FAQs

Family Law can be overwhelming.

 You may have dozens of questions. Here at Testart Family Lawyers we are dedicated to providing answers to all of your family law questions.

Family Law can be overwhelming.

 You may have dozens of questions. Here at Testart Family Lawyers we are dedicated to providing answers to all of your family law questions.

We have provided a blog with answers to Frequently Asked Questions About Family Law. 

Please note, however, that there is no substitute for proper legal advice tailored to your individual needs. At Testart Family Lawyers your initial consultation is free! Email Marc Testart, our principal family lawyer, at marctestart@testartfamilylawyers.com.au or call us on (03) 9854 6212 to make an appointment.

What follows is a list of common questions that clients have about family law:

I want my lawyer to win my case for me. Can you win my case?

This is a very difficult question to answer because we often have old ideas about what it means to ‘win’ and ‘lose’. Family law can often challenge these old ideas. Nobody really wins when a relationship ends. It is stressful and traumatic for everybody, especially when there are children involved.

It is certainly reasonable to want to get the best possible outcome, whether that be more money in a property settlement, or to spend more time with your children. At Testart Family Lawyers, we will strive to get you that result.

When a relationship breaks down, we can often see it as a battle with our ex-partner. As such, we want to ‘beat’ them or ‘defeat’ them.

Family law in Australia, however, does not so much deal with ‘victory’ or ‘defeat’ as it deals with ideas such as ‘justice’, ‘equity’ and what is in the best interests of the children. Sometimes it makes more sense to see ‘winning’ and ‘losing’ in the context of our realistic expectations. If we get a better result than we expected, then we feel like we have won. If we get a worse result that we expected, then we feel like we have lost. Sometimes lawyers make promises that they cannot keep and their clients then feel that they have lost when things do not work out. At Testart Family Lawyers we will give you an honest assessment of your case including its weaknesses. We have found, in the long run, this is the best thing for our clients.

In our experience, family law litigation is a much less painful process is we are able to let go of old ideas about winning and losing and focus on moving forward in the best possible way. In this way we can help you to win.

At Testart Family Lawyers, we strive to get you the best possible result. At your free initial consultation we will make a preliminary assessment of the strengths and weakness of your matter, an idea of what it will cost to move forward and help you to develop a strategy for getting the best outcome. To set up an appointment, call us on (03) 9854 6212, email us at marctestart@testartfamilylawyers.com.au.

What is a ‘pre-nup’ (pre-nuptial agreement)? How can I get one?

A pre-nup or pre-nuptial agreement (more commonly known in Australia as a ‘binding financial agreement’) is basically a way of deciding what will happen with property when a relationship ends.

Many people want a degree of certainty if the unthinkable happens and their relationship ends. Many people want a way of protecting their property interests or the interests of their family or children in the event that their relationship ends. One of the main advantages of a binding financial agreement is that it can avoid the uncertainty, cost and stress of having to go to court.

Pre-nups or binding financial agreements are not just for married couples either. They also apply to de facto and same-sex couples.

It is important to have clear lines of communication with your partner if you are considering entering into a binding financial agreement. Talking about money can be a very sensitive and delicate issue, and it is important that there is a careful understanding between the two partners.

It is also important for each partner to get independent legal advice. If they do not, then the pre-nuptial agreement will not be binding and the other party may be able to turn around and take you to court.

At Testart Family Lawyers we handle all areas of family law, including pre-nups and binding financial agreements. Your initial consultation is free. For more information, please visit us here to make an appointment.

Why do I have to give the other side all of this financial information? Can’t they see I’ve got no money?

Family law is a very sensitive area. Often people try to hide what they have done with their money to gain an unfair advantage over their ex-partner in a legal battle.

The law recognises this, which is why in family law there is a duty to make ‘full and frank financial disclosure’. What does this mean? Put simply, it means that each party needs to provide the other side with all relevant financial documents which would allow them and the Court to determine their true financial position.

Many people find this area of the law confusing and overwhelming. At Testart Family Lawyers we are here to help. If you are unsure which documents you need to disclose, or you think the other side is hiding something, we can make sure your legal rights are protected.

Am I entitled to more than 50/50?

People often think that receiving half of the property in a family law matter is the fairest result. Sometimes it is.

