There are a number of considerations which are considered by the Court in a Family Law property settlement. These can neatly be summarised in the diagram below. However, a law Firm which is doing the job to get you the best possible outcome will be engaging a number of techniques. If you have a doubt about what is happening in your matter, then that is a "tell tale sign" that your matter is likely not being conducted in your interests. You need to be armed with information from your lawyer to pro-actively engage in an active and expedient outcome. If you can not articulate what the likely range of outcomes in your case are and how that opinion is formed then, sorry to say, you are not being well served by your lawyer. Gone are the days where lawyers arrogance can substitute for proper advice and communication with clients where clients are empowered with an understanding of what the lawyer is doing..In the present days of internet where everyone is a potential Chief Judge of the "Google Court" it is easy for clients to understand and find information. For example google "how will my property be distributed in a family law property settlement" and likely you will have a pretty good understanding of some of the law. What you are "buying" from a modern day competent law practice is experience and "legal smarts" (Strategy). This includes knowledge of the law as well as knowledge of other matters necessary to "win" your best case.
At our practice we are experienced with decades of excellent outcomes for clients in settlements and complex hearings. We are very focused on strategy and outcomes and this means, by necessity, we are very pro-active. This includes:
a. providing you with an advice up front as to the range of outcomes available if the matter proceeds to a final hearing. Putting it simply, how are you expected to know what figure to settle for in a hotly contested property matter unless you know what you are likely to get before a Judge if the matter proceeds to hearing ?
While this first step sounds easy and common sense, we are simply amazed at the number of clients who have come to us after a settlement to obtain further advice (doubting the result they obtained from another practice) who simply have never been advised as to what they will obtain if the mater was decided by a Judge. This, in our view, is simply negligent in that it is impossible to properly advise a client as to what is a reasonable settlement unless you have advised on why it is reasonable, having regard to the likely outcome if the matter was determined by a Judge.
b. Aggressively comply and seek compliance with disclosure. In many cases the Court will be invited at a final hearing to believe one party over another. In circumstances where one party has simply avoided or failed to comply with disclosure the opportunity to have adverse findings as to the believability of that party are enormous. Accordingly, we seek to avoid that for our clients and seek to exploit that opportunity if our opponent allows it.
c. Seek settlement (including provision of offers to the other party) at the first opportunity to limit costs and to preserve the position for a final costs order if the matter ends up at a final hearing. Note with the benefit of our advice which we have provided we are usually on very solid grounds in our offers and, indeed, we have been complimented by Judges on how accurate we have actually been in our reasoning and figure in our letters offering settlement.
d. Properly prepare and seek out the evidence. This includes compliance with the Evidence Act (noting that Property Matters (as distinct from parenting) strictly apply the Rules of Evidence). We also pro-actively and aggressively issue subpoenas and other discovery process in regard to assets, income and any fact in issue in the proceedings. This is why many of our opponents are not flattering of our conduct of matters as we are regarded as extremely aggressive. This is necessary to win cases as in our experience passive reactive conduct of litigation is doomed to fail and relies more on luck than good practice.
e. Look at the strategy of the matter. This does not involve a percentage discussion. For example, we often say to clients "If we advised that you provide 90% to your former spouse, what would you say " Invariably clients do not agree ! However, we then indicate "What if the value of the assets were $1 would you agree then ?" and invariably they do ! So, some thought needs to be given to pro-actively considering valuations. This is often very important in cases of a business or off shore assets. This also involves a careful consideration of any future needs of each party. We have, for example, had former clients of other legal practices come to us where a parent with a significantly dissabled child has not been considered in respect to future needs (when that parent is the one who will have "live with" orders and who will have the substantial legal burden). This is, to our mind, unforgivable. It demonstrates a reactive approach has been taken in a case, as a proper case strategy would have been to engage the services of an expert to place before the Court (or at least be available for the client) a financial snapshot of what the financial future need of that disabled child will likely be.
Below is the basic path to a property settlement which can be determined from any "google" search understanding of this area of law. The other "bits" we so every day. That is, developing successful litigation strategies and obtaining excellent outcomes for our clients in Family Law property disputes.
I trust this has been of some use. If you wish to discuss your matter in confidence more fully, dont hesitate to contact us on 1300 557 819 for a free consultation. I am sure after 15 minutes with us you will quickly see what a pro-active enthusiastic and empowering approach will bring to your matter, as thats what we have been doing now for decades and what has developed an excellent reputation in litigation.
Barrister & Solicitor
Michael Vassili Barristers & Solicitors
The Four Steps (well almost...) Process in determining Family Law Property distribution....under the Family Law Act