Family Law

The family law system in Australia sets out the processes to resolve conflicts about two main issues: property and parenting. If a dispute regarding these issues cannot be resolved outside the courtroom, the Federal Circuit and Family Court of Australia will hear from both parties and make orders based on the law.

Separation or divorce is difficult, and often complicated. The family law system however is designed to be fair and equitable. Parenting laws focus on the best interests of the children, and property law aims to help separating couples reach a fair division of their property. Our role is to help you achieve a positive outcome in challenging circumstances that is in the best interests of you and your family and, wherever possible, keeps your matter out of the courtroom.

How is property divided after separation?

A property settlement involves the division of assets, liabilities, and financial resources between a couple whose relationship has broken down. Family law sets out a procedure for dividing property after a separation which is typically followed in settlement negotiations. The objective is to achieve a result that is “fair and equitable” in all the circumstances.

Initially, the couple’s assets are included in a property pool, which encompasses assets held jointly and individually. This includes the family home and other real estate, investments, shares, bank accounts, business interests, superannuation, motor vehicles, furniture, and artworks.

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 understand that “contributions” to a relationship are not just from paid employment, and family law recognises that domestic contributions (whether this is childcare, household duties, or emotional and social support) are critical to the achievement of financial goals.

Settling your property matter out of court

In most cases you will not have to go to court to formalise a family law property settlement, but it is important that you are aware of the financial and legal implications before you finalise your arrangements.

If you and your ex-partner come to an agreement on how your assets should be divided, you can have these arrangements formalised in a binding financial agreement or consent orders.

A binding financial agreement is a written agreement between the parties that must strictly meet the prescribed requirements for it to be valid. The agreement is signed without the intervention of the court and both parties must receive independent legal advice.

Consent orders are generally considered a more formal way to finalise your property settlement because the orders are filed with, and approved by, the court. Full financial disclosure is required, and the parties apply to have the court review the orders. If the court believes they are just and equitable, the orders are granted and become legally enforceable.

Parenting matters and children’s arrangements

The focus of the parenting rules in the family law system is the “best interests” of the child. The primary considerations in determining a child’s best interests, are the benefit of the child having a meaningful relationship with their parents, and the need to protect a child from harm. Greater consideration is given to the need to protect children from harm.

Children’s matters cover a range of issues including who a child will live and spend time with, who will have parental responsibility, how a child will communicate with a parent when they are not in their care, and matters relating to health care or education.

The law starts from the presumption that it is best for a child to have an active relationship with both parents and that 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. As such, it might be reasonable to start from the presumption that a child will spend 50% of their time with each parent. This, however, 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.

As with a property settlement, it is best if parents can come to an agreement between themselves about the ongoing care of their children. This can be achieved through an informal agreement, a parenting plan, or parenting orders.

An informal agreement is simply an agreement between the parties that is not documented. The risk with an informal agreement is that issues may arise if the parties no longer agree on the arrangement.

A parenting plan is a non-binding written document setting out the arrangements agreed between a child’s parents.

Parenting orders are legally enforceable. They can be made by consent between the parties and filed with the court or by a judge in circumstances where the parties do not agree and apply to have the matter determined by the court.

If you need assistance, contact [email protected] or call 02 9269 0662 for expert legal advice.