Family Law

Belperio Clark recognises that family law is a specialised area and requires specialised and dedicated practitioners who are well experienced in this area. We fully understand the need to be sensitive and to help a family restructure into separate homes. We have a dedicated team of professionals working in this area who can cater for all of your legal requirements at this difficult time.

Court

In family law it is our philosophy that Court should always be a last resort. For those few cases where parties have no option but to pursue their rights in Court, we can manage all aspects of a Court case on your behalf.

For the vast majority of matters, other forms of dispute resolution are preferable to a Court based approach. At Belperio Clark we can offer other methods to help you in your transition through the Divorce process.

Negotiation

For some parties all they need is competent advice about their rights and entitlements and armed with that advice they are able to negotiate their own settlement. Where this option is selected, we are also able to assist with the preparation of the documents necessary to finalise in a formal way any agreement that is reached. If the documents are drawn up by another party’s solicitor, we are able to provide advice to ensure that your interests are protected in those documents.

Mediation

We have two trained and experienced mediators in the firm who are able to assist in a mediator role should that be required. Mediation is a process whereby both parties attend upon the mediator and the mediator assists the parties to negotiate a settlement. If we act as a mediator for you we are not able to give you legal advice but can certainly refer you to other practitioners outside this firm to provide that advice.

Alternatively, if you are having mediation elsewhere, our solicitors are able to represent you in that mediation process to ensure that your interests and concerns are addressed.

We are also able to assist by providing detailed advice in relation to your rights and entitlements prior to you entering into mediation or draft any settlement documents for you to reflect and agreements you reach at mediation.

Lawyer Negotiation

Some clients prefer us to negotiate on their behalf. We are well experienced in this process and after giving advice to you about your rights and entitlements, we can formulate offers to put to the other parties or their solicitor on your behalf as well as responding to any offers that may have been submitted to you by them.

Collaborative Practice

Belperio Clark is extremely excited and proud to now also be able to offer a Collaborative process. Collaborative Divorce is new in South Australia and Belperio Clark is at the forefront of the promotion of Collaborative practice in South Australia.

Collaborative practise is a deeper form of dispute resolution and aims to secure durable long lasting agreements and to preserve relationships between parties into the future. It is for this reason that the process commenced twenty years ago in America in the area of Family Law and has now spread worldwide and is used in all areas of law where it is important for people to preserve relationships. More information about Collaborative Law is on our website. Please click

Family Relationships

We chair and have membership on the Law Society Collaborative Law Committee. We also regularly give presentations about Collaborative practise to lawyers, law students, allied professional bodies and the public. If you are in a community group or body and would like someone to make a presentation about this exciting new development in dispute resolution please contact our office and, we are more than happy to provide a free information session to your group.

In the area of family law we recognise the unique nature of the relationship of a family and for this reason we recognise that it is important for solicitors acting in this area to have regard to the welfare of the children in families that have separated and to assist parties to find solutions that will promote the best interests of the children.

How we can help in family law

At Belperio Clark, we are able to assist you in relation to all aspects of family law including –

Child Residence

There are many options that parents can consider in relation to where their children live, every family is different and has unique considerations that need to be appreciated in properly formulating the best approach for you and your family in relation to where the children live.

Some families are able to share the residence of their children after separation and for some, due to practicality, distance, violence or other concerns, shared residence is not an option.

The best interests of the children are the primary consideration of a Court, and the best interests of the children should always be the primary consideration of their parents.

How much time children spend with each of their parents

How much time the children spend with the parent with whom they do not live requires careful and considered attention.

Every family is different and their special needs and concerns need to be taken into consideration in formulating arrangement for the children.

Children have a right to know and be cared for by both of their parents however this needs to always be considered having regard to the best interests of the child or children.

Sometimes geographical location of the parent or if one parent has relocated interstate or overseas can complicate what might otherwise be simple arrangements.

We are experienced in helping families to work out sensible solutions.

Matters pertaining to parental responsibilities such as who makes long term decisions in relation to health, education
Where families remain intact the responsibility to make long term decisions is a joint and several responsibility, in other words either or both of the parents can make those decisions. This right continues beyond separation unless the Court intervenes and vests the right solely in one parent. These decisions can relate to long term matters such as education, health, religion and the like. The decisions can also relate to day to day decisions such as sport and extra curricular activities, overseas or interstate holidays and the like.

Spousal maintenance

Where one spouse is able to establish a need for spousal support, and where the other spouse has the capacity to meet that need, spousal maintenance may be payable. An application for spousal maintenance must be made within 12 months from the day a Divorce becomes final. There are grounds to extend that time but you should not rely upon achieving an extension of time and should act promptly if you feel that you have an entitlement.

Child support

Child support can be assessed by the Child Support Agency who apply a formula to create an assessment. In certain circumstances parents can apply to depart from that formula assessment. Parents can also reach agreements that vary the amount of child support that would otherwise be payable or the manner in which it is paid. That agreement can be either formal or informal. There are advantages and disadvantages in this regard. Child support can also be payable beyond the age of 18 in limited circumstances. If you have a child with a disability or who is continuing their education you should consider adult child support. Adult child support is not the subject of a child support assessment and needs to be determined either by an agreement between the parties or by order of the Court.

Property settlement

Dealing with matrimonial property after separation sometimes requires some urgent decisions to be made. Who is going to pay the bills, who is the going to pay the mortgage, who is going to live in the house, who is going to have access to the furniture, the car or other property, who is going to conduct the business or take charge of managing investments are just some of the issues that some parties need to consider immediately upon a separation or indeed prior to separation in anticipation of it.

Long term decisions also need to be made in relation to the distribution of matrimonial property between the parties after separation. Property does include superannuation.

