AREAS OF EXPERTISE

1. Property/ Financial Settlement

We understand that going through a separation can be one of the most stressful and arduous
times of our clients’ lives. Often a significant concern for our clients is the prospect of facing,
sometimes suddenly, financial upheaval and instability.

At Bellarine Family Lawyers, we are familiar with the processes involved in ensuring that you
achieve a property settlement that you are legally entitled to, from start to finish. We are here
to help you with any and all of your questions, from the complex (i.e. asset pools with complex
business structures, family trusts and the like) to the less complicated, but no less important
(such as who is to retain the former matrimonial home).

The process in achieving a property settlement may be overwhelming for clients, and we are
here to assist with any and all aspects of negotiation and settlement, including:
- advising whether it is just and equitable for you (or your ex-partner) to be making a claim for
a property adjustment;
- identifying what assets, liabilities and financial resources form part of the net property pool;
- ascertaining the value of your and the other party’s assets, liabilities and financial resources;
- assessing your and your partner’s contributions to the relationship/marriage, including
financial, home-making and parenting, and non-financial;
- advising whether a further adjustment should be made in one party’s favour on account of
any future needs factors, such as an income disparity, and whether a party has the primary
care of children.

We will provide you with legal advice that is clear, comprehensive, direct, and pragmatic in a
friendly and unjudgmental yet professional manner. We firmly believe that no question of yours
is too frivolous, and we would be pleased to ease your worries, and take, where possible, the
burden from you.

Upon a settlement being negotiated, we are adept at ensuring that that your entitlements
pursuant to that agreement are protected from further claim, by preparing legally binding
documents, such as an Application for Consent Order and Minutes of Consent Orders, or if
appropriate, a Financial Agreement made pursuant to the Family Law Act 1975.

We strive to achieve a just property settlement for you, as swiftly, inexpensively and amicably as
possible without the need for Family Law Court proceedings. However, if the need arises, we
also have extensive experience in litigation in the Federal Circuit and Family Court of Australia,
and can prepare all necessary documents in support of your claim, and assist you through every
step of the way.

We also have strong relationships with various experts that may be required to aid your matter,
such as barristers, real property valuers, business valuers, accountants, family report writers and
the like.

2. Children’s Arrangements
One of the most important issues to be negotiated following a separation is the arrangements regarding
the children.

Generally speaking, the two most significant aspects to be decided regarding the children are:
- Who has parental responsibility for the children; and
- With whom the children should primarily live, and how much time they should spend with
the other parent (if not equal time).

The Family Law Act 1975 defines parental responsibility as the duties, powers and responsibilities and
authority which, by law, parents have in relation to children. It is presumed under the Act that, unless in
unusual circumstances, each parent has equal shared parental responsibility- meaning that each parent
should be playing a role in making long-term decisions for their children (such as medical, education and
the like).

If the parents have equal shared parental responsibility, a Family Law Court must consider whether or
not it is appropriate for the children to spend equal time with each parent, and if that is reasonably
practical, or in the children’s best interests. This does not mean that an equal time arrangement is
guaranteed, and we find that more often than not, the parents (and the Court) consider it is in the
children’s best interests for children to live primarily with one parent, and spend significant and
substantial time with the other parent.

If you and your former partner are able to reach an agreement regarding your children’s arrangements,
this agreement can be documented in a variety of ways:
- an Application for Consent Orders and Minute of Consent Orders (“Consent Orders”), which
are endorsed by a Family Law Court; or
- a Parenting Plan.

Consent Orders are legally binding, and there can be legal ramifications if a party does not abide by the
terms of those Orders without reasonable excuse.

A Parenting Plan is a less formal document that is not legally binding, but can give each of the parties
greater flexibility to vary the children’s arrangements in the future.

