negotiating respectfully with an offer of another event or occasion that is important to your former partner.
There are a variety of different arrangements that separated parents come to. One parent might have Christmas Eve and then there is a changeover for the children to go to the other parent sometime during Christmas Day. There is no ‘one size fits all’. Some people agree for one parent to have the whole of the Christmas period if it is difficult for them to share the day and then alternate the following year. It depends on what your circumstances are including the distance between the two of you and what other celebrations people have with their respective, extended families as to how that model works. It is not easy, but what is clear is that it does require some compromise.
Ensure you plan for communication with the children during this time. Knowing when the children will phone, Skype or Facetime is helpful for the parent not with the children but importantly, for the children as well.
If you can start discussions on a good and positive note, that will possibly put you in good stead down the line.
2. If an agreement can’t be reached, seek advice early
If you can’t reach an agreement, think about taking some action early and getting some advice about what your options are for holiday periods in the future. That way you can get some clarity about where you stand, get some assistance in how to negotiate arrangements, even if it is too late for this approaching holiday season.
Aim to reach an early agreement so that you avoid tension before it arises and listen to and be guided by, the children’s wishes. Put the children’s desires ahead of your own and get some help if you can’t reach an agreement, seek some counselling or advice from a family lawyer to help you craft a parenting plan that will assist in helping you avoid some of these difficult moments down the track. Being proactive about this rather than reactive will assist to minimise issues in future. 
3. Your children will need some help
Despite how difficult it may be, your children may need some help either by you offering reassurance about the new arrangements or practically, in getting a gift for their other parent or the other set of grandparents. Put some thought into how you can assist your child so that you can start things off in a proactive and positive way that will help lay good foundations for a positive co-parenting relationship down the line.  If a child is reassured by you that you will be okay, that will usually assist them with adjusting to the arrangements also.
4. Think about planning for new traditions
Mentally preparing yourself for the fact that this year might be different to the past is important. If the children aren’t with you, consider how you can keep yourself busy rather than being at a loose end. Planning some self-care and activities in advance will be helpful. 
Write a list of activities you would like to do, whether it be hiking, cooking, reading a book – whatever it is that will restore you – and plan what you will do with the days that you expect you will need some self-care. Ensure you include activities that mean you will connect with others rather than be alone and plan in advance. 
 
Whatever agreement you reach, if you formalise it in a either a parenting plan or a consent order, it is likely to minimise that kind of conflict down the line because you will have a blueprint to work from. These formalised approaches will still allow you to have flexibility by agreement moving forward. 
So, aim to reach an agreement early on to avoid tension, be guided by your children’s’ wishes, seek help if you can’t reach an agreement and ensure in all of this, you plan ahead for your own self-care this holiday season.
 
If you found this article interesting, leave a comment or share it with your team, colleagues and clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here. 
 
Written by Fiona Caulley, Accredited Family Law Specialist, Director, Phillips Family Law
The post Surviving the festive season as separated parent appeared first on Phillips Family Law.

When a couple separates and begin the process of identifying and valuing the assets in the pool for division, if there is a family business, this can become an area of contention.
From my years of experience assisting either the business owners or their spouse, people sometimes have inflated opinions of the worth of a business. It can often be attributed to people having paid too much when they originally bought it or having an inflated number in their mind about what they think they could sell the business for in the future. A Court however looks at the value of a business based on what it could be sold for in the current market and often that figure can be less than one or both parties may have expected.
In this instance we’re talking about trading businesses. Whilst some businesses are valued on a net-asset basis i.e. the value of a business is determined by the value of assets less the value of the liabilities, what’s not accounted for in that calculation is any goodwill.
Goodwill and super profit
Goodwill is a value attributed to the established reputation of a business and can be considered to be an asset, and therefore can be included in the asset pool for division when a couple separates. Goodwill does not exist in all businesses. It should not be assumed that if you bought a business and have paid for goodwill, that it still has value.
I have seen many people who have bought a businesses and a value for goodwill has been on the balance sheet. Then, when they go through this exercise as part of their separation, they realise they have paid too much for it. So when determining whether goodwill exists in your business, my rule of thumb is to answer these questions:

Are you making significantly more than a commercial wage for what you do in the business?
Is the current profitability level sustainable if you were no longer part of the business?

If you answer yes to both of those questions, there may be goodwill.
Goodwill  is sometimes connected to what is called “super-profits”. For example, if the owner of a business was working in the business and was paid a salary that’s commensurate with a market salary of, for example, $100,000 and the profit was $250,000 then that difference could be considered a super profit and could be translated into goodwill and may be transferable. 
The difficulty is that there is a difference between transferable goodwill and personal goodwill. So for example, if you were running a successful business, you have a number of employees and your super profit is $500,000 a year, then it may be that the business has a goodwill that has value and can be sold to somebody.  On the other hand, for example, a surgeon earning $1 million a year, has no transferable goodwill because the surgeon’s business cannot be sold as it is only the surgeon personally doing the work and relies on personal referrals to him or her.
Alternatively, if you have a business that has contracts in place for years ahead, along with a team that does not rely on your input to keep it going, there is some degree of certainty that the business will continue to be sustainable beyond your exiting of the business.
When accountants typically value businesses, they look at the history of the trading business and then assess the future of the trading. They assess the viability of the trading income of business continuing and that determines whether a value can justifiably be placed on goodwill. 
Accountants often talk in multiples of the annual profit after the owner’s salary is taken into account. Sometimes the value of a business is one, two or three times that number depending on their trading history and what the norm is for the particular industry.
Once the business value is determined using the multiple they then subtract the net value of the assets and liabilities and if there is a surplus that is the value attributed as goodwill. What often happens though is that people will have a large amount of capital tied up in their business and there is no no goodwill.
When considering the value of your former partners business it is important not to presume that their business will have a value on it or that it will be able to be sold. 
Interests in businesses with third parties
The value of an interest in a business can be significantly affected if you are in business with other people outside the marriage.
If for example, your former partner is in business with three other partners, and your former partner owns 25% of the value of that business, there may be a partnership or shareholders agreement. Typically those agreements provide a formula on how to value the business for the purposes of one party selling their interest. There are often terms in that agreement that says that the only persons permitted to buy that share are other business partners or shareholders. So your partner may not be able to sell or transfer their stake in the business if partners or shareholders do not agree with someone else buying or receiving the share.
These sorts of restrictions on saleability lead to discounts for lack of control or minority interests. For example, if your former partner’s business is worth $1,000,000, a quarter share is theoretically worth $250,000 on paper. But because they have only a 25% share, that value can be discounted because of the lack of control they have over the business. The 25% share may be reduced to being valued at, for example, $225,000 or $200,000.
Another area of difficulty can arise when a couple separates and their minority business is their most significant asset. That may mean they will need to sell their interest in the business in order to divide their assets. If they cannot reach an agreement, a Court may order the sale of their interest in the business to complete the financial settlement. The Court will typically not be in a position to order the other partners or shareholders in the business to buy that parties interest or to have to sell the entire business. 
Disputing valuations
In the event of a dispute about the value of a trading business, lawyers for both parties will engage a single-expert accountant to undertake the valuation. That accountant will review the financial performance of the business for the last three to five years. They will review the forecast for the next year or so, they will talk to the key stakeholders in the business as well as the accountants who have been involved in the financial management of the business and sometimes, get valuations of hard assets and inventory. From this they determine with their own independent valuation.
It is important when considering the value of a trading business in the context of a property settlement to get realistic independent advice about the real market value of the business before making any agreements. The people we assist are always in control of whether they proceed or stop at any point. They can elect to do what they wish but when they have the knowledge from a source that understands the complexities of family law, they can make decisions with confidence.
 
If you found this article interesting, leave a comment or share it with others who may find it helpful.
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here.
Written by Tony Phillips, Accredited Family Law Specialist, Director, Phillips Family Law
The post How do you work out what the family business is worth? appeared first on Phillips Family Law.

