Answers to Frequency Asked Questions

There are some amazing professionals working in the family law sector that we highly respect. We have put together a list of our client’s frequently asked questions for them to answer and we know you will benefit greatly from their expertise.

Gordon Ainger of Eales & Mackenzie

Mention figures to some people and their eyes glaze over.  I have seen it with some clients: an inability to process financial information.  For forensic accountants, its their daily routine.  Getting someone who can crunch the figures is invaluable.  A forensic accountant can explain questionable transactions, point you in a new direction of enquiry, help find the trail of missing moneys, and assist you to collate the evidence which is required once in a court setting.  Courts, and lawyers, act on evidence, not allegations, hunches or guesswork, so the assistance of forensic accountants is incalculable.  They can help you prove what you have always suspected concerning financial mismanagement or missing moneys in a manner a judge can take into account, or conversely, put your mind at ease by demonstrating that nothing untoward has occurred.  The evidence they produce can help clients unravel complicated structures and so help people get what they are actually entitled to.

Gordon Ainger of Eales & Mackenzie

The largest percentage one of my clients obtained was 92.5%.  This was based on two things – the circumstances of the relationship (it was short, only a couple of years, each party’s second or third relationship, and there were no children) and my client had owned the vast majority of the assets at the start of the relationship.  Such a huge difference is rare, however it is theoretically possible but incredibly unlikely for one party to get 100% – or even more.

Gordon Ainger of Eales & Mackenzie

Before thinking about the valuation, make sure that you have all the relevant information – bank statements, the business financials – and a good understand of how the business works.  Valuation are complicated, and time consuming, and it is a process you will want to play a part in.  You will get more out of the process – and the end result – if you understand what is going on and can contribute to the valuation exercise.  In terms of timing, just remember that the first step in any negotiation process is to understand what is in the asset pool – and what it is all worth, so you should get started on that process as soon as possible.

Gordon Ainger of Eales & Mackenzie

This is a complicated one, and it really depends on your own personal financial situation.  Your joint accounts might be part of a larger structure where bills are paid and/or income received, and closing an account on its own may be disruptive.  Maybe you have no access to any other funds, so if you rely on that account for day-to-day living and there is no dispute about that arrangement continuing short term, closing the account might cause you hardship.  Remember though that joint accounts will be closed either at, or before final settlement so if you are reliant on the account, make sure you have access to alternate funds before agreeing to its closure.  If you already have access to your own funds and the account is not linked to some other investment or structure then there is no impediment to closing it straight away if you both agree.

Gordon Ainger of Eales & Mackenzie

People can fight about the family home for a long time.  Logically, if there are children, whoever has the strongest bond with the children should stay, which will allow the children to stay in their home with minimal disruption in the short term.  It does not always work like that, and you cannot force a person out of their home without strong legal grounds to do so, like where there has been family violence.  Some families have the benefit of owning more than one property so each separated spouse can have separate accommodation, but not every family has that privilege.  If you come home one day and the locks have been changed you should get legal advice as soon as possible.  Just remember that conflict affects children in ways you cannot pre-determine and you should try to avoid conflict because its effects on children can be permanent.

Gordon Ainger of Eales & Mackenzie

If you do not have enough income to meet your usual, reasonable expenses, and your former partner can afford it, you might be entitled to spousal maintenance.  This is different from child support, which is specifically designed to ensure that both parents contribute financially to their children in the capacity they have to do so.  If you have access to funds after separation you may not want to “rock the boat” on this issue, but if you do not have access to funds, or if your access is withdrawn, you will need to consider making a demand for spousal maintenance which might, eventually, involve court proceedings.