Each of these documents can outline a plethora of issues, such as:

- who has parental responsibility;

- the days and times that the children spend with each parent on a regular basis;
- how special occasions are to be enjoyed by the children and with which parent, if not both
(such as a child’s birthday, Christmas and the like);
- arrangements over the children’s school holiday periods;
- the prospect of the children having a passport and enjoying an overseas holiday with a
parent;
- methods of communication between the parents;
- authorities to the children’s school, medical practitioners and the like to discuss the
children’s progress with each children;
- if appropriate, restraints on a parent regarding various issues, such as excessive alcohol use,
drug use, family violence and/or not denigrating the other parent to the children.
If you and your former partner cannot reach an agreement regarding the children and have attempted
to resolve the matter by way of alternative dispute resolution, then you can make an application to the
Federal Circuit and Family Court of Australia (“the Court”) to determine such issues, and make legally
binding Orders. At all times, the Court must prioritise the children’s best interests. The Court also often
utilizes various experts, such as psychologists, to prepare a family report, and we can provide you with
advice regarding such processes.

The Court must consider, where applicable a variety of matters when determining what Orders should
be made regarding a child, including:
- primarily, the benefit to the child of having a meaningful relationship with both of their
parents and the child’s right to be protected from physical or psychological harm, abuse,
neglect or family violence;
- the nature of the child’s relationship with each parent or any other person;
- the age and maturity of the children;
- the extent to which a parent has taken or failed to take the opportunity to spend time with
a child, or make a long-term decision;
- the capacity of a parent to provide for the child’s needs;
- the practical realities involved in spending time with each parent; and
- any family violence issues.

Bellarine Family Lawyers has extensive experience in children’s matters, and can assist you with virtually
all aspects of your children’s matter, including advising you as to your prospects for your preferred
arrangements, negotiating with your former partner, drafting Consent Orders and/or a Parenting Plan,
and if appropriate drafting Court documents to initiate Court proceedings.

If your matter is urgent, we can swiftly act and prepare documents to protect your children’s rights, and
preserve your relationship with them.

We can also provide advice to other people that have a significant role in children’s lives, such as
grandparents and whether they have any grounds to seek time between themselves and the children.

At Bellarine Family Lawyers, we understand the practical complexities involved in raising children in two
households, and can assist you in ensuring those complications are minimized as much as reasonably
possible. We would be delighted to assist you in configuring the next chapter of your and your
children’s lives.

3. Divorce

Bellarine Family Lawyers can assist you with your divorce, which is the legal dissolution of your marriage.

Generally speaking, you can apply for a divorce in the Federal Circuit and Family Court of Australia:
- if you and your former partner have been separated for more than 12 months, irrespective
of whether or not you are still living in the same home for practical reasons;
- you have a sufficient connection to Australia, such as being an Australian citizen, and have
been living in Australia for the past 12 months;
- before or after your property settlement has been finalized;
- before or after your children’s arrangements have been resolved.
You do not need your former partner’s permission to apply for a divorce, and simply speaking, there are
ways you can still achieve one without the other party signing any documents, if they do not wish to
participate in a joint application.

We can assist you in preparing and lodging these documents, and if necessary, attend any Court events.

We can also provide you with advice regarding any time limits (known as limitation periods) that take
effect from your date of divorce, such as a limitation period to make a claim for a financial settlement.

4. Application for Consent Orders/ Financial Agreements

There are only three ways that a family law property settlement can be documented so it is
legally binding and enforceable:

1. An Application for Consent Orders and Minute of Consent Orders;

2. A Financial Agreement which is made pursuant to the Family Law Act 1975; or

3. Court Orders being made by a Family Law Court in the midst of a Court proceeding.

It is prudent to know that an agreement in writing, even if it is signed by both parties, is unlikely
to be sufficient, and the parties may be exposing themselves a further claim for a greater share
of the property settlement against them if the agreement is not enforceable, and properly
documented. This remains the case, even if the parties have already transferred their assets to
one another, such as the former matrimonial home.

An Application for Consent Orders and Minute of Consent Orders, generally speaking,
comprises two documents- the Application itself, and the proposed Consent Orders. The
Application is a lengthy form that outlines each of the parties' assets, liabilities and
superannuation, an overview of the value of the net assets each party will be retaining under
the terms of the agreement, and details briefly the parties' respective contributions and any
future needs factors.

