Did you know that you can phone to have a free 10 minute or so chat with one of our lawyers at any time during business hours? Usually we have a solicitor who can take your call right away, or if not, can all you back within the hour. Alternatively,  Or you can email us on enquiries@journeyfamilylawyers.com.au for a free email response. This helps many people each week and we are happy to do this and give you the information that gives you some clarity about your legal position. Sometimes this is all people need in the early stages of their separation or divorce journey.

If you are ready for more detail, though,  you can also  have an hour long, confidential , no obligation consultation on property settlement and divorce, children’s custody issues, or any other Family Law matter with a Journey Family Lawyer for $143.00 GST inclusive? If you cannot get to one of our offices, in Strathpine, Spring Hill or the Sunshine Coast, then why not have a phone conference for an hour. We do it a lot, and we even have clients from interstate and overseas that we never see. These days with email it is much easier to have long distance representation.  We have helped many people this way.

You will generally leave one of these conferences with a clear idea of where you stand, and also a plan for the future.  People often say they wish they had come to us sooner, as these things had been keeping them awake at night. To make an appointment or to phone to talk to a lawyer, call

07 38325999 (Brisbane)

07 32059000 (Strathpine)

07 5443 1120 (Sunshine Coast)

Kind regards,

Lynette

Child Support is money paid by one parent to the other, to assist towards the financial support of the children. The amount to be paid can be either negotiated between the parents or calculated by the CSA. If one party refused to pay the amount they are required to pay by the CSA, the CSA can take steps to recover that money. In other cases, the CSA collects the Child Support and passes it onto the other parent.

If anyone needs detailed information about the amount of child support payable, we recommend you visit the CSA website which has a ”calculator” that parties can use.

Broadly speaking, the amount of Child Support payable is based on a formula that takes into account the incomes of the two parties, the number of children and nights those children spend each year with the respective parents.

Generally, a parent only needs to provide Child Support until a child turns 18 years of age. However there are exceptions to this rule. You need to discuss this aspect with Lawyer if you think it might apply to your situation.

Separated parents have a number of options to determine the financial arrangements. These include:

1. Agree with the other parent as to how much child support will be paid . This would then be either:
   • Pay  the other parent directly (which would be an informal arrangement); or
   • Enter into a legal agreement to formalise the arrangements (private Child Support agreement).
2. Register with the CSA  to assess how much Child Support should be paid (through the legislative formula) and then either:
• Make the payments directly from one parent to the other; or
• Have the CSA collect the child support from one parent and pass it to the other.

There are potential benefits of having a private arrangement however there can be serious disadvantages as well. A great deal depends on your particular situation and you should NEVER agree to a Child Support Agreement, or sign any document until you have seen a Lawyer to discuss its implications. You need to remember that these types of decisions can, over the growing up period of a child or children, turn into a large amount of money. For instance, if you have committed to a payment arrangement and your situation changes (for example, you cannot work because of ill-health), you could end up with an obligation to pay money that you cannot afford.

Some Lawyers promote Child Support Agreements but do not explain the potential disadvantages. Often, if one party is advantaged, the other party will be disadvantaged. Therefore, we strongly recommend you see a Lawyer to make sure you receive proper advice and you know where you stand.

Child Support can be complicated. At Journey Family Lawyers, not only are all our Lawyers dedicated to Family Law but they also specialise within the various aspects of Family Law. If you need expert advice, call us and ask to have a talk with one of our experts about your Child Support issues.

Usually, in my research I find heaps and heaps of information on what to do after you have been separated for a while, or if you are going to Court, but I have written a few pages on what you should be doing right at the very start of separation journey. It is in my e book. http://brisbanefamilylawyers.com.au/lynette-galvins-e-book/  I have written another 20,000 words so I am well on the way to finishing the book soon. It will  be published, but if you are interested in a preview copy, (you can help me proof read it) then email us here.

As if people thinking about Divorce or separation in Queensland didn’t have enough worries with the floods and the cleanup! Now we have dropping house prices and downturns in business and share prices as well. This obviously impacts on peoples’ ability to get property settlement sorted and can result in more Court cases in the Family Court. Today I thought I’d talk about some strategies to help you through and also comment on the way this has been played out in Court cases and settlement mediations throughout the past year in my firm, Journey Family Lawyers, and also what I have heard from other Family Lawyers.

In property settlement, the first step is to calculate the assets. This is easily achieved by valuing the assets or selling them! Just be careful that you never rely on old valuations where property prices are dropping, you should make sure your valuation is no more than about three months old.

If you have Superannuation, then, like shares, the value may have dropped to a disappointingly low level. This is not so easy to swallow, and the best thing you can do is accept the losses and move on. It is what it is.