But sometimes there are factors which means that somebody should get much more or much less than half.

The Courts look at the relevant contributions that each party makes before, during and after the relationship. For example, one partner may have owned a house before the relationship began. This is something that the Court would take into account.

The Courts also look at the relative means and needs going forward. What does this mean? Well, one party may have the majority of care of the children, and earn much less money that the other. One may have health problems. These are all things that a Court must also take into account.

Sometimes it is not easy to predict how a Court would divide the property in a family law matter. That’s why it’s important to get top quality legal advice. At Testart Family Lawyers, provide a free initial consultation where we outline the strengths and weaknesses of your case. In this way you can go forward with confidence that you get the best possible result.

Can I keep the lawyers out of this?

You can! It is perfectly reasonable to try to save on legal costs. Getting a lawyer and going to court is expensive. If you can reach a clear informal agreement with your ex-partner then you may be able to ‘simply divide and walk away.’ This is especially the case where there is little property to divide and each party is able to support themselves without needing spousal maintenance or social security.

But there are risks. A good lawyer should be able to save you much more money than you spend on them. One major risk is that, generally speaking, informal agreements cannot stop a person from turning around and taking you to Court later. This may end up costing you thousands of dollars extra down the track.

At Testart Family Lawyers, we offer a free initial consultation, where we sit down and assess your legal issues and formulate a brief ‘action plan.’ Then we can determine whether we believe we can provide you with real value for money. It is then your decision whether or not you want to engage us to represent you.

What does ‘settling’ mean? When can I do it? Is it compulsory?

‘Settling’ is a phrase often used by lawyers for finalising a legal matter by agreement between the parties before a Court makes a decision. It is not compulsory, but there are many advantages to settling. It is usually much cheaper than a prolonged legal battle. It also brings with it a certainty as to what the outcome will be. If you settle with your ex, you know what you are getting. If you wait for the Court to make a decision, you may be in for a nasty surprise!

Sometimes it is not a good idea to settle, however. Sometimes the offer on the table is much less than you are entitled to. Often clients are bullied or pressured into settling for much less than they deserve. Often clients are emotionally vulnerable after a separation. Clients can be taken advantage of.

The parties may settle at any stage. Once an agreement is reached, it is then important to get independent legal advice, otherwise the settlement may not be enforceable.

At Testart Family Lawyers, we can advise you whether or not we think you should settle. We have extensive court room experience, and so we are able to give you the best legal advice as to what the strengths and weaknesses of your case are.

At Testart Family Lawyers, we offer a free initial consultation, where we sit down and assess your legal issues and formulate a brief ‘action plan.’ Then we can determine whether we believe we can provide you with real value for money. It is then your decision whether or not you want to engage us to represent you.

My ex is a drug addict and an alcoholic. That means they will never get to see the kids again, right?

Not necessarily. In Family Law the best interests of the children are the most important thing. It is obviously important to protect our children from harm and being exposed to harmful behaviour, but the law also recognises that it is important for children to have a relationship and a connection with both of their parents. It is not always ‘black and white.’

Courts often need to assess these situations on a case-by-case basis. Sometimes the Court may suspend a parent’s access if they are a drug-user. Other times the Court may make an order that a drug-using parent’s time with their children is supervised. There may be an order strictly prohibiting a parent from being under the influence of drugs or alcohol while the children are under their care. It depends upon the individual circumstances.

At Testart Family lawyers, nothing is more important than the welfare of your children. We will make sure that their rights, and yours, are protected. Please visit us here to organise a free initial consultation.

I think my young child is being sexually assaulted by my ex’s new partner. What should I do?

Allegations of sexual assault or sexual or physical abuse are extremely serious. The law recognises that the safety and security of children is the most important thing.

If you think that your child might be exposed to any kind of abuse then we strongly recommend that you speak to a family law expert to decide upon what the right course of action is.

Often it will be appropriate to take urgent action. The police may need to get involved. In some circumstances it may be appropriate to ensure that your children have absolutely no contact with your ex-partner or their new partner. This is an extreme situation, however, and it is important to get proper legal advice.

At Testart Family Lawyers, nothing is more important than the welfare of your children. We will make sure that their rights, and yours, are protected. Please visit us here to organise a free initial consultation.