Gordon Ainger of Eales & Mackenzie

Answering this is a bit like answering the question “How long is a piece of string?”  Each family is different, their needs are different, and the psychology different.  For some people separation causes a huge disruption, and the formal ending of the marriage by a divorce order is psychologically necessary.  For some others, separation is not such a big deal and their lives go on as if unaffected.  Most people fall somewhere in the middle.  What is certain is that you must have been separated for at least 12 months before you can apply for a divorce order and it is not possible to shorten those 12 months.  Whilst getting divorced after separation is not compulsory, if you do not take the step to formally end your marriage, remaining legally married to your spouse can cause problems later in life from an estate planning perspective.

Gordon Ainger of Eales & Mackenzie

The short answer is no.  The Family Court has the ability to make orders which effect all assets a person may own, including pre-relationship assets.  The real question to ask is:  “What is the strength of my former partner’s claim over my pre-existing superannuation?”  For most people, that claim is very weak and frequently pre-relationship super is excluded from negotiations.  The legal basis for its automatic exclusion is however not strong, and I have had cases where orders have been made which have split pre-relationship super even though one party had sought to exclude it from the pool.

Gordon Ainger of Eales & Mackenzie

The consistent failure to provide information is a bad sign.  It is probably an indication of a bigger problem and will require court intervention.  There is, unfortunately, no out-of-court process which can compel your former partner to provide information.  Only a court can do that.  Once there are court proceedings on foot there are rules which apply, orders for the provision of documents which are routinely made, and you can file subpoenas which then force third parties like banks or accountants to provide documents.

Gordon Ainger of Eales & Mackenzie

This can be a complicated situation to be in.  The response starts with understanding the finances and knowing when the information put forward by the other side looks suspicious.  It’s hard to identify deliberately incorrect statements if you have little or no understanding of the ins and outs of the finances.  Where your former partner is providing incorrect information which you know is wrong but you have no evidence, you should consider filing an application in the Family Law Court and so use the court’s powers to obtain independent corroborating evidence to disprove the incorrect statements.  In extremely serious cases – say, where a person deliberately tells serious lies to a court, that might be an offence.  You need to remember 2 things about court though when considering this question.  Firstly, in family law matters, the judge is likely to take a pragmatic approach, and proving lies is not only difficult but sometimes an impediment to settlement or perhaps, even if proven, the untruths might not change the end result.  Secondly, what seems obvious to you may actually be hard or even impossible to prove which, I know, clients find frustrating and challenging.

Gordon Ainger of Eales & Mackenzie

If you both want the home sold there is no problem.  Separated spouses can do practically anything if they agree.  Where there is no agreement there can be difficulty.  For some people houses are only “bricks and mortar” but for others there can be a sentimental attachment.  Practically, there might be financial or other impediments to obtaining new accommodation, for example, a stay-at-home mum with children might be resistant to the sale if there is no other accommodation for her and the children.  Where there has been agreement to sell and the other side is holding up the process, your options are limited.  Perhaps the reason for the other party’s delay can be dealt with if it is a single issue, but if this is a part of a larger pattern of thwarting progress towards a reasonable settlement then court might unfortunately be the preferred option.  Going to court where your only dispute is about the progress of selling the property is unlikely to provide you with an early sale because of the delays inherent in the family court system so you might be better off negotiating something sooner rather than waiting for the court process to grind slowly to a result.

Dianne Loveday of Bayside Mediation

FDR is a process prescribed by the Family Law Act. The FDR process requires both parties to initially attend an intake interview separately during which the FDR practitioner provides the parties with information about the mediation process, the relevant legal principles as well as helps the parties identify the issues in dispute and generally prepare for mediation. During the intake interview, the mediator will also determine whether mediation is appropriate and if so, bring the parties together for the joint session to mediate their issues.

Dianne Loveday of Bayside Mediation

Financial and Property settlements can take up to 3.5 years to reach final Court hearing which will cost both parties hundreds of thousands of dollars. Equally, using lawyers to negotiate financial settlements will also cost tens of thousands of dollars, will take a very long time and is likely to entrench the conflicts. FDR Mediation offers separating couples a much quicker, less expensive, non-adversarial alternative to using lawyers and the court system.