If you are able to reach an agreement in relation to property we h3ly recommend that the agreement be embodied in either a Consent Order or a Binding Financial Agreement in order to provide certainty and finality.

If you are not able to reach an agreement in spite of your best endeavours to negotiate a settlement in an amicable way either on your own, with the assistance of a lawyer or through mediation or collaboration, then you can apply for the Family Court who have jurisdiction to deal with matrimonial property.

Sometimes there are issues of urgency that mean an urgent application to the Court is required in order to protect property whilst you are trying to negotiate a final agreement and sometimes urgent applications are necessary for the purposes of the Court making interim orders in relation to the use and benefit of certain assets.

Note that even if you draft up your own agreement and sign it or if you transfer property between you, this will not finalise your matrimonial property unless it is a properly drafted agreement that accords with the requirements of the Family Law Act or unless it is a Consent Order obtained through the Family Court.

We frequently see parties who have believed they have resolved their property between them and then after many years one of those parties looks to have a further adjustment of property and issues proceedings in the Court. If that occurs, it is often more difficult to deal with the property settlement at that stage because the Court looks at the value of the assets at the date of hearing and often assets have been intermingled with third party assets, disposed of or significantly improved since separation which adds complexity to an analysis and negotiation. Timely advice is therefore recommended.

Many parties incorrectly believe that the name in which a matrimonial asset is held is of some relevance. In dealing with matrimonial assets we take into consideration assets held in either party’s name whether solely or jointly with other parties, or any assets in which the party has an interest as well as Trusts, Companies and Businesses in which parties have an interest.

Divorce applications

A Divorce is not available until you have been separated for 12 months. A Divorce is merely the formal ending of a marriage. Property and children’s issues can be resolved prior to a Divorce being granted. The only ground for Divorce in Australia is 12 months separation. There is no need to establish fault. The Divorce itself however does not automatically resolve all other matters that flow from separation in a family. The Divorce is merely a formality and a finalisation of the marriage itself and issues with respect to the children and the property need to be separately dealt with.

Domestic partnership disputes (formerly known as de facto matters)

The Domestic Partners Property Act 1996 applies where parties have lived together as a couple on a genuine domestic basis. Property adjustment can be made between them at the conclusion of that relationship if either party is resident in South Australia when the application is made and they were resident in the State for a whole or substantial part of the relationship and if the relationship existed for at least 3 years or there is a child of the relationship.

Note that an application for the division of property must be made within one year of the end of the relationship unless the Court extends that time limit. You must not assume that you will get an extension of time and as such time is critical when dealing with domestic partnership matters.

Children of a domestic partnership are dealt with by the family Court and they are dealt with in exactly the same way as children of a marriage.

Property is dealt with differently however and at this stage in South Australia there is no entitlement for a superannuation splitting order or for spousal maintenance under the act.

Property can be distributed between the domestic partners. It is always preferable to negotiate a settlement and only go to Court as a last resort if a negotiated settlement fails.

For an agreement to be binding it must be embodied in a certificated properly drafted Agreement. Sometimes it is necessary to issue proceedings to protect a claim if it is nearing the limitation period and if this proves to be necessary, it is still preferable to look to try and negotiate a settlement after those proceedings have been issued before proceeding to trial.

Relocation Issues

Relocation issues occur where the parent with whom the children live with wants to move. The intended move may not just be limited to a move interstate of overseas. It could also be where the parent wants to move intrastate or even some distance away from the other parent.

It is understandable that a parent faced with the prospect of their child relocating on account of a parent will be concerned that their relationship with their child or children will be affected. Simply it will be impossible to spend the same level of time currently spent when the child (for example) lives in a different state.

It is difficult to advise general terms as to possible outcomes of relocation cases, particularly because, there are different views between judges and different interpretations of the legislation.

The Court in dealing with relocation cases must look to the Act in the same way it does when dealing with all other parenting cases. Unless rebutted, there is a presumption of equal shared parental responsibility. If equal shared parental responsibility is ordered, the court must then consider whether it is in the best interests of the child and practicable in the circumstances to spend equal time or substantial and significant time with a parent.

It is here where the difficulty lies with relocation matters as it can be argued that relocation will effect the considerations in respect of whether equal or substantial and significant time should be ordered. Some of those considerations may be minimised on account of the practicability consideration.

The Court must also look at other determining factors to decide the issue including but not limited to:

The constitutional right to freedom of movement;
Whether a meaningful relationship can be maintained if a child and parent live in separate states;
The costs of and burden of travel if the child was to relocate;
Whether the other parent can also relocate.

Grandparents rights

The importance of the role that Grandparents, relatives and members of extended families play in children’s lives is considered in the Family Law Act.

While the best interest principles remains paramount in respect of parental responsibility and live with and time spent for parents it has been extended so that the Court now consider the relationship with grandparents.

Often grandparent’s assist parents in child minding or spend time with the family unit, developing a close bond with the child. They provide the child with an insight into their family history, spend time with the child and provide support to that child.

When parent’s separate, the grandparent’s relationship may too be effected. The time they spent with their grandchildren may become limited by the resident parent an therefore make it difficult for them to remain involved in their grandchild/children’s lives.

Grandparents can be a party to proceedings in respect of the children of separated parties.

Pre Nuptial Agreement, Cohabitation Agreements

It is possible to enter into an agreement in relation to the distribution of property in the event of a breakdown of the relationship either before the relationship or during the relationship.

Under the Family Law act for married partners, and under the Domestic Partners Property Act, for those unmarried couples, it is possible to enter into a Prenuptial or Cohabitation Agreement. The agreement can deal with all aspects of your property and financial arrangements in the event of a breakdown of the relationship.

At Belperio Clark we understand the high level of emotion that is involved when families separate. You do not need to be alone at this difficult time. Contact us to arrange an appointment with one of our lawyers.