Family Law

Family Law is concerned with the areas of:

  • Divorce
  • Property settlement/adjustment (for married and de facto couples)
  • Spousal maintenance
  • Parenting arrangements
  • Child support
  • Financial Agreements (excluding pre-nuptial and pre-de facto relationship agreements)

Litigation
The Family Law Act 1975 specifically deals with:

  • Divorce
  • Parenting arrangements
  • Property settlement (since March 2009 for both married and de facto couples)
  • Spousal maintenance

The Child Support Act 1989 deals with Child Support. The Queensland Property Law Act 1974 deals with property settlement for de facto couples in Queensland who separated before March 2009. Although, provided both parties agree, de facto couples who separated before March 2009 may have their matter dealt with under the Family Law Act.

Divorce
In Australia married couples can apply to the Federal Magistrates Court for a divorce provided they satisfy the Court of the following:

  • They have been separated for 12 months or more
  • There are irreconcilable difference
  • If there are children from the marriage aged under 18 the court must be satisfied that appropriate arrangements have been made for their care

Other important points about divorce include:

  • Once divorced, an individual is able to marry again
  • In Queensland a divorce revokes a gift of property or appointment made in a will in favour of the former spouse
  • People only have twelve months from the date that the divorce order is made in which to file application for property settlement or spousal maintenance

Court Proceedings
There is no need for Court Proceedings. The Family Law Act encourages people to settle matters between themselves, avoiding the need for litigation. Matters may be resolved by negotiation between the parties, either personally or via their legal representatives. In some instances parties may engage the services of a mediator to facilitate negotiations and hopefully resolve matters. In the event that parties amicably resolve their dispute the Agreement can be resolved in a number of ways:

Parenting
The Family Law Act mandates that parents are to attempt Family Dispute Resolution ("FDR") with an approved FDR provider before commencing Court Proceedings. Parties can formalise Parenting Arrangements by either:

(a) Entering into a Parenting Plan - which is an informal document signed by the Parties. Parenting Plans can deal with all arrangements for children, including Child Support. However, while Parenting Plans are recognised by the Courts they are not enforceable.
(b) Making an Application for Consent Orders - the parties complete the Precedent Form which details the arrangements that are to be put in place for the children and also provides the Court with relevant background information. The Application is accompanied by signed Minutes that reflect the actual arrangements and sent to the Court for approval. Consent Orders, unlike Parenting Plans are enforceable. Consent Orders cannot deal with Child Support.

Property
The Family Law Rules require parties to comply with pre-action procedures before they can commence Proceedings in the Family Court of Australia. While there is no such requirement for the matter in the Federal Magistrates Court, in most cases parties will, and should, attempt to negotiate or mediate an agreement before embarking on protracted, expensive and emotionally draining litigation.

Parties can formalise property settlement in one of two ways:

(a) Financial Agreement - Financial Agreements must be prepared strictly in accordance with the requirements of the Family Law Act. Each party must sign the Agreement and have a Legal Practitioner certify that they have provided either party with "independent legal advice". Financial Agreements can be entered into before, during or after relationships. The Agreements are confidential and do not have to be registered with a Court. There is no requirement for the Agreement to be fair; that is, parties have the ability to agree to whatever they like.
(b) Making an Application for Consent Orders - the parties complete the precedent form which clearly sets out their financial circumstances and the intended effect of the proposed Orders. The Application is accompanied by signed Minutes that detail mechanism and must be approved by a Registrar of the Court. Unlike Financial Agreements, the Registrar cannot approve the Orders unless they are satisfied that proposed orders are "just and equitable".

Property transferred in accordance with a Financial Agreement or Court Order may be exempt from State Stamp Duties and in some cases can attract Capital Gains Tax Roll Over relief. It is therefore vital that parties obtain independent legal advice and instruct their legal representatives to liaise with their Accountants and Financial Advisers.

Child Support
Parties can formalise Child Support arrangements by one of three ways:

  • Private Agreement - where the parties agree how much child support is to be paid between themselves
  • Assessment by the Child Support Agency - where the Child Support Agency assesses how much Child Support is to be paid. The Child support Agency will look at the care arrangements for the children (i.e. who they live with and for how long, etc.) and the taxable incomes of the parents. The Child Support Agency can also collect Child Support for the parents
  • Child Support Agreements 

(i) Binding Child Support Agreement - The Binding Child Support Agreements must be prepared strictly in accordance with the requirements of the Family Law Act. Each party must sign the Agreement and have a Legal Practitioner certify that they have provided either party with "independent legal advice". The Agreements are confidential and do not have to be registered with a Court. There is no requirement for the Agreement to be fair - that is, parties have the ability to agree to whatever they like irrespective of any assessment made by the Child Support Agency. The Agreements can last until a child turns 18 years of age;

(j) Limited Child Support Agreements - like Binding Child Support Agreements these must be in writing. However, the amount of child support to be paid must be equal to the assessment made by the Child Support Agency. There is no need for the Limited Child Support Agreements to be accompanied by certificates of Independent Legal Advice.

