Family Law

When a relationship breaks down, many ex-partners try to settle their matters informally and privately. After all, who wants lawyers and courts involved in their personal business? However, in many cases it can be complex working out the best way to divide property or the ongoing arrangements for your children. Often, an agreement is never reached, or the wheels fall off part-way through negotiations. More worryingly, some private agreements are inherently unfair, particularly where there is an imbalance of power between the parties.

To ensure you are properly informed and can make decisions about your family law matter, we recommend consulting a family lawyer and having any agreement reached documented, so it is consistent with the family law system in Australia and legally enforceable. We can help you finalise your family law matter so you and your family can move forward with your lives.

Family law in Australia

Australian family law focuses on two main areas: property and parenting. This is a national law that applies the same rules to every family (including de facto and same sex couples) and everywhere in Australia (except Western Australia, which has its own family court).

When ex-partners are unable to reach agreement about their property and parenting affairs, the Federal Circuit and Family Court of Australia can hear and make binding orders. Fortunately, many family law matters are resolved without the intervention of the court which in most cases, should be considered a last resort.

Dividing your property after separation

When a couple gets together, this usually involves pooling their resources. For some couples this might be as simple as buying a couch together. For others, it involves a history of working towards common financial goals. In either case, when the relationship ends, family law sets out a formula for how to divide the assets.

Family law legislation provides that each party should receive a fair share of the joint property pool. Determining what is “fair” depends on what each party brought to the relationship, how each person contributed during the relationship, and each person’s future economic needs. It is important to know that “contributions” to a relationship are not just from paid employment. Family law recognises that non-financial contributions, such as looking after children, domestic duties and emotional and social support, are critical to achieving financial objectives. A family law lawyer will be able to give you an estimate of what percentage of the total property pool you should seek.

A legal property settlement enables the parties to move on with their respective financial activities, helps protect them from future claims, and may facilitate certain duty concessions when transferring assets such as real estate. The division of assets can be achieved through a financial agreement or consent orders. In such cases, the parties will not have to attend court. Only if an agreement cannot be reached, might court proceedings become necessary.

In some circumstances it may also be appropriate to seek other forms of financial support, for example, spousal maintenance, where one partner from the former relationship provides financially for the other.

We can help you negotiate a property settlement that is fair and reasonable in the circumstances and prepare the relevant documents to ensure the agreement reached is legally binding.

Parenting arrangements

The focus of the parenting rules in the Australian family law system is the “best interests” of the child. The law starts from the presumption that it is best for a child to have an active relationship with both parents. There is no concept of parental “rights” or “custody”, only of parental “responsibilities” and “care”.

In Australia, the starting point is that both parents have equal and shared responsibility for their child. This means that each parent is equally responsible for the care and support of the child but does not necessarily mean that the children will spend equal time with each parent. This may not be practical for every family, but there is a legal expectation that each parent will spend at least “significant” time with their child.

The presumption that a child should have an active relationship with both parents can be rebutted by circumstances such as significant domestic violence or severe substance abuse in the home. However, it is important to know that even when these circumstances exist, a court is unlikely to make a no contact order. Contact may be supervised or otherwise made safe for the child (such as restricted to telephone), but it is extremely rare for a court to sever all contact between a child and their parent.

Parenting arrangements can be achieved through a parenting plan, consent orders or, if the parties cannot agree, court proceedings. In such cases, and unless extenuating circumstances exist, the parties will need to attend compulsory family dispute resolution before commencing proceedings in the court.

If you need assistance contact [email protected] or call 07 3800 5055.