The costs of our involvement in your matter will depend upon what work has to be done. However, you can be assured that as a specialist family law firm where practitioners have a combined experience of 70 years in this special area of family law that the benefit will far outweigh the costs.
Details of our costs will be made available after you decide to retain our services. This will be set out clearly in the Costs Agreement which we shall forward to you.
When you attend an appointment with a lawyer from John R. Quinn and Co you have the opportunity of discussing with them any matters of concern you have about your marriage, separation and/or divorce. Legal advice given to you may include answers to your questions about:
To enable us to provide you with a preliminary view as to your legal rights and entitlements according to the law it will assist if you could prepare a chronology prior to the initial appointment. This chronology would set out:
Although we realise you may not be able to provide all this information when you attend your first appointment, the more information you give us will assist us in providing you with our legal advice as to the possible or probable outcomes of your matter. Such advice will be given during the course of the first interview.
We shall also discuss with you the various options available to you to resolve your matter. You then have the opportunity of considering such advice and to consider how you wish to proceed. Some of our clients are then able to attempt to try to resolve issues directly with the other party. However, we strongly advise that the correct legal documents are prepared to finalise any such agreements between the parties.
We can assist in such discussions with your partner and if you need the assistance of other professionals such as accountants (if there is an issue as to the value of companies or other financial issues) we can assist you with the appropriate questions you need to ask them in order to progress your matter.
Further professionals such as valuers, counsellors and so on may be necessary and we will assist you in this process. You will leave the initial appointment with clear and informed advice and options available to you so that you can make an informed decision as to how to proceed towards a property settlement and decisions about your children’s welfare.
The benefits of obtaining clear and professional advice from one of Sydney’s leading family law firms with three highly experienced family lawyers is that we will assist you moving forward to achieve a property settlement and children’s arrangements as quickly as possible.
Our offices are conveniently located in the Sydney CBD opposite Hyde Park and just a few blocks from the Family Court. Your first appointment is a very reasonable fee and we spend up to 2 hours with all new clients, according to each client’s needs.
Australia has a “no fault” divorce system, which means that the law does not allocate blame to any party for the marriage breakdown.
You may only apply for a divorce in Australia if there has been an “irretrievable breakdown of marriage”. You need to satisfy the court that you and your spouse have been physically separated for a minimum period of twelve months and there is no likelihood that you will be reunited as a couple. It is possible for couples to be separated and remain living in the same premises. Please ask your lawyer about these circumstances.
You or your spouse may apply for a divorce if either of you is an Australian citizen, by birth or descent, or a resident of Australia or consider Australia as your home, having lived in Australia for twelve months prior to filing for a divorce.
A divorce does not mean you have agreed on a property settlement or parenting orders. These are separate issues which must be finalised within twelve months of obtaining a divorce unless you obtain leave of the court.
We are aware of the special needs of overseas clients and the impact that distance from Australia can have on communication.
With today’s improved communication tools, including the internet and email, we are able to overcome the difficulty for our overseas clients in obtaining prompt legal advice.
We also have experience in the way today’s business world remunerates their employees – e.g. employee stock options and share plans for clients and how such arrangements are dealt with under the Family Law Act.
On the breakdown of a de facto relationship, property issues are dealt with by state laws for those parties to a de facto relationship who separated prior to 1st March, 2009 (2010 in South Australia).
If you are in a de facto relationship, it is therefore important to understand the laws that apply in your state if you separated prior to 1st March, 2009.
In New South Wales, for example, it is usually necessary to demonstrate that you have lived in a de facto relationship for at least two years, although in some situations it is possible to make a claim for a property settlement if the relationship lasted less than two years.
As from 1st March, 2009 parties to a de facto relationship who separate after that date may, subject to satisfying certain requirements, may bring an application in the Family Court or Federal Circuit Court for a property settlement.
Once an application for a property settlement has been made, the court will consider the financial and non-financial contributions of each de facto partner in making a property settlement.
Significant changes have now occurred for de facto couples (of the same sex and different sex) who separate after 1st March, 2009 in the event there are financial issues. The Family Law Act has been amended to give couples of de facto relationships similar rights to the rights of married persons when they separate.
Child related issues whether the parties are married or not are dealt with in the Family Court or Federal Circuit Court.
Following separation parties to a marriage or de facto relationship (which broke down after 1 March 2009) are generally expected to be self supporting.
