When is Legal Advice Recommended, and Why?
If you have a legal issue it is always a good idea to get independent legal advice before you make any important decisions, and certainly before you agree to any kind of agreement or settlement.
In family law matters there are three types of legal issue that generally apply:
The most important factor when making decisions regarding children is the best interests of those children. This applies whether your matter is in Court or not – so if you are trying to reach agreement through lawyers or through Family Dispute Resolution, then any agreement should support this.
The Family Law Act 1975 states it is in a child’s best interests that:
- they are protected from physical or psychological harm, abuse, neglect and family violence;
- both parents have meaningful involvement in the child’s life, where possible; and
- the child receives proper parenting to help reach their full potential, and each parent meets their responsibilities as a parent.
A lawyer will be able to explain to you how the Federal Circuit Court and Family Court of Australia (FCFCOA) determines what is in the best interests of children, and how it might apply to your child, and the types of orders the Court might make in your circumstances, if you went to Court. That advice may be very useful before you start negotiating care arrangements.
Your lawyer will also be able to explain when and how variations can be made to parenting agreements, parenting plans and orders in the future.
The Court has information available on Parenting cases – the best interest of the child.
The general principles for a Court to settle financial disputes under the Family Law Act 1975 are based on:
- Working out your assets and liabilities; that is, what you’ve got (including superannuation) and what you owe; and what they are worth;
- Looking at the contributions made by both parties during the marriage or relationship including:
- direct financial contributions to the acquisition, conservation or improvement of any of the property, such as wage and salary earnings;
- indirect financial contributions to the acquisition, conservation or improvement of any of the property, such as gifts and inheritance from families;
- direct and indirect non-financial contributions to the acquisition, conservation or improvement of any of the property.
- contributions to the welfare of the family, including any contribution made in the capacity as parent and homemaker
- The future needs of the parties having regard to things such as age, health, care of children, income and financial resources of the parties.
These often require analysis and advice by both an accountant and a lawyer so you are in a good position to make informed decisions prior to entering into negotiations.
The Divorce itself is reasonably straightforward and there is a kit available on the Court’s website.
There are however important time limits in terms of length of marriage, limitation period for property settlement following divorce, and service of documents. It is therefore recommended that legal advice be sought prior to making an application for divorce.
Before signing any documents relating to parenting, property settlement or divorce, it is recommended that you obtain independent legal advice.
Family Dispute Resolution
Family Dispute Resolution (FDR) is not a legal service as Family Dispute Resolution Practitioners (FDRPs) cannot provide any legal advice, however the service and the practitioners are registered and governed by the Family Law Act 1975. More information on this can be found on the Federal Attorney General’s website.
The law requires separating families who have a dispute about children to make a genuine effort to try to sort it out through FDR before filing an application for parenting orders in Court. This requirement applies to anyone wanting to file an application with the FCFCOA. It also includes those seeking changes to an existing parenting order. There are a few exceptions to this requirement, such as cases involving family violence, child abuse or urgency. A lawyer will be able to advise you whether or not the exceptions apply to you, and what you need to file in Court.
An FDR practitioner is an independent person (a mediator) who can help people discuss issues, look at options and work out how best to reach agreement in disputes about children or property. You can search for an accredited FDR practitioner who has consented to be on the Family Dispute Resolution Register.
It is important to obtain independent legal advice before signing any documents purporting to represent any agreement reached at FDR.
Collaborative Practice
This is a form of lawyer-assisted family dispute resolution where lawyers work together (sometimes in conjunction with other collaboratively trained professionals) to facilitate child and family focused discussion between the parties, with the aim of reaching mutually acceptable negotiated settlements. It is a process involving confidential and transparent negotiations that take an interest-based, team approach, as opposed to one that is rights-based or adversarial.
Some important information about collaborative practice, including its pros and cons can be found on the Australian Institute of Family Studies website.
Find a Family Law Lawyer
When choosing a family law lawyer, it is important to find a lawyer who is experienced in family law so that you know you are receiving expert advice. SA Family Law Pathways is pleased to provide you with an App that details family law lawyers including their experience, qualifications, fees and payment options, as well as other languages spoken, related experience and specialist accreditation.
The App is called Find a Family Law Lawyer. It should be noted that these are lawyers who have kindly provided information to us to share with you. There may be other lawyers who meet your needs who are not listed. The Law Society of South Australia also has a lawyer referral service to assist you.
The Find a Family Lawyer App contains details of lawyers in private practice, Legal Service Commission, and community legal services. Legal services that are free or low cost are listed below and also listed in our iRefer App.
Parenting and Property Settlement if Your Relationship is Amicable
National Legal Aid and the Legal Services Commission of South Australia, with support from the Australian Government have developed an online platform that helps separating couples to work out Parenting & Financial Plans – known as amica:
- amica provides you with a user-friendly way to work out parenting arrangements that work for your family, and record them;
- amica uses artificial intelligence to make suggestions about dividing your money and property based on the information that you enter. The artificial intelligence considers legal principles and applies them to your circumstances;
- amica can also complement Family Dispute Resolution by helping you determine the asset pool before you start negotiating, and by preparing documents after agreement has been reached.
It is important to note that amica may not be suitable in your circumstances. It is still important to obtain financial and legal advice before reaching agreement.
Further Information about Family Law
The FCFCOA has provided a glossary of legal words used in Court, and a lot of other useful information on parenting, property and divorce matters can be found on the FCFCOA website. You can also find a copy of the Court’s media releases on our Resources page.
The Legal Services Commission of South Australia also provides an online Law Handbook with a large section on Family Relationships.