You may hear stories from friends and family about what happened during their divorce. Perhaps you’ve seen separation or divorce play out or portrayed on television that shapes what you think may happen when you separate. As a family lawyer, I’ve heard some common myths come up time and time again and I wanted to dispel some of them for you so you are clear on what is fact and what is fiction.
Myth:  A father is rarely given a shared-care arrangement
It is often thought that when children are involved the mother will always get primary care of the children when a separation occurs. This is not always the case, as there is no law or presumption in Australia that a mother should get greater custody rights to a child than a father.
Unless there are issues of serious family violence or risk to a child, the law is that there is a presumption of equal shared parental responsibility. This means you have to make all the major decisions together about your child, even when you separate. This can include jointly deciding things like religion, school, and major health decisions. 
When it comes to parenting arrangements, the main consideration is what is in the child’s best interest. If equal shared parental responsibility is presumed, the Court must consider whether it is practical and in the best interests of the children for them to spend equal time or ‘substantial and significant time’ with each parent.
Substantial and significant time includes children spending weekdays, weekends and holidays with each parent and each parent having meaningful involvement with the children’s daily routine. If you have very young children that haven’t spent much time with the father due to their age, such as a baby that needs to be breastfed, then the social science behind it is that shorter, more frequent visits with the father is going to be best to try to establish that bond with him while the child is very young.  However, there is no rule of thumb that the children go with the mother. There are a range of factors that are taken into account such as what the arrangements were during the relationship, or whether the child is primarily attached to one parent, along with practical considerations as to how the time will work. 
When there is a situation where a father has had very little to do with a child but now wants to be more present, the fact that he didn’t have any historical involvement doesn’t disqualify him from being able to build up a relationship and spend time with his child. However this may take some time. The law sees that it is in the best interest of the child to have a meaningful relationship with both parents. In these circumstances, it may be appropriate for a child’s time with their father to gradually increase over time. 
Unless there is a reason why it shouldn’t be the case, the Court aims for the child to have substantial and significant time with both parents. 
Myth: “I need to file for divorce”
People first contact a law firm asking for help to ‘get a divorce’. Many don’t realise the distinction that a divorce is the legal end to a marriage that can only occur after you have been separated for 12 months or more.  When you initially separate, you are able to sort out your property settlement and parenting arrangements straight away if you wish. These are the two key elements that should be initially completed.
Related: Why you don’t need to wait 12 months – the processes in divorce
A Divorce Order itself is a single document that says you are no longer legally married. As an example, sometimes people go through negotiations and/or Court and have a property settlement finalised and but may still be legally married, as they are not yet eligible to apply for a divorce.  At the earliest, divorce can be granted 12 months after the date of separation.  
Getting advice from a lawyer when you separate is essential, as sometimes it might not be advantageous to file for divorce as soon as the 12 months is up. For example, I had a client with a family trust set up who then filed for a divorce. The way the trust was set up was that it only included the former partner as a beneficiary, if they were a spouse. This is not an uncommon set up as a way to achieve income splitting for tax effective purposes. Because the divorce had gone through the husband didn’t realise that because his ex-wife was no longer his spouse he was not able to distribute income to her anymore causing tax implications that he hadn’t previously considered.   Another example is a client I worked with had not yet finalised a property settlement. Given that a divorce triggers a time limitation to start running once finalised by the Court, she decided to hold off making an application until the financial settlement could be further progressed. 
It is for reasons like this that it is highly recommended, for your own benefit, to seek advice about the timing of when you file for a divorce.
Myth: “If we separate I’m entitled to 50%”
At times people assume that when they separate they will be entitled to 50% of the asset pool. While this might be the case for some relationships, it’s not the case for everyone and the Court considers a number of factors to determine the percentage split. 
These factors include:

The contributions that each of you brought to the relationship from when you first got together;
The financial and non-financial contributions that you have each made over the relationship; and
Future factors. This includes income earning disparity, health issues, age differences, age of the children and parenting arrangements into the future. 

These factors are taken into account when the Court considers what percentage of the property pool each party should receive.  Each case is different and the outcome is not always going to be 50/50. 
Related:  Finalising your property settlement – how to avoid buyers’ remorse
Why can’t you give me a precise answer about my property entitlement?
The Court goes through a five step process to determine the division of assets. 
Firstly, a determination must be made as to whether or not it is “just and equitable” to make adjustments to the parties’ property interests.  Infrequently, circumstances may be such that it is not appropriate to make any adjustments but this is rare. Step two is to identify the property to be divided and the value of that property.   Step three is assessing both people’s contributions (as mentioned above) throughout the marriage or defacto relationship. Step four considers ‘future factors’. This involves assessing whether there needs to be any adjustments for each party’s needs in the future based on such factors as age, health, earning capacities and the care of children.  Step five requires a consideration of the practical effect of the proposed property settlement, and whether it is just and equitable.
Myth: “I can’t separate because I won’t be able to support myself”
Sometimes people will come to us with the thought that they can’t separate because they won’t have funds to support themselves.  For example, we often see a mother who has stayed at home to care for the children and isn’t employed. The mother is concerned she won’t be able to survive financially when they separate, unaware that she is able to claim interim spousal maintenance while trying to sort out her property settlement or to access funds, if available, to meet her immediate needs. 
The way the Court looks at it is whether one party has a need for maintenance because they can’t meet their reasonable weekly needs from their own income. So even if they haven’t worked or only have a little amount of income because they have been out of the workforce, they may be able to receive spousal maintenance.
What will be considered is if the other party has the capacity to pay spousal maintenance. So, after they have met their reasonable weekly needs, do they have any surplus leftover? Generally in a marriage where one party hasn’t worked, they will have some sort of surplus that can be provided to the other party in the interim.
If this sounds like you, to negotiate this type of arrangement, work with your lawyer and write to the other party to request that they pay an amount for spousal maintenance. If you don’t reach an agreement, then you can apply to Court to seek that the other party pay you maintenance. 
Myth: “We’ve separated so my former partner can’t access my inheritance”
When it comes to inheritances you need to remember that in property settlements the assets that you have at the time you are working through a property settlement is what is considered. As this process can take some time, inheritances that are received after you separate can potentially form part of your property pool available for division.
The fact that an inheritance came in after separation doesn’t mean it is not considered as part of the asset pool.  When it was received and by who, is relevant to considerations about who contributed what and it may alter the ‘assessment of contributions’ as discussed above. 
However, if the property settlement has been finalised, then your former spouse will have no claim to your inheritance under family law.  This is one of the reasons why it’s important that you complete the necessary paperwork and have orders and agreements signed. 
Related: Will your inheritance be included in the property settlement?
Myth: “Keep the lawyers out of it and we’ll have a handshake agreement”
Many people can feel that getting lawyers involved can be expensive and unnecessary, particularly where things are amicable.  However, if you don’t document things correctly then you can end up costing yourself more. An example of this is having to pay stamp duty with the transfer of a property which would otherwise be exempt under an Order or agreement. 
If you only have a handshake agreement, this can leave you open to the risk of further claims in the future, potentially a larger claim,  even if the assets have been sold. So it’s important to formalise the property settlement and have it signed off by the Court.
Related: Finalising your property settlement – how to avoid buyers’ remorse
I do hope that this article has clarified some of these common myths for you. What is also true is that the only way you can be truly confident about your next steps is by talking with a specialist family lawyer and seek advice specific to your circumstances. With advice from people who are dealing with a range of issues for their clients in this family law space, you are in a far better position to make informed decisions and act on them.
Related: How a friend’s divorce advice could cost you
If you found this article interesting, leave a comment or share it with your team, colleagues or clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here.
Written by Olivia Phillips, Associate, Phillips Family Law
The post Dispelling the myths – what you must know when separating appeared first on Phillips Family Law.

