The purpose of the Hooper & Mill Family Lawyers Brisbane FAQ section is to provide you with very basic information to help you get your thoughts together prior to obtaining customised legal advice specific to your circumstances. With something as delicate as your family and financial future, it is recommended you not act on the basis of “generic” internet advice.
How much will my matter cost? Will I know in advance how much my matter will cost me?
Unless you enter into a “fixed fee agreement”, the truth is, it is impossible for any lawyer to tell you in advance how much your matter will cost. This is because of the large number of variables involved in conducting and concluding a family law matter. For example, because there are two parties to every matter, the amount of work we are required to perform can be affected by actions your ex-partner does or doesn’t take which is beyond your, and our, ability to control.
What we can do is provide you with regular estimates, which are generally accurate due to our experience in running family law cases. Further, if circumstances change (due to unforeseen situations arising) we can usually tell you quickly whether we anticipate costs will be more or less than the estimates provided.
We also provide regular monthly or bi-monthly itemised accounts, allowing you to stay on top of payments and what has been paid.
We consider our relationships and communication with you is very important and never more so than with respect to our transparency on the issue of costs.
How will my bill be calculated?
The primary method of costing we employ is “time costing.” This is the most common method utilised within the legal services industry.
We employ time costing on the basis of a 6 minute unit per hour. That is, each hour is broken down into 10 x 6 minute units and you are charged for the number of units, or parts of units, it takes for us to complete a task on your file.
An advantage of time costing is when an experienced, knowledgeable lawyer is working on your matter and the work is performed quickly and efficiently, you pay less.
Conversely, it is a disadvantage of time costing if a junior solicitor is working on your file and taking longer to perform the same task and thus charging more for a possibly lower quality service.
One alternative to the abovementioned time costing billing arrangement, which can provide certainty for you, is a fixed fee agreement.
A fixed fee agreement means we negotiate with you in advance a set fee for the matter, or stages of the matter, giving you 100% peace of mind upfront that all work required is completed for the agreed fee. Depending on your circumstances and requirements, we are open to engaging in discussions, and negotiating with you, on fixed fee agreements.
If your matter is being billed on a time costing method, as stated above, we will provide you with an estimate of fees, for each step along the way or whenever you request an estimate be provided.
How can my matter be resolved as quickly, with as little animosity as possible?
The quickest, most inexpensive and least confrontational way for a relationship dispute to be resolved is by agreement.
In matters involving children, an ongoing relationship with your ex-partner in some form or another is likely until your child is at least 18 years old. Preservation of your relationship with your ex partner, to the greatest extent possible, is important for your children’s sake and more likely when an amicable agreement can be reached.
Your lawyer can assist you in moving towards reaching an agreement by:
- Providing you with accurate advice as to what your range of entitlement is, or what the likely outcome of an application to the court will be. The more accurate the advice you receive, the more informed your decisions will be;
- Engaging in “co-operative” rather than “positional” negotiation techniques with your ex-partner. This means looking for the interests underlying a dispute and attempting to find mutually beneficial solutions rather than the classic “Dutch auction” where one party must lose something for the other to gain something;
- Ensuring that any power imbalances between you and your partner are addressed, including ensuring all relevant information has been obtained and provided to your ex-partner;
- Ensuring your matter is well prepared.
What happens if my former partner refuses to negotiate or make an agreement?
You can’t force your former partner to come to an agreement, but you can create circumstances whereby an agreement is more likely. Your lawyer plays an important role in this.
Creating conditions to facilitate an agreement involves both you and your lawyer being respectful and courteous in dealings with your former partner and their legal team. Even when you don’t agree with the position they have taken and even when you may not feel like being courteous.
Relationship breakdown is an emotional experience and legal processes can create stress and greater animosity if not managed properly. When animosity becomes pervasive in Family Law matters, often it is the children who suffer the most.
This doesn’t mean you shouldn’t stand up for your rights or the rights of your children, give in to unreasonable demands, put up with abuse, or accept less than you are entitled to. What it means is creating the best opportunities for an agreement to be reached and if you consider a trial is your only option, you will have arrived at this decision knowing it is a “business” and not emotional decision. We are experienced litigators and experienced in positional bargaining when these methods must be employed as a last resort.
