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Family Law

If you are going through a separation or divorce, we can provide legal support and guidance to help you finalise your affairs in the most practical and cost-effective way possible. We can help you achieve a fair and reasonable property settlement and assist you with making workable parenting arrangements that are in your children’s best interests.

The Australian Family Law System

The family law system in Australia sets out processes to resolve conflicts around two main areas: property and children’s matters. If a dispute falling within either of these areas cannot be resolved between the affected parties, the Federal Circuit and Family Court of Australia can make binding orders based on the law.

The family law system is designed to be fair and equitable. Parenting laws focus on the best interests of the children, and property laws aim to help separating couples reach a fair division of property. Fortunately, many family law matters are settled without the need to attend court which can add undue stress to the existing challenges that the parties already face.

Dividing your Property after Separation

A property settlement involves the division of assets, liabilities, and financial resources between a couple after their relationship ends. Formalising a property settlement is important to legally bring the parties’ financial affairs to an end. It enables each party to move forward with their respective financial lives and helps protect them from future claims. A legally recognised property settlement can also assist the parties in accessing any applicable transfer duty concessions for the transfer of certain assets.

If you and your ex-partner can reach an agreement on how to divide your property, which is often achieved through negotiation with the assistance of family lawyers and/or mediators, you will not need to go to court. The arrangements you reach can be made into a legally binding agreement.

Some important considerations when determining a property settlement include:

  • All assets and liabilities, whether held jointly or individually are considered in the ‘property pool’ – the family home, investment properties, cash, shares, motor vehicles, superannuation and other investments, as well as mortgages, loans, credit cards and other debts.
  • The financial and non-financial contributions made to the relationship by each party are relevant – non-financial contributions include domestic assistance, caring for children, maintaining a home and providing emotional support, etc.
  • The future needs of each party are taken into consideration.
  • The outcome reached should be just and equitable in all the circumstances.

Children’s Matters

Matters of concern after a relationship breaks down include where the children will live, how much time they will spend with each parent, and how major decisions such as those concerning education, healthcare, and religious upbringing will be made. When determining these issues, the best interests of a child will be the primary consideration.

There is no concept in Australian family law of parental ‘rights’, and the notion of ‘custody’ no longer applies. The starting point is that both parents have equal and shared responsibility for their children.

Shared parental responsibility means that both parents have a role in making major decisions about their children, but it does not necessarily mean that a child will spend half of their time with each parent. This may not be practical in all situations and various factors will be considered. There is, however, a presumption that it is best for children to have an active relationship with both parents, which generally means that they should spend significant time with each parent. This presumption may be rebutted in certain circumstances such as where domestic violence exists or there is severe substance abuse in the home.

Parenting arrangements can be documented in a parenting plan or formalised in consent orders which are filed with the court. While consent orders are legally binding, parenting plans are not.

It is generally in the interests of all parties to work out arrangements for their children without going to court. In some cases, however, this is not possible, and you may need to request the court to decide. Unless exceptional circumstances exist, the parties will need to attend family dispute resolution before making an application to the court for orders.

Child Support

In Australia, parents have a primary responsibility to financially support their children, both biological and adopted, no matter what might have happened between the parents. This legal responsibility applies regardless of whether a parent has contact with their children.

Parents can make a private agreement about how much child support will be paid, if any. Alternatively, they can apply to Services Australia (Child Support) for an administrative assessment of how much each parent should pay.

Child support payments are calculated using a complex formula based on factors such as the number of children, their ages, the income of each of the parents, and how much time each parent spends caring for the children. Each situation is unique, so there is no one-size-fits-all solution. An estimate of child support payments can be obtained through the Service Australia online calculator.

Child support payments typically end when a child turns 18. However, if the child is still in high school, the parent receiving the support can apply to extend the child support payments until the end of the school year.

If you need help, contact [email protected] or call 0401 513 190 for expert legal advice.