As an accountant or financial planner, you can find yourself as the first person a client speaks to when separating from their spouse. Due to the nature of the close working relationship you have likely developed with your clients, you may find yourself facilitating conversations between a husband and wife who want to understand the impact a separation will have on their finances or the operation of family businesses. 
Despite the best of intentions, what often happens in these circumstances is that one of the parties in the separation has been more directly involved in giving instructions to you. This could be either the husband or the wife. When this happens, you need to consider if you should maintain a client relationship with both parties, and if so, how and what potential issues may arise in doing this. 
As a trusted advisor, you may need to work together with your client’s lawyer to achieve the best outcome for both sides.  However, where couples have separated, they are each likely to need independent advice about aspects of the structuring of their settlement, which is where conflicts can then arise.  
In my experience as a family lawyer, there are three main areas you need to consider if you are an accountant or financial planner that is contemplating continuing to work with both a husband and a wife who are separating. 
1. Determine if there is a conflict of interest
The first thing to consider if you are an advisor who is faced with this situation is to establish if a conflict of interest is likely to arise. Ask yourself whether you can continue to assist both the husband and the wife in the context of a separation, and whether their interests may misalign when providing advice in future.  
If you do decide you are going to stay involved with both the husband and wife, then you need to ensure that you’re communicating with both of them.  For example, when you email them, make sure you’re copying them both in to those communications, along with their lawyers. This helps to ensure you avoid any perception that you’re favouring one person over the other, in terms of the independence of the advice.   
When a client comes to me as a family lawyer, it is sometimes raised that one person from the relationship feels a little bit uneasy with the situation of continuing to share an accountant if they have had limited or no contact with them.  
When that arises, often we will assist them to explore obtaining advice independent of their spouse. 
Some questions we ask include:

Have you had any communication with them and if so how frequently?
Do you have an ongoing working relationship with them? 
Are you comfortable with how it’s currently working? 
Do you want to consider getting some independent advice?

It is not uncommon where we may see a situation, particularly at the end of long marriages of retirees, where parties have adopted traditional roles,  where a wife has had no communication with an accountant at all. They haven’t met them or they might have only met them fleetingly to sign documents. In this circumstance, they may feel more comfortable getting their own advisor. Whereas others, who’ve been far more actively involved may indicate they are comfortable for the existing accountant to continue to assist both parties.
A recent example of this I witnessed was where a separating couple was receiving advice from both a financial planner and an accountant. Both the husband and wife had both been involved in the setup as well as receiving advice during the marriage. Upon separation, they decided that they would continue to have the same advisors assisting each of them, irrespective of the fact that there is a potential for conflict. That only worked in this circumstance because they both had strong working relationships with the advisors,  so both parties felt that they had a relationship of trust and confidence in those advisors. What was most important in this instance, was that along the way, there was communication that both the husband and wife have received. This avoided the perception that one party was being favoured over the other. 
In my time as a family lawyer, I would say this example, however, is quite rare. It’s not often that both people have been equally as involved in the accountant or advisor relationship. It’s much more common, as an example, for a wife who after a long marriage hasn’t had any involvement whatsoever with the advisor. In those circumstances, the wife will often feel that there is not a particular connection or need to continue that relationship. 
So in circumstances like these, it’s an obvious choice that the husband will continue to use the existing accountant and the wife seek advisors they are more comfortable with – someone new and independent that we can refer them to.
So as a measure to avoid any conflict of interest you will want to ask yourself if you are advising one party about the advantages of doing a settlement a particular way in terms of tax or structuring.  For the avoidance of any doubt, you may consider raising whether they are comfortable to continue working with you from the outset. Or at a minimum, flag that there is a potential for this to arise and have an open discussion about it.
2.Work collaboratively
Regardless of whether you think a conflict arises, you may wish to advise both of your clients to get some independent family law advice early on. You are often one of the first people to find out about a separation, so are in a position to help facilitate discussions between the two parties in the early stages about the potential impacts on the business or how that might work and encourage them to get early legal advice to keep things amicable and avoid issues arising later which may jeopardise their ability to achieve this. 
As much as you can be helpful from the accounting side of things, ensuring your clients have an understanding of where they each sit in a family law setting can be beneficial for them both. If a lot of discussion is had before a family lawyer becomes involved, they might reach agreements that then don’t have ‘stickability’ – they may potentially propose a solution that they may feel is achievable but is not achievable  or has some risks or downsides for them when formalising a property settlement. 
Related: Accountants, Financial Planners & Family Lawyers: Working together for the optimal client outcome
We’ve covered this off in a prior article about What accountants need to know about managing a relationship breakdown. When it comes to family law, it  is wise to adopt a collaborative approach, working with your clients and their family lawyers. This way you are best placed to ensure the most tax and cost-effective methods are adopted as part of the financial settlement. With the parties working together, their separation can be formalised to ensure a ‘clean break’ and no further claims can be made. 
Working with each person’s family lawyer to achieve the best outcome is always the most effective approach.
3. Understand the role you play
When working collaboratively with your clients along with their family lawyers, it helps to keep to the role you play in the process. Naturally your role is to assist your client and add context to the situation from a tax and accounting point of view and generate potential options for structuring a settlement, once they have obtained advice.  What is key is to be mindful of not inadvertently setting expectations that may not be able to be achieved from a legal point of view.
To be helpful to your clients in trying to avoid a dispute and keep things amicable, as an accountant you can sometimes find yourself treading the fine line of starting to assist in negotiations and discussions about how a property settlement might occur.  Without the husband and wife having had independent legal advice about what their entitlements are, sometimes despite the best of intentions, you find yourself acting outside of your core role in the process. This potentially creates some issues for one or both parties down the line when they inevitably get independent legal advice about the workability of what has been discussed.
So in an effort to be helpful to your clients what can sometimes be the best course of action in these circumstances is to point them in the direction of some early advice. That’s not to say that things won’t be able to be worked out amicably.
 As a family lawyer, I am a problem solver first and foremost.  We are trained to find solutions, problem solve and work together with our client’s advisors to collaboratively achieve an amicable and early outcome.
By getting legal advice early, your clients may avoid problems arising down the track. This of course is best achieved by referring your clients to lawyers that adopt the same kind of holistic approach to problem-solving and finding a collaborative outcome to keep things amicable and ideally avoid the need to go to Court. 
For separating couples who own a business and both have been actively involved, an example of that I’ve seen in my time as a family lawyer was where a husband and wife had some discussions via their accountant about potentially both of them remaining working in the business and not untangling their financial affairs. But the wife didn’t necessarily appreciate the risks that were associated with that for her.  She wasn’t comfortable continuing to be tied up with the success or otherwise of the business and the financial decisions that were being made by the husband. So while there seemed to be some attractive aspects of both of them remaining in the business, it also exposed the wife to some risks and potential issues to arise, that ultimately when she sought advice, wasn’t comfortable to take on.
Essentially, maintaining relationships with separating couples as an accountant or financial planner means you need to focus on being helpful, but ensuring you don’t find yourself in a situation where the independence of your advice from either the husband or wife is called into question. It can be a difficult situation to manage when you’ve had a longstanding relationship with both parties. So getting family lawyers involved early in the process will help ensure the role you play in the separation is not compromised. 
If you found this article interesting, leave a comment or share it with your team, colleagues and clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here. 
Written by Fiona Caulley, Accredited Family Law Specialist, Director, Phillips Family Law
The post Maintaining relationships with separating couples as an accountant or financial planner appeared first on Phillips Family Law.