Values of assets are an issue for the final stage of property settlement proceedings under section 79(4) of the Family Law Act. But what happens during the initial separation? In our article, “Separation advice: Before you go“, we talk about strategies for those early, difficult days. It helps if you think about separation in two stages, the interim, immediate stage and the long term plans and outcome that you want to achieve.

So, close your eyes and take a deep breath. I want you to visualise how your life will be after you have sorted this mess of separation out. Some people see themselves in a rented unit or house, others see themselves in their own home, bought with the proceeds of sale of the joint property, and still others plan to buy their partner out of the current joint home.

Whichever plan you have, you can see that it won’t be achieved instantly, no matter how amicable your settlement will be and however friendly your separation is. In the current housing market, you can expect to have your house for sale for over 100 days before it may sell. You may need to consider reducing prices. Don’t worry too much, because you will be presumably buying your new property in the same low market.

But, you need a short-term plan as well. One that can keep you comfortable and secure until the finances are untangled. This is the tricky one. So, a couple of FAQ’s.

1. The person who stays in the family home usually has to pay the outgoings, such as mortgage rates and insurance etc. I say usually, because there are exceptions, such sometimes where the children are in the home as well, or where the bank is chasing the joint mortgagors. The idea of the person who stays being responsible for the payments is one that the Family Law Cases has generally endorsed on the basis that the other party presumably has to get their own accommodation and will be paying for that.
2. Leaving the home does not mean you have somehow abandoned your right to have it considered in ten property settlement.
3. If you have a car registered in the name of one person, but it is agreed that the other person can have it in the short or long term, that is fine, but if the non registered user of the car does not pay the registration, or insurance, then it is the registered owner who may be liable.
4. Medical insurance is usually in the Family Rate at the time of separation. Be careful about relying on the other party to make the premium payments. I often advise my clients to check that the payments have been made each month. Ultimately you need to get separate health insurance but many people find it easier to keep it joint in the short term, especially when everything is in chaos in the early weeks of separation. This is particularly useful and important if you have kids.
5. Furniture, whilst important is not the be all and end all. If taking a particular piece of furniture is going to damage your relationship further than it already is damaged, you might like to reconsider. If you take the ” removal truck” option, where you take everything and just leave very little, then you should not be surprised if your ex will not negotiate with you on the rest of property settlement. Try to be very fair. It may pay off when it counts, say in property settlement or in kids matters.
6. Take all of your papers, and copy all of the joint ones, or take them and copy them at a later date. You can always give them back. But you may spend a lot of money with lawyers finding out information that was already available to you in your cabinet before you left.
7. Finally, take your photos, trophies, sewing, tapestry, music or rock collection, or whatever it is that is precious to you and irreplaceable. If it should be shared, you can give it back later, or have it valued later, but if it is one of a kind, and valuable mainly only to you, take it now, when you go. Otherwise I am afraid it may well disappear (I have seen it happen often), or be regarded as unimportant by the Judge in the final property settlement. These are the things that you will regret losing and for which money is not a substitute.

So get yourself settled in a way that you can afford, with the things such as insurances and your personal items safely with you. Don’t upset your partner unnecessarily. Make sure that between you both all the bills are still being paid. Be aware that this is just a holding pattern, and don’t let the emotion of the break-up make you foolish about these things.

Think about what you want to achieve in the future with your settlement. Reality check this with friends and then give your lawyer the goal posts. Hopefully a friendly civilised property settlement will be yours within the year!

Our firm knows the pressure that unresolved property issues brings to your daily lives and we will do everything we can to get a speedy resolution through either mediation, negotiation or if necessary, strong and decisive representation in Court.

I hope this helps, email me or send a question to Journey Family Lawyers at enquiries@journeyfamilylawyers.com.au. Someone will get back to you usually within a couple of business hours for free. Or phone us on one of the below listed numbers for a free 10 minute consultation

Kind Regards,

Lynette Galvin

Superannuation splitting law

The superannuation splitting law treats superannuation as a different type of property to things like houses, cars and bank accounts. It lets separating couples value their superannuation and split superannuation entitlements, although this is not necessary for all people to do so. Each case is unique.

It is important to understand that splitting superannuation entitlements does not convert those interests into a cash asset – the entitlements are still subject to superannuation laws (for example, it is usually retained until retirement ages are reached).  In simple terms, if you wish to receive part of your partner superannuation this does not mean you can readily convert it into cash.  Only in very limited circumstances will a super fund allow you to do so, and only then, only a limited amount (known as “hardship grounds”).  You must check with your Journey family law solicitor first before thinking you can access any part of your partner’s super after property settlement.

