Some of the most difficult decisions some people need to make will be at a time when they are at their most vulnerable.

Separating from a partner or spouse can be very traumatic for all involved, and the ability to think rationally can be marred with emotion, resentment, and anger.

We can help you through this difficult time by providing considered and practical legal advice that keeps you away from the courtroom wherever possible. Our goal is to ensure that you achieve a fair and equitable resolution to your family law matter that preserves your rights and is in the best interests of you and your family.

The Family Law Act 1975 (FLA) is the primary staple of legislation dealing with separation and divorce, parenting arrangements between separated parents, property separation, and financial support and maintenance involving children.

The FLA focuses on the rights and best interests of the children and the responsibilities that each parent has to their children.

Family Law Disputes

There are two Commonwealth Courts that deal with matters under the FLA.

These are the Family Court of Australia (FCA) and the Federal Circuit Court of Australia (FCC). The FCC deals with the majority of family disputes.

The NSW Local Court also has jurisdiction to hear and determine some family law matters, including powers to make certain parenting orders and property settlements.

The FCA handles disputes that are of a particularly complex nature or which involve allegations of family violence, child sexual abuse, or significant physical abuse.

Principles and Objectives of the Family Law Act

Part VII of the Family Law Act relates to the children and the fundamental concept of the “Paramountcy Principal”.

The paramount consideration and focus is what is in the child’s best interest when determining equal parental responsibility and parenting orders, and:

  • Ensuring that children have the benefit of both parents and having meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child, and
  • Protecting children from physical or psychological harm, or being exposed to abuse, neglect, or family violence, and
  • Ensuring that children receive adequate and proper parenting to help them achieve their full potential, and
  • That parents fulfil their duties and meet their responsibilities concerning the care, welfare, and development of their children.

Part VII also deals with other types of orders, such as enforcement orders affecting children.

Matters to Consider After Separation

Separation is where a marriage or de facto relationship has irretrievably broken down.

Working out the practical steps to take after a relationship breaks down can be difficult when things are uncertain.

The following are some of the issues you may need to consider:

  • Keep your children’s best interests in mind – try to put differences aside to work out arrangements that will cause them the least disruption and, where possible, foster a meaningful relationship with both parents.
  • If you have children contact the Child Support Agency and have an income assessment done to find out how must is to be paid or is payable.
  • Prepare a list of assets, liabilities, and financial resources, whether they are held individually or jointly.
  • The law requires the parties to provide full and frank disclosure of all information relevant to the case, including any direct or indirect holdings of assets and liabilities, including superannuation, property, shareholdings, trusts, companies, or other structures.
  • If you fail to disclose or file an undertaking or file a false undertaking, the Court may refuse to allow you to use that information or document as evidence in your case, stay or dismiss all or part of your case, order costs against you, fine or imprison you on being found guilty or contempt of court for not disclosing the document or for breaching your undertaking.
  • Obtain originals or copies of important documents like passports, marriage certificates, birth certificates and insurance policies.
  • Keep contemporaneous records and or journals of events and timelines, for example, the date that you separate, any adverse behaviours the partner displays toward you or the children, and track the time your partner has with the children.
  • Ensure that your property (your home, other real estate, motor vehicles, boats, etc.) remains insured.
  • Maintain the mortgages and loans that currently exist in your and your ex-spouse, de facto partner’s name, as it could negatively affect your credit rating if you default.
  • Update passwords, login, and signature details (in writing) for online banking accounts to prevent joint funds from being removed, or liabilities increased.
  •  Change passwords to email and social media platforms.
  •  Notify Centrelink, Medicare, etc. – find out if you are entitled to government or other assistance.
  •  Contact your bank to discuss joint loan and savings accounts, credit cards, or any other aspect of your everyday banking.
  •  Get legal advice to protect your interests by review, and if appropriate, revoke your Will, (Enduring) Power of Attorney, and Enduring Guardianship documents.

Even couples who separate on good terms should get independent legal advice to ensure their rights are protected and a reasonable outcome can be obtained.

Informal agreements are generally not binding and cannot be enforced.

Trying to fix a property dispute arising after creating a non-binding agreement can be especially difficult and more costly, both financially and emotionally.

De facto couples

De facto couples can also access remedies under the family law legislation. In some cases, you may need to prove that you were in a de facto relationship, and we can assist you with this.

A number of factors will be considered to determine whether an unmarried couple were in a de facto relationship, for example, the length and nature of the relationship, financial dependence or interdependence, the care and support of children, or whether the relationship was registered under state law.

Dividing your Property

As briefly outlined above, a property settlement involves the formal division of assets, liabilities, and financial resources between a couple whose relationship has broken down. Negotiations to divide your property can begin as soon as you separate.

If you are married, you do not need to have a divorce order granted. However, it is important to remember that any court proceedings for a property settlement must be commenced within twelve months after a divorce is granted.

For de facto partners, proceedings for a property settlement must be commenced within two years of the date of separation.

The division of assets can be achieved through a financial agreement, consent orders or court proceedings. Fortunately, most family law property settlements are finalised by negotiation between the parties and their legal representatives without going to court.

After reaching a negotiated property settlement, an application for consent orders may be filed with the court.

You will not usually need to attend court to have the orders made and if the proposed orders are considered just and equitable, the court will grant them, which means they will be legally binding.

A binding financial agreement may also be used to finalise your arrangements.

A financial agreement is a written agreement between the parties that operates like a contract. It must comply with specific requirements under the FLA, including the need for both parties to receive independent legal advice before entering the agreement. We can advise if a financial agreement is suitable for your circumstances.

Occasionally it may be prudent to refrain from formalising a property settlement. However, an informal property settlement is not legally recognised as bringing the couples’ financial affairs to an end and may leave them at risk of future claims. Further, duty exemptions may apply for the transfer of certain assets, such as real estate, pursuant to a formally recognised property settlement.

Consent orders, however, are generally considered a reasonable approach to settling your property affairs because the court approves them.

Childrens’ Matters

Parenting arrangements address issues such as where children live, how much time they spend with each parent and other specific issues in relation to education or healthcare and other long-term interests.

Arrangements can be documented in a parenting plan or formalised in consent orders filed with the Court. Of course, it is in everybody’s interests to work out arrangements for their children without going to court; however, if you cannot agree, you may need the court to make directions and findings. Unless exceptional circumstances exist, such as evidence of family violence you will need to attend family dispute resolution before going to court.

What to do next?

Call Richard McDonald of McDonald Law on 02 8824 4736 or email us for an appointment at [email protected]. We will be able to assist you, provide honest feedback, and give you practical options to plan, prepare and resolve your family law matter.