In my time as a family lawyer, there are a few misconceptions that come up time and time again concerning separation and divorce. While it is possible to keep most components of a separation outside of Court, this doesn’t mean that you don’t need a lawyer to assist you through the process.
Common misconceptions about how to keep divorce out of Court
The main misconception I’ve seen in my time as a family lawyer is that a separating couple believes they can strike an agreement without involving lawyers at all. Often they have the goal of saving time and money but what can end up happening is quite the opposite. 
When a separating couple comes to an agreement about children and/or financial matters outside of Court, they may not have it formalised in a legally binding document, such as consent orders or a financial agreement. Unfortunately, this handshake deal won’t hold up in Court. 
I have seen it happen on many occasions, that people believe that if they write something on a piece of paper, have it signed by both parties and have their signatures witnessed by someone such as a Justice of the Peace, it will be final. This is not enough to hold up in Court. Unless you have a legally binding document – either consent orders or a financial agreement – either party can apply in the future to seek a different settlement. Say, for example, that one party decides to pursue a property settlement through the Court in the future. If no legally recognised document is in place, this can be done, even if a property has already changed hands. 
A formalised financial agreement or consent orders is therefore essential. But do they need to be done through a family lawyer?
How the process works – parenting and property arrangements
A financial agreement must have a family lawyer involved to give advice. Why? Because it is a requirement that each party receives independent legal advice. A lawyer has to sign a statement saying that they have given their client advice about the advantages and disadvantages at the time of making the agreement and the effect the agreement has on their rights.
Some clients believe they can turn up to the first appointment with an agreement that’s been drafted and request a lawyer to sign on the dotted line, but that’s not quite how the process works. It’s not simply a matter of the solicitor just signing off on a statement. They need to review the agreement and the client’s circumstances and provide a letter of advice for their client. 
When it comes to consent orders, parties don’t necessarily need a lawyer to sign off on the document. But it’s always our advice that our clients have their orders reviewed before they are signed and sent to the Court. We advise this because when a couple separates, there can be a lot of stress involved and it’s quite easy to agree to something which can have serious consequences down the track. 
Some of the common things that people overlook when dividing property, for‌ ‌example, are the closing down of joint bank accounts or joint credit cards. If this isn’t part of the order it’s easy to be forgotten and problems can ensue if the account closures are not included in the orders.
The other important reason for people to get advice about consent orders is to make sure that the orders actually do what the parties want them to do. For example, if you’re transferring property from joint names to one party’s name. If the order is drafted correctly, they are exempt from having to pay stamp duty on the transfer as a result of the transfer happening pursuant to an order made under the Family Law Act.  
So while people may get upset about having to pay a lawyer to look at the order, when they’ve already reached an agreement, if the order is not correct they could be assessed and be required to pay stamp duty on it. This may result in being significantly more than the original lawyer’s fee of looking over the orders. 
We always tell our clients to also get advice from their accountant or financial planner before entering into any property settlement agreement. They need to be aware of the financial or tax consequences of any action.
Sometimes a client might be better off financially accepting a lower percentage of the property pool because when a financial planner looks at the composition of assets that one party wants to retain, it might be better for them in the future to have particular assets as opposed to concentrating on getting a larger percentage of the overall pool.
What steps can you take to avoid going to Court?
If the separating couple have children, then before applying to the Court, in the majority of cases it is compulsory you attend mediation. Why? Because you need what is called a ‘Section 60I certificate’ to be included with your application for parenting orders before it is filed with the Court. 
But there are exceptions that can arise. For example, mediation may be deemed unsuitable if there has been family violence or there is urgency to the application. For example, if one parent has retained the children for no valid reason and is refusing to facilitate any time with the other parent, then you may get an exemption that way. 
We often say to our clients that if you can reach an agreement at mediation, you are going to save yourself significant legal fees in the future.There are community legal centres who will do mediation for parties at a minimal cost, or if certain circumstances are met these centres might offer these services at no cost. The problem is that some of these centres have significant waiting lists so people may wait a considerable time to start mediation. If you want to try and get some certainty about your parenting arrangements moving forward, that’s a delay that you will not likely wish to wait for. 
We suggest good mediators in private practice. While they are more expensive than the community legal service, you are not restricted by time and can get a mediation quickly, usually within a month or two.
The first mediation regarding parenting arrangements often provides you with some guidelines right from the start which can eliminate any conflict or difficulties that arise in the future. You don’t have to reach an agreement at that first parenting mediation for what is going to happen in the long-term. It might just be for the next six months, this is what we’re going to trial and we’re going to review it after that to see how the kids have been going with it in place, and whether the agreement we reached today is in the children’s best interests.
When a client comes to us we give them advice as to whether we think their proposed agreement is something that the Court would consider to be in the children’s best interests. 
It’s good to get professional legal advice first, because if you have already struck a deal, you may be unaware that what you have agreed to is not an appropriate outcome. 
In situations where lots of discussions have already occurred, it can be really difficult to then try and convince your former partner that the agreement that you’ve reached between yourselves is no longer appropriate. Then when you renege from it, this can prolong negotiations and sometimes result in additional legal fees.
It’s not compulsory to go to mediation before you apply to the Court for property orders. But once you get into Court, one of the orders that the court is likely to make is that the parties go to mediation to try and resolve their property matters. So, even if you do try and go to Court, they’re going to pull you back and encourage you to go back to mediation. 
More often than not, parties agree to go to mediation for both property and parenting matters prior to applying to the Court, keeping Court time to a minimum. 
Mediation for a property matter can take longer than parenting orders because there is upfront work involved such as obtaining valuations, exchanging disclosure and settling the property pool. We do this to give our client the best chance of resolving the matter. They need to be fully aware of what is in the property pool so that we can give them advice as to what their range of entitlements is. 
That way, when they get to mediation, they are able to make an informed decision about whether they want to reach an agreement, having had the benefit of knowing exactly what the property pool is and having the benefit of receiving legal advice about it.
Steps you can take to avoid Court
When you seek legal advice from the start you can be confident about where you stand. As a family lawyer, I know that separation is hard and there are a lot of heightened emotions. Having a lawyer can facilitate effective communication with your former partner to make sure the communication lines are open. 
There is nothing wrong with saying that you will need a few days to think over something your former partner has proposed as part of your separation plans. You don’t need to say that you are getting your lawyers advice. It’s just about acknowledging the communication from them, letting them know that you are considering it and giving them a timeframe for when they should expect a response. 
Once parents stop communicating effectively it can have a significant impact on the children. In the instances where communication breaks down, we often see everything put on the table and used as evidence. With the technology we have available now, people record each other and if required, your lawyer may need to go through listening to hours of recordings. Which of course means the costs are going to increase significantly. It is in your best interests to seek legal advice early to minimise the chances of a communication breakdown and increasing the chances of having to go to Court to settle your parenting or financial arrangements.
Identifying the right lawyer for you
It’s really important that clients engage a lawyer who you have trust and confidence in and who you feel is the right fit for you. If you can get an effective and workable client-lawyer relationship, then that’s a good start to keep negotiations to a minimum.
To keep a separation outside of the Court you will want to find a lawyer who is pragmatic and focused on resolution. Sometimes it helps parties if the lawyers can pick up the phone to each other and have a conversation about what their respective clients need in order to try and resolve the matter. 
Sometimes clients will seek my advice to recommend a lawyer for their former partner. At first, you might think that seems strange, why would a lawyer recommend someone else? But the best lawyers are those who can have a good relationship with other lawyers in the community. Most lawyers know each other and know how they work. So if I have a client coming to me saying, I want to resolve this as amicably as possible, I’ll give them recommendations of the lawyers who I know work well with and are focused on a resolution not a drawn-out legal battle in Court.
 
Related: About to separate? 5 key considerations you need to know
How a friend’s divorce advice could cost you
If you found this article interesting, leave a comment or share it with your team, colleagues and clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here. 
Written by Stephanie Wilkinson, Associate, Phillips Family Law
The post Can you avoid Court when separating? appeared first on Phillips Family Law.