Dianne Loveday of Bayside Mediation

There are many people using the term ‘mediator’ but only those professionals with the Graduate Diploma of Family Dispute Resolution are registered with the Attorney General’s Department and authorised under the Family Law Act to mediate family law matters and issue s60I Certificates for both parenting and financial matters.

Dianne Loveday of Bayside Mediation

Each person has the right to initiate mediation and the other party is expected to attend.

You could discuss your concerns with the FDR mediator and see if a compromise can be met, it is after all mediation. If it is a children’s matter and you choose not to attend, the mediator may issue the s60I certificate.

Dianne Loveday of Bayside Mediation

Good FDR practitioners will offer shuttle mediation, this is where the parties are in separate rooms.

Dianne Loveday of Bayside Mediation

If your former partner chooses not to attend, the FDR practitioner can issue a s60I certificate which will enable you to initiate court proceedings. The s60I Certificate is required before you can issue parenting proceedings in the Family Court, however financial matters can be initiated without a s60I Certificate.  A good FDR practitioner will be able to refer you and your former partner to relevant support contacts such as lawyers, psychologists and financial advisers if mediation does not go ahead.

Dianne Loveday of Bayside Mediation

In cases of extreme violence, you can seek an exemption from mediation.

But FDR does provide an opportunity for couples to mediate even when there is abuse or an IVO in place, in these cases mediation often occurs in the shuttle format.

Dianne Loveday of Bayside Mediation

An FDR mediator takes the place of two lawyers, as such each party is billed separately and responsible for their own account.

Dianne Loveday of Bayside Mediation

If it is a children’s matter the FDR mediator can end the mediation and issue a s60I certificate that will indicate that the other party did not make a genuine effort. You can then make an application to the court for your costs, if the matter proceeds to court. If it is a financial matter, then the skill and experience of your mediator is paramount. Strong FDR representation will include the ability to keep clients engaged with the process.

Dianne Loveday of Bayside Mediation

Agreements reached in Family Dispute Resolution (Family Law Mediation) can be made legally binding by applying to the Court for Consent Orders or asking lawyers to draft a Binding Financial Agreements. Some mediators can assist you with writing up Consent Orders on your own behalf.

Dianne Loveday of Bayside Mediation

In financial mediations, it is a requirement that there be ‘Full and Frank Financial Disclosure”. A forensic accountant is often required to investigate,  and understand values of assets, find hidden assets, provide business valuations and may be able to assist you with financial planning post separation.

Our Contributors

Gordon Ainger

Eales & Mackenzie

Gordon has been working in family law for 20 years.  As you can imagine, he’s seen it all.  Being a specialist accredited by the Victorian Law Institute, he has helped people from all walks of life sort out their legal issues associated with the end of their relationships.  Gordon has worked in suburban, country and city firms and has seen first hand the effects separation has on people from a wide variety of backgrounds and he works with other professionals to minimize conflict and help people get on with the rest of their life as soon as possible.  In addition to helping children find their voice in court proceedings as an Independent Children’s Lawyer he has conducted intricate litigation involving complex business structures, assets held overseas, and non compliant parties.  His clients find his strategic advice invaluable.

Dianne Loveday

Bayside Mediation

Dianne Loveday, a Nationally Accredited Family Dispute Resolutions Practitioner and Mediator with an Undergraduate Diploma in Psychology, supports and assist couples and their children through separation and divorce. With more than 10 years’ experience working as an FDR Mediator and a further 20 years as a business owner, Dianne launched Bayside Mediation in 2013. She understands her client’s requirements for a confidential, timely and impartial approach to their family’s needs, as they separate their lives and their assets. Dianne’s clients benefit from her experience, knowledge and training in Family Law, as she is able to help her clients make sense of the ‘process’ of Family Law and support and clarify the choices available to them. Dianne’s goal is to minimise the stress and confusion involved when dealing with the Australian legal system, helping her clients make better decisions for their families.