The Family Law Act and the Family Law Rules provide the legal framework which governs how people who are separating reach formal agreements about their finances and the future care arrangements for their children.
The Act provides an umbrella under which people who are often upset and stressed can operate, because as family lawyer Merridy Elphick knows all too well, in such situations, everybody hurts.
“The practice of family law exists because there are disputes between separated couples and the need for there to be formal channels within which legal title can pass between those parties and a mechanism is provided for dispute resolution,” said Ms Elphick, principal lawyer at Merridy Elphick Lawyers in Newcastle.
“The angst in family law matters between those no longer in love is often palpable.”
However, not all family law matters have to be formalised. If the parties are able to reach agreement about the future care arrangements for their children privately, then there is no need for lawyers or the courts to intervene because the children’s needs are being met by the adults in their lives.
“Alternatively, parents may wish to record the agreement in a Parenting Plan or obtain formal court orders. It depends on the circumstances of each family.
Property matters are a different kettle of fish.
“Unless you formalise a property settlement with appropriate documentation there is always a door open for someone to change their mind,” Ms Elphick said.
“It’s always preferable for people who have property issues and are separating to seek legal advice, and where possible, to reach agreement and have that agreement drafted by a lawyer.”
Going to court is a process not for the fainthearted.
“It can be emotionally draining, expensive and time consuming,” Ms Elphick said.
“For that reason, in children’s matters, in particular, lawyers are under an obligation to attempt to keep the matter out of court.
“If a parenting matter goes to court it is generally because there is some perceived risk to the child or the parents can’t agree about care arrangements despite the intervention of mediators, family counsellors and lawyers.”
In property matters Ms Elphick says many clients come to an agreement with their spouse before the matter goes to court, but a proportion also need assistance.
“Where people go to court they generally can’t agree about what the asset pool is worth or what proportion of the asset pool should be retained by each of the parties.
“In property matters involving a business it is not uncommon for a dispute to arise as to the value of the business.
“In those situations I work with accountants who are often independently advised and also the businesses accountants in an attempt to reach an agreement as to the value of that asset.
“These expert opinions can at times be provided to the Court to assist it in making a decision.”
A good family lawyer will explain the benefits of reaching an agreement outside of the Court and the benefits of doing so formally, while clearly outlining a range of possible outcomes.
“The practise of family law is very subjective and Judges have wide discretion in determining matters. A good lawyer will often provide a range of possible outcomes in any one matter because of this judicial discretion and the different weight a court may give to the factors in consideration.
“If a client is determined on taking a particular course of action a good lawyer will also advise of the risks and advantages of that course of action.
“At the end of the day it’s impossible to pre-determine an exact cost of any litigation but clients should expect their lawyers to provide guidance and estimates of time and expense at each stage.”
Merridy Elphick Lawyers is a boutique family law practice located on Hunter Street that deals exclusively in family law. Most client’s come to the business by way of word of mouth based on the firm’s reputation for quality legal work in a complex and sensitive area of the law.
“We trade on that reputation. Clients want to know and trust in the skills and legal knowledge of their legal representatives,” Ms Elphick said.
For Ms Elphick the success in family law matters varies from person to person.
“For some people its achieving the outcome they want; for some it’s moving on with their lives; for some it’s knowing they have done all that they can for the best interests of their children; and for business owners it is often being able to return to what it is they do without the threat of litigation.
“At the end of the day success is about being able to reach a timely resolution, when clients are emotionally invested and want the best possible outcome.”