From the perspective of dealing with other professionals – lawyers, accountants and financial planners – the most significant learning for me is the importance of effective communication between the relevant professionals.
The professionals I come across in my work where we have effective communication are able to deliver the most positive impact for their clients. Typically they reach out to their clients who are contemplating or facing divorce, and suggest they seek professional advice before saying or doing anything.
Unfortunately, too often we will sit down with a client for their first consultation and they will detail all of the steps that they’ve already taken. They soon realise what they have done might not have been the best course of action. 
When you have communication you don’t have mistaken presumptions. 
A classic example of the negative impact of poor communication is this… 
As part of a property settlement we transfer a company-owned car to the wife. It seems very simple. ABC Pty Ltd signs a transfer form to the wife and she’s now the owner of the family car. The problem however lies in that there are many circumstances where that could deemed a dividend. The wife discovers that while she’s received a $100,000 car she now has a tax bill on the basis that she’s received a dividend from the company of $100,000 and no-one took that into account when working out the settlement.  
So in this instance, a strategy could have been devised to avoid the tax being payable, such as having the husband give the wife the money to buy the car from the company at it’s written down value, resulting in no tax consequences for anyone. 
If we presume that the client has spoken to their accountant or their family lawyer to get advice about anything, this is almost always problematic. In the instance above, on the accountant’s part, it could be that they presumed that the family lawyer knew of the tax implications. Or on my part I may have presumed that the client had spoken to the accountant. Presuming any lawyer, accountant or planner has advised their mutual client that there is a consequence to an action is just that, a presumption.
So, when we are involved in property settlement work, there needs to be lines of communication, so no incorrect assumptions are being made and the implications can be thought through before any decisions are made.
It’s very seldom that there isn’t a consequence to a particular action.
Open up a channel of communication
Sometimes when a client comes to see us they have been referred from an accountant or financial planner. In these cases, it’s relatively straightforward to ensure the lines of communication are opened between the different professionals from the start. Often, however, clients will come directly to us. In these cases, I will ensure that I make the effort to contact the client’s accountant or financial planner to ensure they are across the proposed actions.
By opening up the channel of communication between those other advisers and the family lawyer, we can ensure they aware they need to have input on the strategies and consequences of each client’s case. This two-way communication is about knowing that if a strategic decision needs to be made, the accountant is across it first, so there are no surprises later on and everyone is fully informed to make good decisions.
This sharing of information doesn’t mean every communication needs to be copied into the accountant but it is a false economy to try and save costs by not keeping all parties involved.  
As a lawyer, I need to get advice from the appropriate source so a decision can be made from an informed basis. 
Testing the reality of plans 
Financial planners are in a perfect position to assist family lawyers by using modelling tools and data available to them to future-test potential outcomes. For example, let’s say that a mother is emotionally attached to the former matrimonial home, so she will do anything to keep the children in the home. She looks to take a settlement that consists almost entirely of the equity in the home with the plan to borrow money to pay her husband out. By reality testing this plan she discovers, with the help of her planner, that she has left herself in a situation where she doesn’t have the means to cover her day-to-day living expenses if she takes on a considerable mortgage.  
As lawyers, we can raise and highlight the issues to a client, but we need to point them in the right direction to reality test the outcomes. When communication lines are open, financial planners can sit down with a client and show them what life will look like after a settlement.
In the case above, a planner might propose a more modest home so the client can sustain their lifestyle. Then the planner may recommend using additional money from the settlement to earn a passive income stream.
The trusted advisor role
If a husband and wife have a family-run business, accountants, commercial lawyer  and sometimes financial planners are involved. In this role as trusted advisor, they are often aware early on of a separation or a potential separation between a couple.  
If you are a trusted advisor, it is highly beneficial for you to be aware of changes like these in your clients’ relationship so you can recommend they seek family law advice and open the lines of communication between all of their trusted advisors for a more comprehensive approach.
Document everything well
It is important to ensure that everything is documented well and communicated between all parties involved. This should be the case all throughout a family law matter, even when the matter is coming to an end and implementation of orders is about to occur. 
In my 35 years as a family lawyer, the golden rule has always been to ensure sufficient communication. This puts everyone on the same page to reduce risks and avoid any surprises. If you are a commercial lawyer, accountant, financial planner or other trusted advisor, and you become aware that your client is separating or about to separate, the very first step is to direct them to seek professional advice from a family lawyer. Then, ensure all parties are in communication so together we can give our mutual clients the best possible outcome based on their circumstances.
If you found this article interesting, leave a comment or share it with your team, colleagues and clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here. 
Written by Tony Phillips, Accredited Family Law Specialist, Director, Phillips Family Law
The post Accountants, Financial Planners & Lawyers: What I’ve learned over 35 years as a family lawyer appeared first on Phillips Family Law.

Contrary to popular belief, the action of ‘keeping the lawyers out of it’ is often the catalyst for a troublesome property settlement.
The key to a streamlined property settlement is to only make agreements that you know will be final. Conflict occurs when one party does not maintain their end of what they agreed to and it is not exclusively experienced by those with ill-intentioned former partners. In fact, it regularly happens to people who truly believe they had reached a good outcome for all involved.
In my experience, this perception of the other person ‘changing their mind’ tends to happen when two well-meaning people make arrangements without having sought professional advice first. It is only after professional advice that they are able to see that what they have agreed to is problematic for them, or their children, in the long-term.
When people agree to a property settlement with or without advice from a lawyer but prior to it being formalised, it is called an ‘in principle’ agreement. That is, it is agreed to in principle but is has not formalised by a financial agreement or by an Order of a court. Therefore it is not binding and either party can back out of the agreement.
I often come across people who started out having made decisions about their property settlement together, who tell me that when they researched online they discover the need to formally document their intentions. That need to get the agreement formalised is how they come to us. It is during that process they sometimes learn that what they have agreed to is well below their entitlement or there are aspects of it that my be unworkable in a practical sense.
This is where negotiations can become difficult as the other party will resent the party resiling from their “agreement” .
An example of this was where I was representing a husband. He and his former wife reached agreement at mediation. Afterwards, his wife pulled out of the deal. From that moment, it was then very difficult to try to get him to move on paying her any amount more than had been agreed in the mediation. Whilst I believe he may have been open to offering her more had it been asked for during mediation, he took a moral standpoint of: ‘You’re reneging on the agreement. I thought it was over. We agreed. I’m not prepared to move.’
Another example was with a client I’ll name Nicholas (not his real name). Nicholas came to us after he had already been to mediation with assistance from another lawyer. It appeared as though he hadn’t received fulsome advice about the process and the range of entitlements, and agreed to a settlement with which he ultimately wasn’t happy. Nicholas came to us to get a second opinion and it appeared that what he had agreed to was well below his entitlements. Having already completed the mediation with a result, his former wife was not prepared to negotiate as in her mind, that was what had been agreed to. The matter then went to trial.
It is so much harder to shift the expectations of your former partner once you have come to a result in mediation or have made a verbal agreement. When both parties agree to what they believe to be a good decision and one person gets advice to the contrary, it is significantly more difficult to negotiate.
An important step to take in addition to obtaining legal advice before entering into property settlement negotiations is to ensure that you are able to carry out any proposal you put forward. This may mean obtaining accounting advice or speaking with your bank about your ability to refinance before you put a proposal to your former partner. If you and your former partner agree to something and then you later find out there are significant tax consequences that haven’t been taken into account or that you can’t refinance a property, this can lead to the deal falling apart and ill will in negotiations. 
Many times people inadvertently prejudice their position by the actions they take before obtaining legal advice. They may take a step before seeking legal advice thinking they are doing the right thing and later realise it may not have been the best step to achieve their desired outcome. One example of this is if you intend to retain the family home but you temporarily move out because the situation becomes untenable in some way. Moving out can severely impact your ability to get back into the family home on an interim basis. Another instance is where one person in the relationship has either been kept in the dark or is unaware of their financial position. If you are that person and you leave a relationship without that information, and the other person is not forthcoming with that information, that can significantly slow down the process. Determining the asset pool is the starting point for any property settlement so if you are not aware of some key factors, you may be putting yourself at a significant disadvantage. Understanding the process and what is involved before you make the final decision to separate puts you in a place where you can make informed decisions. 
Sometimes people view going to a lawyer as a last resort or view seeing us as the outcome of a communication breakdown or failure to agree on their part. Instead, I encourage you to be aware that the benefit of seeking advice early, even if only for an initial consultation, may be all you need. We can give you insight into your likely range of entitlements and your best-case and worst-case scenarios. Knowing what is involved in the process and what needs to be taken into account before agreeing to anything with your former partner will lessen the chances of remorse about your property settlement.
If you found this article interesting, leave a comment or share it with those you know will find it helpful.
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here. 
Written by Olivia Phillips, Associate, Phillips Family Law 
The post Finalising your property settlement – how to avoid buyer’s remorse appeared first on Phillips Family Law.