How does the Court determine a property settlement or spousal maintenance claim?
The court has a wide discretion to make orders adjusting the property interests of parties provided it is just and equitable to make the order.
The court generally follows steps in exercising this discretion and determining the entitlement of each party to the marriage. These are:
- To determine whether it is just and equitable to make an order. The court does this by examining the existing interests and the matters referred to in section 79(4) and section 75(2) of the act. Recently the High Court has said the court should not approach property adjustment from a starting point of assuming an order should be made;
- Once it has been determined it is just and equitable to make an order, identify and value the property of the parties (of either of them) as at the date of hearing i.e. the current date. This step generally involves subtracting the value of the liabilities of the parties from the gross value of assets to arrive at the “net matrimonial property pool”;
- Assess the contributions of each party to the conservation, acquisition or improvement of property. These can be direct or indirect, financial or non financial. Another category of contributions not related to the conservation, acquisition or improvement of property are contributions to the welfare of the family and as parent or home maker. The assessment of contributions is expressed as a percentage;
- Adjust the percentage finding for contributions if necessary due to future economic factors listed in section 75(2) Family Law Act 1975 and having regard to the amount of money each party will receive on the contributions assessment;
- For the Court to “step back” and assess whether the application of the above has been just and equitable and has achieved a just and equitable result.
If spousal maintenance is being claimed, the court’s determination of the spousal maintenance application will be after the property adjustment process.
In determining whether or not spousal maintenance is appropriate the Court will consider:
- Whether the “threshold” is met i.e. determine whether one party is reasonably able to pay Spousal maintenance and whether the other party is not able to support himself or herself adequately;
- Consider whether it is proper to make the Order and again have regard to the matters in section 75(2) Family Law Act 1975;
- No fettering principle i.e. the Court need not reinstate pre-separation standard of living;
How does the Court decide how much time my children will spend with each parent?
The Court has a wide discretion to make parenting orders, provided the court regards the best interests of the child as the paramount consideration in exercising this discretion.
The Family Law Act 1975 provides guidelines to the Judge as to what factors are to be taken into account in making findings as to best interests.
Since 2006 there has been a “presumption” inserted into the Family Law Act 1975 that both parents are presumed to have equal shared parental responsibility for their children when they are seeking parenting orders. Parental responsibility was previously referred to as Guardianship and involves all the duties, powers, responsibilities and authority parents have with respect to children. The equal shared parental responsibility presumption is rebuttable if there is family violence or child abuse present and is subject to the overriding consideration of best interests.
With parental responsibility parents are equally responsible for, and should consult with each other with respect to, but not limited to, matters such as:
- Religious and cultural upbringing;
- A child’s name;
- Relocation of a child’s residence.
Further, where there is equal shared responsibility the Family Law Act 1975 sets out a mandatory path way for the Judge to following in making a parenting order. This is:
- To consider the child live with each parent for equal time provided this is reasonably practicable and in the child’s best interests; If this is not appropriate then,
- To consider the child spend substantial and significant time (days falling on weekends and holidays and days not falling on weekends and holidays) with the parent with whom the child is not living. Provided this is reasonably practicable and in the child’s best interests. If this is not appropriate then,
- To consider what time the child spends with the parent with whom the child is not living is in the child’s best interests.
Disputed parenting matters are difficult and quite often the court will order that evidence from experts from the psychology or social science fields be obtained.
Can I enter into a pre-nuptial agreement? Are these types of agreements enforceable?
A “pre nuptial agreement” is a form of financial agreement and can be made pursuant to the Family Law Act 1975.
If a financial agreement is a binding financial agreement it removes from the court the jurisdiction to make an order adjusting property interests with respect to the property covered by the binding financial agreement. The agreement can relate to property not yet acquired.
A financial agreement does not remove the jurisdiction of the court to make property adjustment orders and only can be relied upon as evidence of intention. Thus a financial agreement that is not binding will not likely result in a division of property in accordance with its terms “to the letter”.
A Binding Financial Agreement is the only effective pre nuptial agreement.