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Discretion of Court

The Family Law Act 1975 provides for property settlement matters to be determined by looking at several factors.

  • Property Pool: What is the value and nature of all the assets, liabilities and superannuation entitlements each party has an interest in?
  • Contributions: What contributions have each party made to the property pool at the beginning of cohabitation, during cohabitation or marriage, and since separation? Contributions include financial contributionsnon-financial contributions, and performing homemaker and parenting duties.
  • Future needs: What are the needs of each party that will prevent them from recovering from the property split?
  • Justice and equity: in all the circumstances of the matter, is the overall and final property division just and equitable?

This process is not an accounting exercise. For example, the court does not require parties to calculate and provide evidence on the amount each party paid towards the mortgage or the bills during the cohabitation/marriage to determine a party’s contribution to the former matrimonial home. Similarly, you do not have to provide the court an estimate of your anticipated costs for caring for a child 8 nights per fortnight until the child is 18 years of age in order to determine a future needs adjustment. However, these factors still are somewhat relevant in determining the final property pool split.

So How Does the Court Work It Out?

The court has significant discretion when deciding a property settlement division. Parties will differ on their accounts about what they contributed and their needs. Even if their respective accounts are supported by evidence, the court must determine how much weight to apply to that factor when determining the overall outcome. There are guiding principles in family law that help parties in understanding the outcome the Court will come to and our role as family lawyers is to apply those principles to the circumstances of a particular case when providing clients advice. However, ultimately, we cannot guarantee how the judge hearing your matter will decide the case on that day, as different judges on different days will give different results.

Therefore, we provide advice on the range of likely outcomes, based on the above process and the principles that arise from the process and case law/precedents. We provide advice on what would be a really good outcome (top of the range) and a good, but not great outcome, (bottom of the range) the court could come to, based on the circumstances of your case. Not only does this help parties in understanding the law on property settlement, it allows them to compare the result they may get from a judge to the result they can achieve from negotiations with the other party. Sometimes, the result from negotiation may be at the higher end of the range in comparison to the outcome the judge could come to after judicial discretion is applied.

If you require advice on the range of outcomes in your property settlement matter, please contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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