When someone is experiencing separation or divorce, regardless of whether they are the instigator, on the receiving end or both have agreed to separate, there are some key books that can be helpful for the clients I advise and guide following separation. These books often provide valuable advice, insights and mechanisms to help you or those you love, understand and cope with different stages of the separation and divorce process.
They fall into four main categories:

Understanding the process
Divorce with children
Taking care of yourself; and
Books to assist children

Understanding the process
I often speak with my clients about the concepts raised in On Death and Dying by Elisabeth Kubler-Ross because it is about the grief cycle and assists them to understand how they or their partner may react. For people who are contemplating separation or are about to communicate that they wish to separate or are in the early stages of a separation, the cycles of grieving a death are very similar to the four stages of divorce.
Our society has a framework that doesn’t necessarily allow people to grieve the loss of a relationship in the same kind of way. 
Many people liken the end of a marriage to a death because there is mourning about the loss of a significant relationship. It’s the end of the joint vision and a dream that you had for your life. It is a loss of the expectations you had which is very similar to experiencing the loss of a loved one.
The grief cycle can help us to understand what goes on in divorce and where the other person might be ‘at’ in their own individual grief cycle. When you have a good grasp of where you are in the cycle and your former partner is in these phases, it can be insightful in understanding when (or when not to) take certain steps and how receptive the other person may be at that time. 
Another book is It doesn’t have to be that way – how to divorce without destroying your family or bankrupting yourself by Laura Wasser. While it is an American-based book, there is a lot to take away from it. It is focused on divorce as it is in today’s world where is there a focus on divorcing more easily and efficiently and to maintain some degree of control of the process. The theme of the book is about approaching separation in a collaborative manner and how to have what Laura refers to as a ‘safer passage’ through what can be a very difficult time emotionally and financially. 
Divorce With Children
A book for parents who are going through separation that I highly recommend reading is Separating Respectfully – how to separate without emotionally harming your children by Lynne Clark and Cheryl Smith. It’s a self-published book by two Queensland based family therapists and social workers who write family reports for the Court and work clinically to assist separating families. It contains their practical tips to protect your children from emotional harm when you are going through divorce and how to move forward. It gives helpful insights into emotional damage to children and the key message is, just because you separate, it doesn’t necessarily cause harm to your children. It’s how you deal with that and the ongoing conflict that might ensue that does the damage, rather than the separation itself.
Another two books I recommend are by the same author,  The Unexpected Legacy of Divorce by Judith Wallerstein, Julia Lewis, Sandra Blakeslee  and What About the Kids? Raising Your Children Before, During and After Divorce by Judith S Wallerstein, Sandra Blakeslee. The first book is based on a longitudinal study investigating the long-term effects of children of divorce, over 25 years. It is the observations of four or five children over that period of time and into their own relationships. The second book expands on that research and focuses on the needs of children from the divorce through to their adulthood. It includes scenarios and specific advice. This second book illuminates the concept that is not necessarily the divorce that has a detrimental effect, but it is what happens after the divorce that can have the most damage.
Taking Care of Yourself
Separation and divorce can be one of the hardest things to go through and taking care of yourself is key. Mindfulness is a great way to refocus and respond, rather than to react when you feel things are out of your control. Some books to assist with that include this one, Conscious Uncoupling – 5 Steps to Living Happily Even After by Katherine Woodward Thomas. While the idea of ‘conscious uncoupling’ can be considered a controversial one because of the celebrities who coined the term, this book is about healing after a separation and moving forward.
Another well-known book Daring Greatly – How the Courage to Be Vulnerable Transforms the Way We Live, Love, Parent, and Lead by Brene Brown is worth reading. While it is not explicitly for people experiencing separation and divorce, it is about vulnerability, accepting imperfection and taking strength from adversity as a means to move forward and grow. This is a good read for someone who is in the phase of being accepting of their separation and looking to the future.
One book written for women is On your own two feet – Divorce by Helen Baker. As an Australian financial planner the author educates the reader about how to make informed decisions in relation to their current finances and into the future. The book includes some common mistakes that are made and how to avoid them. 
The Complete Guide to Protecting Your Financial Security When Getting a Divorce by Alan Feigenbaum and Heather Linton is a comprehensive look at the financials during across the different stages of the separation and divorce journey. It is an insightful and practical read that includes a range of helpful resources.
Books to Assist Children
For parents who are looking to support their children during separation, these are my recommendations. Two Birthday Cakes by Danielle Jaku-Greenfield is a picture book written for children aged 4 to 8 years. It is about how children come to terms with shared parenting. The story focuses on two siblings and the practicalities of living between two homes.
For children aged between 8 and 13, I recommend It’s Not the End of the World by Judy Blume. This well-known author covers some of the realities of divorce in this fictional tale. The book is most well known for delving into how the characters are feeling, the issues they are facing and that their parents getting a divorce ‘is not the end of the world’.
If you are currently working with a client or know anyone going through a separation or divorce that you think may benefit, please share this recommended reading list with them. If you are the person considering separation or are going through separation already, I do hope you find these books helpful.
If you found this article interesting, leave a comment or share it with your team, colleagues and clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here. 
Written by Fiona Caulley, Accredited Family Law Specialist, Director, Phillips Family Law
The post Best Books to help cope with Divorce appeared first on Phillips Family Law.

When a marriage or de facto relationship ends and a property settlement is required, the need to understand what financial disclosure means for you and your former partner, is key to enabling you to resolve your matter.

What is financial disclosure?
During a marriage or de facto property settlement process, each party is required to provide to the other, copies of all information and documents that are relevant to their property settlement. 
Documents are considered ‘relevant’ if they:

Verify the nature and extent of the assets, liabilities and financial resources of one and/or both of the parties (often referred to as ‘the asset pool’) that will be the subject of division of the parties including:

Assets and liabilities held in each party’s separate and/or joint names;
Assets and liabilities held within any companies or trusts in which either or both parties have an interest;

Verify the nature and extent of the current and any future income parties including income:

from employment; and
from other sources such as a company or trust;

Relate to an issue in dispute in the property settlement (i.e. if the document/information could prove or disprove an issue in dispute) which may include:

The contributions each person has made to the asset pool;
Factors relating to what each party may ‘need’ to support themselves in the future often referred to as ‘future factors’.

There’s a process that the Court will normally follow to identify the asset pool, the income, contributions and future factors of separated couples (see the related articles listed at the bottom of this article) however, central to this process is the exchange of documents and information between separated couples to ensure transparency.
What documentation is required?
Generally, the types of documents that both parties need to produce include:

Evidence of income (3 most-recent pay slips);
Last 3 tax returns;
Bank statements for the 12 months prior to separation to the current date (including accounts in the sole name of each party or in which a party holds jointly with another person);
Documents to verify any interest in a trust or company (including trust deeds, any variations to those deeds, tax returns for the trust/company for the last 3 financial years; financial statements [i.e. balance sheet and profit and loss] for the last 3 financial years; bank statements for all accounts [transaction and/or loan] held by the trust/company for the 12 months prior to separation to the current date);
Current superannuation fund statement;
If super is self-managed, the trust deed and financial statements for the fund for the last 3 financial years;
Documents to evidence any assets disposed of or sold in the 12 months prior to separation;
Documents that provide evidence of any inheritance, gift from a family member or friend, a redundancy payment, personal injury award or lottery winnings (including documentation to verify the receipt and application of the asset/funds);
Documents to evidence any future asset transfer or income that is likely to come a party’s way (for example, share options, trust distributions, inheritances); as well as
Documents that verify both people’s financial position when they began living together (e.g  valuations or purchase documents for assets owned, bank statements to demonstrate savings held or superannuation statements to prove entitlements at the time parties began living together).

While this list is not exhaustive, the idea is to gather as many documents as possible to verify the nature and extent of the asset pool, and the nature and extent of the contributions made during the relationship, including from the time that you have been separated for.  
What if I (or my former partner) do not disclose everything?
If either your or your former partner refuse to provide disclosure of relevant documents, and your matter eventually comes before the Court, the consequences may be that the Court could:

make an order for the person who has failed to provide disclosure (‘the non-disclosing party’) to pay the legal costs of the other party (in full or in part);

refuse to allow the non-disclosing party to rely on a document if it has not been previously disclosed to the other party;

Stay (i.e. place on hold) or dismiss all or part of the non-disclosing party’s application;

Find the non-disclosing party guilty of contempt of Court and issue a punishment of a fine or a term of imprisonment (although this is rare and only in extreme circumstances);

If non-disclosure is only revealed after the Court makes a final property settlement Order, the Court may set aside the Order (even if the non-disclosure is discovered several years later).

If your former partner is withholding documents, and your matter is before the Court, there are processes via the Court rules that your family lawyer can pursue on your behalf to obtain the missing documents from your former partner (or third parties). Such examples include but are not limited to: 

Filing an application in the Court (supported by an affidavit) to seek an order for the other party to produce the documents; 
Filing a subpoena to a third party to obtain copies of the documents; 
Sending a notice to the other party to produce the documents; 
Sending a notice to admit facts to the other party; and/or 
Sending a notice to a third party (not involved in the property settlement)  to provide the documents. 