The proposed Consent Orders are a 'wordier' document, and stipulate the logistics surrounding
how the parties' assets, liabilities and superannuation are to be divided (such as providing a
time frame for a party to make a payment to the other party, and transfer/refinance the former
matrimonial home and its associated mortgage). Upon these documents being signed, they are
then lodged at a Family Law Court. A judicial officer will endorse the agreement if is just, fair
and equitable (please note not necessarily equal) and make the Orders, following which they
are legally binding and enforceable.
A Financial Agreement is akin to a contract, but for it to be legally binding and enforceable, it
must abide by the very strict requirements as detailed in the Family Law Act 1975, including:

1. Each party must receive independent legal advice;

2. The parties' respective lawyers must confirm/ sign the agreement too confirming they
have provided that party with advice about the advantages and disadvantages of the
Financial Agreement.

The Financial Agreement does not need to be just, fair and equitable, nor is it lodged at a
Family Law Court. It is enforceable upon signing by the parties and their lawyers, provided it
otherwise complies with the requirements of the Family Law Act 1975.

If the parties are unable to resolve their family law property settlement matters without the
assistance of a Court, or a party refuses to participate in negotiations, a party can make an
application for a property settlement in the Federal Circuit and Family Law Court of Australia to
progress their matter. Following this, Court Orders may be made by a judicial officer with the
parties' consent (say if the parties reach an agreement in the midst of the litigation), or without
the parties' consent (for example, following a Final Hearing).

At Bellarine Family Lawyers, we have extensive experience in drafting such documents and
understand the technical nuances required to ensure your agreement is protected, or
alternatively, advance your matter to Court if you are concerned you may not be receiving a
just settlement.

5. Child Support

Child support is, generally speaking, the payment made by one parent to another, to assist with
the costs involved in raising children.

An application for child support is usually made via Services Australia (Child Support), following
which an assessment will be undertaken to ascertain how much the 'paying' parent has to pay
to the 'non-paying' parent, in accordance with legislation. Various factors influence the
assessed rate, such as the parents' respective incomes, and how much time the children are in
each of the parents' respective care.

If you find the child support you are receiving is not sufficient (or alternatively the paying party
find the amount reasonably too arduous) to meet the children's expenses, there are avenues
you can take to vary the assessed amount, such as appealing the assessed amount via Services
Australia, and/or in certain circumstances, making an application to the Federal Circuit and
Family Court of Australia.
In addition to negotiating a property settlement, the parties may also negotiate the amount of
regular child support payments to be made by one parent to the other (if one or both do not
find the assessed rate to be appropriate). The parties may also negotiate non-periodic child
support payments such as entering into an agreement to ensure various children's expenses
(such as payment of private school fees, extra-curricular activities, private health insurance) are
also met by the parties (or one of them) in an agreed proportion.

If you reach an agreement regarding child support, this may be formalised by way of a Binding
Child Support Agreement or Limited Child Support Agreement. For these types of child support
agreements to be enforceable, they must comply with strict requirements as outlined in the
legislation.

At Bellarine Family Lawyers, we would be delighted to assist you in achieving a just resolution
for all aspects of your post-separation finances, including a fair property settlement, and an
appropriate support for your children’s expenses.

6. De Facto Relationship Law

The Family Law Act 1975 provides a party the opportunity to make a claim against their former
de facto partner for an adjustment of property (i.e. a property settlement) similar to one would
post matrimonial separation, provided they lived together for more than two years (unless
exceptional circumstances arise). The party must make an application within two years of
separation, but again, there are exceptions to this.

Similar to matrimonial matters, the factors that influence a party’s entitlement to a property
settlement include:

1. The initial financial contributions of each party (i.e. what assets each party brought into
the relationship);

2. The financial contributions of each party during the relationship;

3. The non-financial contributions of each party during the relationship;

4. The home-making and parenting contributions of each party during the relationship;

5. The parties’ respective future needs, such as income-earning capacity, whether a party
has the primary care of a child and the like.

