Bowen Buchbinder Vilensky

Marriage Breakdown – Keeping it in the Right Perspective

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By Adam Spashett, Senior Associate at Bowen Buchbinder Vilensky Lawyers

20 June 2016

Separation and relationship breakdown is one of the most difficult situations that a person can find themselves in, even if it is not apparent from the outset.  Unfortunately, the majority of cases involve litigants who are usually at one of the most vulnerable points of their life.

It is of utmost importance to maintain perspective and composure in legal disputes. This is particularly in the case in family law matters.

In the case of parenting disputes involving the care and custody of children, lawyers are increasingly being retained to assist a party where the primary issue of dispute between the parties relates to their level of communication and understanding of their respective situations. Obviously, there are those cases where, due to issues such as family and domestic violence, addiction, use of illicit drugs, or mental health issues, the parties are unlikely to be able to effectively communicate with each other concerning their dispute.

It is important in all cases that the parties assess their ability to effectively communicate with each other, even on the smallest of levels, and take steps to address those issues.

There are also an increasing number of parenting matters where the parties have engaged one or more other professionals to assist them in resolving their legal dispute. In particular, the use of family counselling to provide therapeutic intervention for the parties themselves (and with the children if that is what is recommended as necessary and agreed by the parties) seems to be steadily rising.

The Family Court has the power to order family counselling in certain circumstances.

There are a variety of private and public services that are available for parties to consider that are available to teach strategies, not only individually, but as parents together, to assist in improving their communication and understanding.

It is also particularly helpful for parties to consider individual counselling in this regard, if they consider that they need assistance in maintaining their perspective, or indeed to assist them in dealing with issues that may pose a risk to the children.

It is also important to consider issues of a practical nature, which will impact the legal ramifications of their dispute.

A good example is in financial and property settlement cases involving clients who retain lawyers on the basis that an agreement has been reached with their spouse in the absence of legal, or other professional, advice. The current economic climate, and particularly the real property market, has created numerous problems with parties who are attempting a series of complex property transfers and refinancing in order to implement their agreements.

In the midst of all the tension and angst and possible relief of the parties in agreeing in principle, it is necessary for the parties to consider, as the initial step, whether or not the property transfers are able to proceed by giving due consideration to the practical hurdles and consequences, such as the overall ability to refinance and possible capital gains tax consequences on investment properties. This may mean that retention of property in a settlement may not be possible.

The above issues also highlight the importance of taking professional advice in your legal dispute at an early stage.  An experienced family lawyer will be able to raise these issues with you, and discuss with you options to address these issues and the benefits and detriments to you in your family law case.  They should also be able to assist by referring you to other professionals to provide assistance in family counselling, or the accounting, taxation or other financial advice that may be required.

It is important to seek such advice early on in the piece as this will greatly benefit you in your negotiations with the other side, whether they are conducted directly, or with the assistance of legal representation.

For a further discussion and advice in your legal dispute, and the practical implications, please contact me to discuss your individual circumstances at aspashett@bbvlegal.com.au.

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One Response to “Marriage Breakdown – Keeping it in the Right Perspective”

  1. Jack Gardner says:

    Adam, keep up the good work in your vocation.

    Jack

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