Your family lawyer will need to take care in determining what is the best approach to obtain missing documents because there can be serious consequences for you if the above tools are not approached with the right attention and strategy for your case overall.
Managing your property settlement effectively
The idea in negotiating a property settlement is that both parties should come to the table ‘with their cards facing up’ so that decisions can be made from a fully informed place. Full and complete disclosure of all relevant documents is required to maximise the opportunity for an amicable and early resolution of the property settlement. The absence of cooperation in the disclosure process slows down the settlement process making it potentially more expensive to finalise.
If you and your former partner have separated and are having direct discussions, it is helpful to exchange all documentation upfront. If everyone has the information they need and there are few or no questions about the history of the relationship and what the current asset pool is, both parties can save themselves significant stress, time, effort and costs.
 
Related: Why can’t you give me a precise answer about my property entitlement?
Separating while overseas but have assets in Australia?
How are contributions in long marriages assessed where an inheritance is received?
Who gets the house?
If you found this article interesting, leave a comment or share it with your team, colleagues and clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here. 
Written by Rebecca O’Brien, Senior Associate, Phillips Family Law
The post What is financial disclosure in divorce and how can I manage it? appeared first on Phillips Family Law.

For accountants and financial advisors whose clients who are business owners and are separated but yet to finalise their property settlement, there are some issues you may want to help them avoid.
The most significant issue is the problems that occur when a property settlement rolls over into a new financial year. The potential implications include:

An impact on business valuation
Impact on plans for growth; and
Continued contact required with the former partner/spouse to finalise tax and financial affairs

1. Potential impact on business valuations
In circumstances where property settlement negotiations have stalled, business valuations and other valuation of other assets can be affected. This can be more pronounced where there are business which are currently trading.  As part of the process of resolving a property settlement, the value of an asset is highly relevant. When a financial settlement remains unresolved following mediation or needs to be determined by the Court, that is often the catalyst for needing an updated valuation to be prepared. 
With a business, a settlement rolling over into a new financial year, means that further financial statements need to be prepared for the company and a further year of trading history may need to be considered. The settlement process may require a reassessment of the business’ valuation and the value can change based on the performance of the company over that financial year. If the profitability of the business has increased or decreased since separation, it may affect the division of the asset pool to both parties.
2. Potential ongoing contact to finalise tax related affairs
If a settlement is not finalised by the end of financial year, both parties may need to continue to have ongoing contact as part of disclosure requirements. If not yet finalised, both parties may need ongoing contact relating to business decision-making and income, distribution of income to other family members and/or business taxes. This means that there is no ‘clean break’ in a financial sense as the next financial year rolls around.
3. Potential impact on plans for growth
If your client is planning to implement a capital improvement, put money in or take money out of their business at some stage, there may be limitations on them doing so, or potential advantages or disadvantages to consider.  At worst, if there is a lack of cooperation between the spouses, future plans may need to be deferred if a property settlement has not been finalised. 
As part of ongoing obligations relating to disclosure, all information relating to the business needs to be provided until a settlement is in place. Needing to continue to provide this level of financial information to a former partner whilst they are in an ongoing negotiation can be frustrating. Whereas once a financial settlement is reached, your client will no longer need to provide this information.  
It is for these reasons that business owners who are going through separation are in a unique situation. Whilst resolution of a financial settlement following a divorce is often emotionally charged and one which many people, at least initially, may want to avoid for as long as possible, as their trusted advisors it is important to remind them of the need to formalise a settlement so that come the end of the next financial year, they are better placed to focus on the future of their business. 
As a family lawyer, it’s not uncommon for us to hear from our clients’ or their accountants that they would like to finalise their property settlement before 30 June. Depending on where they are in the process, sometimes this can be achieved but where groundwork has not already been done, sometimes it cannot be achieved.  The key is starting early and approaching the problem solving exercise with a high level of cooperation and communication to hopefully achieve a mutually beneficial outcome for all involved. 
As a trusted advisor, I wish to highlight to you the importance of working collaboratively with your client’s lawyer to achieve a tax-effective strategy for their settlement, and to improve the chances of it being finalised within the intended time frame. I also recommend being alert to your clients’ circumstances in terms of any potential or impending separation or divorce and to be ‘ahead of time’ in these requests where possible so we can help your client achieve the ‘30 June wrap up’ and move forward with their business plans.
 
Related: Accountants, Financial Planners & Family Lawyers: Working together for the optimal client outcome
Top 5 things Accountants need to know about Family Law
No Pre-Nup? Lessons learned following announcement of divorce of Amazon’s CEO
Parents, Accountants & Financial Advisors: what you need to know about how child support works
 
If you found this article interesting, leave a comment or share it with your team, colleagues and clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here. 
Written by Fiona Caulley, Accredited Family Law Specialist, Director, Phillips Family Law
The post A New Financial Year – working with business owners going through separation and divorce appeared first on Phillips Family Law.

“Am I in a de facto relationship?”
People typically ask this question and seek our advice at one of two points – before they start living with their partner or at the end of the relationship.
When people speak with us they may be concerned about and looking to avoid being considered to be in a de facto relationship to ensure the preservation of assets if the relationship were to break down. Other times they may be seeking advice about the potential consequences of moving in together. Alternatively, they may want to determine if their former partner is likely to be able to make a claim for property settlement.
There are a number of misconceptions about what a de facto relationship is, because of what people hear from family, friends or what they see in the media. Below is what you should know about de facto relationships in Australia.
What constitutes a de facto relationship?
A de facto relationship is a relationship between two people – regardless of gender who are not married and not related, and are living together on a ‘genuine domestic basis’. This phrase is from the Family Law Act 1975 and it is the overarching question that needs to be asked to determine if you are in a de facto relationship.
What does ‘genuine domestic basis’ mean?
This means we are looking at how the relationship is distinguished from other forms of relationships, such as with someone you are casually dating or with a housemate. Some of the indicators considered are whether there is a mutual intention to share a life together, how long they have been in a common residence, whether they are having a sexual relationship and whether there is any financial dependence, interdependence or support. We also look at what they have done in regard to household duties or the public aspects of the relationship. If people in their wider circle know them to be a couple, for example, they socialise together and go to each other’s family events, coupled with the other indicators, they are likely to be considered to be living together on a ‘genuine domestic basis’.
However the lines can be blurred given the way society is today and the different types of relationships that exist.
Sometimes people are living together but unsure if their relationship is considered a de facto relationship. Less commonly, there are married people who are also in a second relationship that is a de facto relationship or perhaps there are people who might be considered to be in two de facto relationships. With so many variations in relationships, when determining if there has been a de facto relationship, a Court has to consider a number of different factors.
When is a relationship considered ‘de facto’?
The most well-known rule of de facto status is when two people have been living together continuously for more than two years. What you may not know is that the two-year rule does not apply when any of the following occurs:
If a couple have a child together even though they have not yet been living together in a relationship for two years, they are considered to be in a de facto relationship; and
If two people decide they are going to move in together and a purchase a property in both names from the outset or, they have been living together and then decide to buy a property together before that two year period has passed.
If two people are living together, even if not for two years and are substantially intermingling their finances, including acquiring joint property together and operating a joint bank accounts etc, that can also indicate that they may be considered to be in a de facto relationship and could potentially make a property settlement claim.
When people live together and substantially intermingle their finances, it muddies the waters when determining the nature of their relationship if they haven’t yet been living together for over two years.
Less common is when people have registered their de facto relationship. It is rare but the idea behind doing that is so they do not need to have the argument about whether they are in a de facto relationship or not, later on. We have had clients in the past where people were living together, but say they were not in a de facto relationship. An situation where this could arise is where people start out as flatmates, then had some form of sexual relationship, but never had the intention of living together on a genuine domestic basis.
So you can see how the waters can become increasingly muddied given the different nature of relationships.
I’m thinking of moving in with someone, what should I be doing?
When people come to us for advice before moving in with their partner we talk to them about their goals in the short and long term, how serious the relationship is and how long they have been together.  We discuss the benefits of largely keeping their finances separate until they have a plan about how they wish to approach things further into the relationship. We also talk to them about whether they might want an agreement drawn up (typically referred to as a Financial Agreement) for how they might wish to work through things in the event of the relationship breaking down.