 

De facto Partners
Since 1 March, 2009, de facto couples in all Australian jurisdictions, except South Australia and Western Australia, can formalise arrangements for property settlement and spousal maintenance under the Family Law Act. Under the amendments the Family and Federal Magistrates Courts are able to make orders concerning:

  • The division of any property owned either individually or jointly by the de facto couple
  • Splitting the parties superannuation
  • Spousal maintenance

The amendments also allow parties to enter into Financial Agreements in the same way as married couples can. The Family and Federal Magistrates Court can only make orders in the event that one of the following criteria is satisfied:

  • The period (or total periods) of the de facto relationship is at least 2 years
  • There is a child of the de facto relationship
  • One of the partners made substantial financial or non-financial contributions to their property, or as a homemaker or parent, and serious injustice to that partner would result if the order was not made, or
  • The de facto relationship has been registered in a State or Territory with laws for the registration of de facto relationships

Ordinarily, de facto couples only have two years from the date of separation to commence Court Proceedings. De facto couples who ordinarily reside in Queensland and were separated before 1 March, 2009, must resolve their matters pursuant to Property Law Act 1974 and litigation must go through the State Courts. Important differences between the Family Law Act and the Property Law Act include:

  • Under the Property Law Act the Courts do not have the power to make orders for spousal maintenance or splitting superannuation
  • Parenting matters cannot be determined by State Courts so de facto couples in dispute over property and parenting face the reality of having to litigate in two separate courts

De facto couples who separated before 1 March, 2009, can agree to have their matters dealt with under the Family Law Act. However they must both receive certificates of independent legal advice from independent legal practitioners to do so. Under the Property Law Act, de facto couples only have two years from the date of separation to commence Court Proceedings.

Parenting matters
Since 2006 the Family Law Act has mandated a presumption that it is in the best of interest of the child that parents have "equal shared parental responsibility for the child". Contrary to public belief, the Family Law Act does not require children to live in equal time arrangements with each parent. However, in the absence of family violence and/or issues of practicality, the Courts are required to consider ordering equal time arrangements. At the end of the day the Courts must refer back to the guiding principle that any order must be in the child's best interests. In order to do this the Court must look at and assess such matters as:

  • The child's wishes
  • The maturity of the child
  • The child's relationship with each parent
  • The capacity of the parents to care for the child
  • The ability and capacity of the parents to facilitate and encourage the child's relationship with the other parent
  • The need to protect the child from physical and/or psychological harm

Every case is unique. The arrangements that work for one family may not work for another. Not surprisingly this can be an incredibly emotional area of law as parents grapple with attempting to make rational decisions about their children's welfare in what can be a highly irrational moment in their lives. Parents should consider counselling to help them deal with their own emotions as they go through the process.

Property Settlement
Section 79 of the Family Law provides the framework to be used when determining a property settlement. Fortunately, or unfortunately, there is no legislated calculator. Each case will depend on its own unique set of facts depending upon such matters as:

  • How long the parties have been married/or in a de facto relationship
  • Whether there are children, and if so how many and the arrangements for their care
  • The assets either party held prior to the relationship
  • The nature and extent of each party's contributions during the relationship
  • Any windfalls or special contributions (such as compensation claims or inheritances) that were received during the course of the relationship
  • Each party's earning capacity

The Courts adopt a four-step approach:

Step 1 - involves identifying the property that is available for distribution.
Step 2 - making an assessment of each party's contributions during the relationship, being financial, non-financial and as homemaker or parent.
Step 3 - making an assessment of exigencies, such as ages of the parties, health, care of children, payment of child support and discrepancy of income or earning capacity.
Step 4 - an assessment must be made as to whether the division is "just and equitable". That is, the Court must consider the impact the proposed order will have on each party's situation.

Parties must provide one another with full and frank disclosure of their financial position. Invariably the matters that become long, drawn out and complicated are those in which there is a dispute about disclosure, which in turn affects the ability to satisfy step 1.

Court Proceedings
Family Law matters are normally heard in either the Family or Federal Magistrates Court of Australia depending on the complexity of the matter. The Queensland Magistrates Court is also able to determine some matters and make Consent Orders. Court Proceedings are invariably expensive, time consuming and emotionally draining, however, they are in many cases the only way to finalise a dispute.

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