It is sometimes the case however that one party (usually the female) is unable to financially support themselves and is in need of a spousal maintenance payment to be made to meet payments of their everyday living expenses. In certain cases it is possible this may result in that party being entitled to spouse maintenance. Such payments may be paid by way of a Jump sum or paid periodically and these payments are in addition to any child support that may be payable. Spousal maintenance is also separate from a property settlement.
The party claiming spouse maintenance needs to be able to show that:
If both tests are not satisfied the party will not be entitled to spouse maintenance.
Applications for spousal maintenance must be brought within one year after obtaining a divorce and the applicant spouse must be able to show to the court a need for spousal maintenance and that the other party has the capacity to pay.
The court takes into account the standard to which the parties became accustomed to living during the relationship and the reality of the post separation finances shared by the parties. Also taken into account is the need to protect the party who wishes to continue their role as a parent.
It is important to note that usually spouse maintenance is only paid until the property settlement matters are finalised and both parties have received their entitlements.
A couple can specifically agree to exclude prior owned assets and any inheritances received during their relationship.
A couple may agree to equally share any assets they acquire during their relationship and protect the financial interests of children of a prior relationship in the event of a second separation.
The purpose of a Financial Agreement is to enable a couple to plan the division of their financial assets as well as providing for spousal maintenance in the event of a separation and so avoid the cost and stress of court litigation.
A couple may choose to enter into a Financial Agreement as a defacto couple, or pre marriage, or during marriage or after separation or divorce.
Please note that the essential requirements for a Financial Agreement include such agreement complying with the technical requirements of the Act, Independent legal advice must be given before signing the agreement, Independent advice given must be confirmed in a written statement by each of the lawyers to the party they represent and each lawyer must sign a Statement of Legal Advice to be attached to the agreement.
A Financial Agreement can be set aside by a Court if the agreement does not comply with the strict technical requirements of the Act.
The words, “child custody” and “contact” have been replaced in the Family Law Legislation by the words, “resident parent” and “time spent with”. The intention of the legislative changes is to emphasize that no parent owns a child.
Both parents whether married or not have full responsibility for all their children until a child is eighteen years old. The Family Law system strongly encourages parents to reach an agreement regarding the care of their children as the children are directly affected by separation and divorce whether by a change of residence, loss of the family home and familiar surroundings and in particular a change in the amount of time they spend with each parent. The court can formalise agreements between parents in relation to the children by making Consent Orders.
Recent legislative changes also require parents to attend family dispute resolution to resolve disputes about children prior to lodging an application with the court. These changes are intended to promote the sharing of parental responsibility in the event of family breakdown.
A family violence order is an order made under a law of a state or territory to protect someone from family violence. Family violence orders have different names in different states: apprehended domestic violence orders (NSW), intervention orders ( Victoria ), protection orders ( Queensland and ACT), restraining orders ( South Australia , Western Australia and Northern Territory ) and restraint orders ( Tasmania ). Family violence orders typically prohibit one parent from coming within a set distance of another parent, or prohibit one parent from stalking or harassing the other parent. Sometimes family violence orders can contain limited exceptions, such as allowing contact between parents for the purpose of delivering or collecting a child.
Children can sometimes be included on family violence orders made for a parent. More commonly, child protection orders are made by a state Children’s Court where there are grounds for believing that a child is in need of protection.
Under amendments to the Family Law Act which became effective on 1 July, 2006 when parties separate, whether married or not, and they have issues about ongoing care of their child or children before there are Court proceedings about child issues, they should have attempted to resolve such issues. This generally requires they attend a Relationship Centre.
However, attendance at such Centres only becomes compulsory after 1 July, 2007, subject to specific exceptions which include cases of urgency and domestic violence. However, before attending such Centres you should obtain legal advice so that you are aware of your legal rights.
A Relationship Centre is no substitute for obtaining legal advice. In all cases we recommend you obtain legal advice. You are not required to attend a Relationship Centre if you separate and have no issues about the child or children, but have issues relating to maintenance or division of assets.
Because we are a specialist family law firm where legal practitioners appear regularly in the Courts dealing with family law matters, we are aware not only of the regular changes in the law, but how these are interpreted by the Court.
We are conveniently located in Sydney just a few blocks from the family law courts.
We can also assist you in guiding you through a most difficult process by caring and informed divorce and family law advice.