If a de facto couple separate, if there is no agreement in place about how they work through things, one or both parties may consider seeking a property settlement.  If no agreement can be reached a Court application is filed, this area of the law is a highly discretionary area. The way the couple have operated their finances, including whether they have substantially intermingled their property or kept their property and finances separate is a key consideration as to approach to be adopted.
There are risks involved in intermingling your property early on in a relationship or purchasing property together without a plan or exit strategy if things don’t go to plan.
If you or someone you know is looking to move in with their partner or are already living with their partner, share this article with them. It is important to be aware of the circumstances where a relationship may start to be considered to be a de facto relationship and to seek initial advice about your specific situation. Once you enquire about your relationship, know that this does not mean your are obliged to take any further steps. Rather it allows you to be informed before you act. It is wise to enquire about your own unique situation to get clarity about how your relationship will be viewed by law and if required, take steps to ensure your assets can be protected in the event of the relationship coming to an end.
Related: About to separate? 5 key considerations you need to know
Why can’t you give me a precise answer about my property entitlement?
How a friend’s divorce advice could cost you
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here.
Written by Fiona Caulley, Accredited Family Law Specialist, Director, Phillips Family Law
The post Could you be in a de facto relationship and not know it? appeared first on Phillips Family Law.

We work closely with our clients and their financial advisors when a relationship is coming to an end and there are dependent children involved. It is an area that has a significant amount of misapprehension, particularly of late.
There have been significant changes to the Child Support (Assessment) Act 1989 and it appears to be an ever-changing field. Just last year in 2018, the changes to legislation were made  retrospectively. When this occurred we contacted all of our clients with a Child Support Agreement in place to let them know they needed to speak with us about their agreement because it may have been no longer valid.
How does the child support process work?
When a separating couple is looking to determine who will contribute funds for what for their children now and into the future, there are four main ways in which that can happen. People either:

Apply for a child support assessment
Enter into a Binding Child Support Agreement;
Enter into a Limited Child Support Agreement; or
Apply to the Court for Child Support Departure Orders.

What’s involved?
Each of these options are used in different situations. Here is each option explained:
A child support assessment is done through the child support agency (Department of Human Services – Child Support). An assessment for periodic child support is made and issued determined by a number of factors including what each parent’s income is, the existing parenting arrangements for the children (which is generally based on the number of nights that the children are spending with each parent), the age of the children and the cost of living index. The agency reviews the assessment yearly as they have access to both parents’ tax returns, although parents can seek to have it reviewed at any time, which is discussed below. The agency has power to ensure that periodic child support is being paid. It is the most widely used approach. This option is easier to change taking into account those variables, and may have positive or negative impacts depending on the circumstances.
If parents have a child support assessment in place they can apply to the Child Support Registrar to seek to change the amount of child support received or paid, based upon special circumstances. For instance, if both parents had agreed for a child to attend a private school and one parent is only paying child support as per the child support formula assessment, a parent can apply to the Child Support Registrar to say they wish the child support to increase as a result of them having to pay those school fees.
Other arguments taken to the Child Support Registrar might be that the amount provided is unfair because of the other parent’s income or earning capacity; or if a parent’s necessary expenses significantly affect their capacity to support a child; or whether the costs of supporting a special needs child affect the parent’s ability to support the child effectively.
A Binding Child Support Agreement is done with both parents seeking legal advice and it is very difficult to terminate unless certain significant issues have arisen. Reasons for termination might include a child turning 18 years, a significant change in the parenting arrangements, the parent paying child support ceases to be an Australian resident or other extenuating circumstances. We recommend including a termination clause in binding financial agreements to allow for changes in circumstances such as the instance of one person’s income becoming significantly reduced. I am adamant in my advice to clients – do not enter into a binding child support agreement unless you can commit to it. It is far better to get an attainable agreement in place now. Because once an agreement is in place, it cannot be amended, it is required by law to be drawn up again in it’s entirety and the other parent must agree. Getting this right the first time means you will avoid the need to seek additional legal advice, and incur additional costs.
A Limited Child Support Agreement is a short term agreement for only three years. A new Limited Child Support Agreement can be entered into after that time or alternatively, a child support assessment or binding child support agreement might be the next step. This limited agreement is sometimes applied when the parents have very young children and there may be uncertainty about the future arrangements for the children such as how much time the children will spend with either parent into the future and/or where the children will attend school. At the end of the three year period the agreement can be reviewed and decisions can be made in relation to parenting arrangements and other significant decisions such as where they will go to school. Parents are not required to obtain legal advice before entering into a Limited Child Support Agreement although we recommend that they do as again, it is difficult to terminate an agreement during the three years it is in place.
If the parents have an administrative assessment in place, they may be able to apply to the Court to seek Orders to depart from the assessment in place if special circumstances exist. A parent can only apply for Child Support Departure Orders in certain circumstances such as there being Court proceedings already pending and the Court is satisfied that it would be in the interests of the parents to consider making orders having regard to the special circumstances. In addition to the Court being able to make Orders regarding the periodic payments of child support, the Court also has the power to make orders for non-periodic child support to be paid. As most parents are able to resolve matters without the need for a Court to make a final determination, parents will often consent to enter into Departure Orders or a Binding or Limited Child Support Agreement.
What were the legislative changes?
The resultant changes made to the Child Support legislation in 2018 were:
Terminating Events – if a parent who is receiving child support as agreed in their binding child support agreement has the children in their care less than 35% of the total time shared, that is now considered a ‘terminating event’. That is, the agreement is no longer valid. A new child support agreement may need to be entered into.
Binding or Limited Child Support Agreement Suspension – there is now the provision for an agreement to be suspended for a period of time if a parent ceases to be an eligible carer (that is, providing less than 35% of care for the children) but continues to be entitled to receive child support pursuant to the terms of the agreement. The time frame is up to 28 days unless the agreement states otherwise or the parents agree or the Child Support Registrar determines it is appropriate in the circumstances. For example, the person who ceased to be an eligible carer is in hospital for a period of time. The maximum time frame for this agreement suspension is 26 weeks. However, an agreement cannot be suspended if both parents are no longer eligible carers of the child and there are no non-parents carers entitled to be paid child support.
What these changes required us to do was to determine if our client or their former partner would be deemed to have ceased to be an eligible carer of a child (that is, someone who is caring for their children less than 35% of the time) and also make them aware of the provision for an agreement suspension period.
What does this mean for parents, accountants and financial advisors?
Due to the retrospective changes made to Child Support legislation last year, be aware that any agreements may need reviewing in the future.
For parents it means that if they want further security about ensuring that their child support arrangements are upheld, they may need to take a further step beyond the child support assessment. What is not always known from the outset is that the child support agency does not have any power to enforce payments made to third parties such as private schools or sport providers. So if parents are concerned about ensuring the payment of third party expenses and want to enforce payments of that nature, they need to seek legal advice about what they should do, such as enter into a child support agreement and registering the agreement with the Family Court, to increase the likelihood of those arrangements being upheld.
For accountants and financial advisors it means that if you have clients who are going through separation and divorce and they have children who are dependents, recommend they seek legal advice. We like to be involved with our clients advisors from the start to know what is being contemplated by both parents. Then you and your client can discuss what is realistically achievable based on the financial information and insights you have at hand. We can then work together to enter an agreement that is realistic and reduces the chances of needing to enter a new child support agreement, and minimise the emotional and financial costs associated.
 
Written by Stephanie Wilkinson, Associate, Phillips Family Law
The post Parents, Accountants & Financial Advisors: what you need to know about how child support works appeared first on Phillips Family Law.

Regardless of whether it’s you that is looking to relocate with your children or your former partner, you need to be aware of some important considerations. In my experience, the issue of relocating with children typically arises when someone needs to relocate to receive family support, is unable to find employment in their area or […]

The post Thinking of relocating with children after separation? Things to know before you start packing appeared first on Phillips Family Law.