Guiding You Through Separation
We provide tailored legal representation in relation to property and parenting matters. We can also assist with your application for divorce.
Family Law Parenting Matters
When determining parenting arrangements that are in a child's best interests, the Court takes the following considerations into account, as set out in section 60CC of the Family Law Act 1975 (Cth):
1. What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
2. Any views expressed by the child;
3. The developmental, psychological, emotional and cultural needs of the child;
4. The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;
5. The benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;
6. Anything else that is relevant to the particular circumstances of the child.
7. The court must include consideration of:
(i) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(ii) any family violence order that applies or has applied to the child or a member of the child's family.
We can assist you to negotiate and arrange child focused parenting arrangements. You can record your parenting arrangements in a parenting plan or consent orders. Even though consent orders are made by agreement, and can be made without a hearing, they are still orders of the Court and are legally binding and enforceable.
When a parenting order is made, each party must follow the orders. Contravening (breaching) an order can have serious consequences.
A parenting plan is a written agreement that sets out parenting arrangements for a child or children. The plan is worked out and agreed jointly. You and the other parent do not need to go to Court to enter into a parenting plan. However, you should seek legal advice before entering into a parenting plan. Unless a Court orders otherwise, you and the other parent can agree to change a parenting order by entering into a parenting plan. A parenting plan is not a legally enforceable agreement. It is different from a parenting order, which is made by a Court. If a parenting plan has been signed and dated by both parties it can be used as evidence in Court proceedings.
Family Law Property Matters
The Court (and we) follow the following process when assessing the matter and determining a just and equitable property division:
Step 1: Requires the Court to identify and value “the existing legal and equitable rights and interests in any property of the parties" or either of them. This includes jointly and solely owned assets including but not limited to real estate, bank accounts, vehicles, superannuation and notable personal belongings. The Court must also identify “the existing liabilities of the parties" to the relationship or either of them. Liabilities may include things like mortgages, loans, and credit cards. Both parties must provide full and frank financial disclosure. A financial resource, distinct from property, provides future financial support, as a source of financial support which a party can reasonably expect to be available to them to supply a financial need or deficiency. At this stage, we also identify any financial resources of the parties.
Step 2: Assess contributions. Both financial (eg income, savings, inheritances, gifts) and non-financial contributions (eg homemaking, child-rearing, career support) are recognized. No type of contribution is more valuable than the other. Initial contributions are the assets and liabilities each party had at the commencement of cohabitation. In a short, childless relationship (eg a period of cohabitation for 5 or less years) initial and direct financial contributions may be given significant weight having a big impact on the outcome. The Court generally affords less weight to initial contributions as time progresses because the myriad of other ongoing contributions diminish the significance of initial contributions over time. Contributions continue post-separation and so we consider and divide the value of the asset pool at the current date (not the date of separation). The Court will determine a percentage-based contributions assessment at this stage.
Step 3: Assess each parties current and future circumstances and needs. Factors such as age, health, earning capacity, care of children and the housing needs of children of the relationship are considered at this step. We also consider the impact of any financial resources at this stage (access to a financial resource may reduce a person’s future needs). The Court may or may not make a current and future needs adjustment in favour of one party at this stage.
Step 4: The Court will consider whether the proposed division of the asset pool is just and equitable. At this stage, the Court will consider the proposed percentage outcome in addition to the practical impact of the orders (the impact of “who gets what” on the parties). There is no automatic 50/50 split in Australia; the division depends on the application of this process taking into account each parties’ contributions, their current and future circumstances and needs and the practical impact of the proposed division.
The above process is set out in section 79 (married) or section 90SM (de facto) of the Family Law Act 1975 (Cth). In some limited cases the Court may form a view that it is not just and equitable to alter the parties property interests.
If you have reached agreement about parenting, financial or property matters, you can ask the Court to make orders by consent to make your agreement legally binding and enforceable. The Court will consider the orders sought taking into consideration whether the financial, property or maintenance orders are just and equitable. If there are no current Court proceedings, you can formalise your agreement by applying for consent orders. Consent orders can also be used to vary or discharge existing family law orders. You do not have to go to Court when formalising your matter by consent. Parenting and property matters can both be finalized in the same application for consent orders.
You can also formalize "who gets what" by way of a financial agreement which is a contract between parties that is not submitted or reviewed by the Court.
Time Limits to Commence Property Matters
If the potential proceedings arise out of a marriage, you must apply within 12 months of a divorce order taking effect (or decree of nullity being made) in relation to the marriage.
If the potential proceedings arise out of a de facto relationship, you must apply within two years of the breakdown of a de facto relationship.
These limitation periods do not apply to applications which seek only
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declarations of existing property interests, or
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to vary, set aside or revive existing property settlement or maintenance orders.
Out of time applications require leave of the Court which may be refused. It is important to resolve your property matter within time.
Applications for Divorce
We can assist you with completing your application for divorce for a fixed sum of $1,500 plus disbursements. The Court filing fee is $1,125, if you have a health care or pension card you may be eligible for a reduced Court filing fee of $375. An application for divorce is a separate process to finalising parenting and property matters.
You must be separated for at least 12 months before you can apply for a divorce order. The time limit to commence Court proceedings seeking property orders begins from the date of divorce and so the date of your divorce order is important. There is no requirement to wait a set period after separation to finalise your property and or parenting matter.