Options for splitting superannuation

Separating couples may either:

1. Enter into a formal written agreement to split superannuation

A formal written agreement requires that both you and your former partner instruct a lawyer who must sign a certificate stating that independent legal advice about the agreement has been given. Once this agreement is made, you do not need to go to court. The agreement is not registered in court and you must be careful that each of you retains a copy.

Journey family lawyers do not recommend that anyone enter into a “superannuation agreement” as there are many dangers and pitfalls involved in doing so. Ask your Journey family law solicitor about this if you require further advice.

1. Seek consent orders to split superannuation (this our best recommendation), or
2. Seek a court order to spilt superannuation (if you cannot reach an agreement with your former partner)

Even when an application is made to a court, it is possible to reach an agreement at any stage without the need for a court hearing, and we encourage you do to so.  Journey Family Lawyers has a high success rate and reaching settlement in property matters thereby avoiding costly trials. You should ask your Journey Family Law solicitor about these options.

What you need to do to split superannuation

Step 1: Obtain valuation information

You need to get information to value the superannuation interests of both of you. You should provide the following forms to the trustee of the superannuation fund (we will usually do this for you):

1. Form 6 Declaration. This satisfies the trustee of the fund that you are entitled to get the information for this limited purpose, and
2. Superannuation Information Request Form (accompanied by the appropriate Superannuation Information Form).

The superannuation fund may (and often does) charge a fee for providing this information, and this is paid when you send the forms. The Superannuation Information Kit provides the information and the forms you need. To obtain a copy of the Superannuation Information Kit go to www.familylawcourts.gov.au or call 1300 352 000, or ask your Journey Family Law solicitor.

The information from the trustee may be enough to value the superannuation. However, the valuation of some superannuation interests can be complex. An expert may need to provide a further valuation.  This often occurs when one of you works in the public sector and is a member of a defined benefit scheme.  The valuation process for such schemes is often very expensive.  You should ask your Journey Family Law solicitor about valuing superannuation.

How superannuation is valued

There are different types of superannuation. The superannuation splitting legislation sets out methods for valuing most types of superannuation, but there are exceptions, including:

1. Self-managed superannuation funds – they are generally valued with the assistance of an expert such as an accountant
2. Where the Attorney-General has approved a fund using a different valuation method.

Step 2: Decide the method of splitting

You have the option of either entering into a formal written agreement or obtaining a court order (by consent).

Obtaining a court order (our preferred method)

People obtain court orders about the division of matrimonial property in two ways:

1. By consent of the parties

If you and your former spouse have reached an agreement about property settlement (and superannuation), then a Form 11 Application for Consent Orders should be filed in the Family Court, accompanied by a  consent order (often referred to as “Minutes of Consent” or “Terms of Settlement”) recording the agreement. The orders can then be made in chambers (by a judge alone)  without either of you or your Journey Family Law solicitor attending court.

NB.  In some rare circumstances the Court will require further information from the parties.  Just because you have prepared Consent Orders and a Form 11 does not necessarily mean that it is the end of the matter.  A court will only make the Orders you seek if they are “just and equitable” and are enforceable by law.  The wording of superannuation splitting orders is complex and must meet strict legislative requirements.  If your orders are not worded correctly they will be rejected by the registry and you will find yourself having to seek the advice of a solicitor.  It is always wise to seek legal advice first, and is you wish to have super-splitting orders made, have your Journey Family Law solicitor prepare them for you to avoid delay and unexpected expense.

1. As a result of a court hearing.

Even if you start proceedings, you can reach an agreement at any stage and once the orders recording the agreement are made you do not need to attend court further, provided that the Court is satisfied that the orders you seek are “just and equitable”.

Either way, you need to file an Application with the Court.

To start a case in the Federal Magistrates Court we must prepare for you and file an Application, an Information Sheet and a Financial Statement. The other party will file a Response and a Financial Statement.

The information from the superannuation fund trustee will help us to complete the court forms. You must disclose all superannuation, even if you do not intend to split superannuation payments.

Informing the superannuation fund

If you are seeking court orders about superannuation, we must tell the superannuation fund trustee about the orders you are seeking.  We must ordinarily provide the Trustee with 28 days written notice of the orders we seek on your behalf.  The trustee must have an opportunity to attend the court hearing and object to the orders that you are seeking. This is called providing the trustee with ‘procedural fairness’.

Once the superannuation order is made, whether by consent or after a hearing, it is  important to provide a sealed copy of the order to the trustee immediately.

You should get legal advice from us before deciding what to do. Our team of solicitors can help you understand your legal rights and responsibilities, and explain how the law applies to your case. Our role is to help you reach an agreement with your former partner without going to court.  That is always our first preference, but in some cases, it is simply not possible for parties to agree and if that is the case, we will assist you to prepare your court case.