If we need to engage others, such as accountants, valuers and barristers to assist, we know those who are experts in the field and whose expertise is respected by the Family Court.
The benefits, both financially and emotionally, of retaining this firm far outweigh the costs.
Changes in the law were introduced in December 2002 which enabled the Family Court to make orders that enable a party to a family law matter to split their superannuation and have a percentage or a set amount transferred from their superannuation fund to the superannuation fund of their spouse.
Superannuation is now considered as a property asset in a marriage/de facto relationship.
The superannuation Splitting Orders are binding on the Trustees of the superannuation funds. The interest in a party’s superannuation can be calculated and if necessary valued. Our family lawyers will provide you with access to qualified experts who can value a superannuation entitlement if necessary whether it is an accumulated or defined benefit interest. It is also necessary to consider the taxation of the superannuation entitlement when a valuation is undertaken.
Under the Australian Constitution the Commonwealth Government has the jurisdiction to make laws in relation to divorce and matrimonial causes which includes parental rights and time spent with children otherwise known historically as custody rights.
Up until 1 March, 2009 the Commonwealth Government did not have jurisdiction over de facto relationships and ex-nuptial children.
On 1 March 2009 this all changed and all property applications are now heard for parties from a marriage and a de facto relationship breakdown if separation occurred after that date.
Previously children’s matters for de facto couples were heard in State Courts but since 1 March, 2009 all de facto property matters including de facto children’s matters are heard in either the Family Court of Australia or the Federal Circuit Court of Australia.
In some circumstances it is possible to apply for a divorce even though you have not lived physically apart from your spouse for the required 12 month period.
If a couple reconcile for a period of up to three months after separation it is possible to calculate the periods before and after the period of reconciliation to calculate the twelve month separation period.
Also in some circumstances it might be possible to apply for a divorce where you and your spouse have lived under one roof for all or part of the 12 month period. It is necessary in these situations to satisfy the court that you and your spouse lived separate lives despite being in the same home.
It is a good idea to consult a solicitor for advice if you intend to live a separate life under the same roof as your spouse. The lawyer is able to advise you on how to structure your relationship and daily affairs in a manner likely to satisfy a court that you and your spouse have lived separate lives.
It is against the law to remarry before a divorce becomes final. A delay of approximately 3 months occurs between the date of filing for divorce and the date of the divorce hearing. A divorce becomes final when the court issues a divorce order at the expiration of one month after the divorce hearing.
Marriage celebrants require the production of a divorce order one month prior to the intended marriage date if an intended party to the marriage has previously been married. We advise that it is best to allow for at least two months after the date of a divorce hearing before confirming celebrations for a new marriage to take place.
If you need clear advice about deceased estates, about obtaining a Grant of Probate or Letters of Administration, contesting or defending a will, or about making other legal arrangements for your later life, James Barkell will expertly and compassionately assist you at what is often a difficult and stressful time in this regard.
If you believe a will or an estate in New South Wales is unfair, is wrong or is suspect, James Barkell will give a considered assessment of your case and provide you with options and the prospects of successfully challenge a will; he will also advise you of your chances of defending the inheritance (bequeathed to you in a will) if the inheritance is under challenge.
If you believe that:
YOU REQUIRE EXPERT LEGAL ADVICE AS SOON AS POSSIBLE
James Barkell can assist you as he is fully aware of your legal rights in this area of law and will strongly defend your legal entitlements if the matter does not settle and proceeds to court.
Contact us on +61 2 9283344.
Because John R. Quinn & Co. is a firm specialising in divorce law, we are highly experienced in relation to property matters, child custody disputes, separation and divorce. Divorce is a branch of the law that presents special challenges, as the parties will often be at different emotional stages in dealing with the separation. We deal every day with issues of property and child custody, therefore we know the advantages to our clients of well informed advice, which then leads to reduced anxiety and better outcomes in their property settlements and divorce proceedings.
Established in 1992, the Specialist Accreditation Scheme offers members of the Law Society the opportunity to strengthen expertise in a particular area of practice and acquire a reputation for excellence in their chosen fields.
The Scheme’s professional development programs across 14 areas of practice are highly regarded within the profession.
Specialist Accreditation status also enables members of the public to easily identify a solicitor with specific knowledge and skills.