Upon a property settlement being negotiated, the parties may formalise this agreement in one
of two ways:

1. An Application for Consent Orders and Minute of Consent Orders; or

 2. A Financial Agreement that complies with the Family Law Act 1975.

If the parties cannot reach an agreement, a party can make an application to the Federal Circuit
and Family Court of Australia for an adjustment of property. Court Orders can then be made by
the Court with the parties’ consent (say if they reach an agreement during such Court
proceedings), or without the parties’ consent (following a Final Hearing).

If your de facto relationship has recently ended and you are unsure of your entitlements, please
contact us at Bellarine Family Lawyers and we would be pleased to assist.

7. Same Sex Relationship Law

Parties to same sex relationships (irrespective of whether they were married or in a de facto
relationship) have the same rights for an adjustment of property settlement and spousal
maintenance, as opposite sex relationships/marriages.
The process in achieving a property settlement is the same, and include:
- identifying what assets, liabilities and financial resources form part of the net property pool;
- ascertaining the value of the parties’ assets, liabilities and financial resources;
- assessing the parties’ respective contributions to the relationship/marriage, including
financial, home-making, parenting and non-financial;
- determining whether a further adjustment should be made in one party’s favour on account
of any future needs factors, such as an income disparity, health issues, and whether a party
has the primary care of children.

If the parties cannot reach an agreement about the division of their property, then a party may
make a claim in the Federal Circuit and Family Court of Australia for an adjustment of property
(and also spousal maintenance, if appropriate). Following this, the Court will determine what
each party’s respective entitlements are and can make Court Orders to that effect, with or
without the parties’ consent.

In the event the parties reach an agreement for their financial matters without the assistance of
a Family Law Court, this agreement can be documented in one of two ways:

- An Application for Consent Orders and Minute of Consent Orders; or

- A Financial Agreement that complies with the strict requirements of the Family Law
Act 1975.

If your relationship has recently ended, we would be pleased to advise you as to your rights and
options with respect to achieving a fair financial settlement.

8. Spousal maintenance
Spousal maintenance is the payment that one party makes to the other party to assist them
with their reasonable expenses. This is separate to the expenses associated with children,
which is encompassed by child support.

The factors that influence a party’s right to claim spousal maintenance can be complex, but
generally include:

1. The parties’ respective income(s) and/or income earning capacity;

2. A determination of what is each party’s reasonable living expenses.

If you are struggling to meet your expenses, and you believe your former partner has the
capacity to contribute to those expenses, then you may have the grounds for a successful claim
for spousal maintenance. Please contact Bellarine Family Lawyers if you would like some advice
about your rights.

9. Intervention Orders/ Family Violence

An Intervention Order is an Order made by the Magistrates’ Court of Victoria against a party
which is designed to protect a person (or other persons, such as children) from family violence.

Family violence is broad, and can include:

- Physical abuse;

- Violent, threatening, coercive and/or controlling behaviour;

- Emotional abuse;

- Financial abuse;

- Sexual assault; and

- Economic abuse.

More specific examples in the Family Violence Protection Act 2008 are varied, and include:

- Stalking;

- Assault;

- Repeated derogatory taunts;

- Interntionally damaging or destroying property;

 - Unreasonably withholding financial support.

The Court will make a Final Intervention Order if the Magistrate is satisfied:

- Family violence has occurred against the affected family member; and

- The Respondent is likely to continue committing family violence.

The Magistrate can make various conditions against the Respondent, such as not attending a
person’s home, a child’s school, restraining them from contacting the affected family member
and the like.

Intervention Orders are fairly commonly applied for in the midst of a relationship breakdown,
and it may affect children’s arrangements.

If you are subject to an Intervention Order (or an application for one), then we would be
pleased to advise you as to how to respond to this (whether it be to consent or contest a Final
Intervention Order being made), or how it may affect negotiations for children’s arrangements.

Alternatively, if you are concerned about your former partner’s behaviour, and think you may
have grounds for a successful application for an Intervention Order, then we similarly are happy
to advise you to ensure you and your children are protected.