The International Academy of Matrimonial Lawyers (IAML)
IAML is a worldwide association of practising lawyers who are recognised by their peers as the most experienced and skilled family law specialists in their respective countries.
IAML was formed in 1986 to improve the practice of law and administration of justice in the area of divorce and family law throughout the world.
John R Quinn, our principal and founding partner, is a fellow of the International Acadamy of Matrimonial Lawyers.
Once a judge’s decision has been made it is final unless it is appealed, or in some situations if circumstances on which the order depend change (for example: a parenting order where one of the parents makes plans to move overseas after it has been made, or something similar).
Appeals must be filed within 28 days of an order made by a judge or Federal Circuit Court Judge. If you simply disagree with a decision there is no further recourse under the law. You can’t use an appeal to re-hear the original dispute. An appeal must be based on an argument that there is an error in the judge’s decision, either in law or in interpretation, that is the Judge:
The court presumes that the decisions of the lower Court are correct, so the proof otherwise must be compelling. For example, in the years 2000-2010 only between 5% and 15% of Appeals lodged were upheld. Generally more property than parenting appeals are successful.
Appeals are generally listed for hearing before the Full Court (three judges of the Family Court).
If you and the other party agree on changes to existing orders, you can file consent orders to change them. If you cannot agree with the other party, you need to decide if you can apply to the court to change the order. To change the orders, the court must be satisfied that the change is needed, based on:
The Family Court is aware of many schemes by parties to hide assets. There is a general duty of disclosure and specific rules relating to financial arrangements that are punishable by penalties if parties do not comply with them. The duty of disclosure is ongoing, so if there are changes in parties situations or facts come to light that were hidden even years after orders were made, then it can be a basis for asking the Court to change orders.
Individuals with high net worth need to be particularly thorough in getting advice about the duty of disclosure as the court would be less likely to believe a simple, innocent mistake was made by people with generally sophisticated financial affairs. If proceedings are current, the non-disclosing spouse can risk the judge making adverse finds about their credibility that may affect all of their evidence, if the court forms the view that hat witness has deliberately withheld relevant information.
If you suspect your spouse if hiding assets from the court, we can advise you on the evidence you will require to prove that is the case. If your financial arrangements are complex, we can advise on how to comply with the disclosure requirements in detail.
For high net worth individuals, as well as the usual human stresses associated with failure of relationships and family breakup, there are added financial complexities that come from sophisticated financial arrangements. These complexities include things such as:
In particularly complex situations, having access to an boutique firm and an accredited specialist with considerable experience with these sorts of matters can be of great value.
Yes, superannuation is treated as property under the Family Law Act 1975. It differs from other types of property because it is held in a trust. Superannuation splitting laws allow superannuation to be divided when a relationship breaks down. The orders are made to the Trustee of the super fund. Orders can be by consent if the parties agree, or at the request of either party the court can include super splitting as part of a property order. The superannuation splitting laws apply to couples who were married or certain de facto relationships and couples who haven’t settled their property arrangements.
Splitting does not convert the superannuation into a cash asset – it is still paid out according to superannuation laws (for example, it is usually retained until retirement ages are reached). You must get legal advice about the payment splitting agreement or it won’t be binding on the trustee of the superannuation fund.
A valuation of the super can be obtained by sending a Form 6 to the trustee, which establishes that you are entitled to the information, and a Superannuation Information Request Form.
When parties over the age of 50 years separate they generally have been in their marriage or de facto relationship for many years. The parties have either children in secondary school or university or their children are independent adults and often have left home.
In many case such parties may be able to access their superannuation interests or are able to access their superannuation within a few years. The parties may have business interests which must also be taken into account in a property settlement. These business interests may involve family trusts. It is therefore very important for such separating couples that consideration be given on how best to achieve an equitable division of those assets considering that the parties have spent many years together accumulating them.
In considering the restructure of a family business we would always recommend that we work in conjunction with the accountant of the parties to ensure that the parties arrive at the best possible outcome. It is imperative that sensible, workable business decisions are arrived at so that if possible all outstanding issues between mature couples are resolved and dignity and respect is maintained between the parties for each other.
The closest train stations are Town Hall, taking the Park Street exit, or St James Station, taking the Elizabeth Street exit. John R Quinn & Co. is on the corner of Park and Elizabeth.
Best parking is in the Domain parking station. Take the moving footway and cross Hyde Park to reach our offices.