General and Court related questions and answers
If you are able to reach an agreementIf you and your ex-partner are able to agree as to parenting arrangements or how you want your property divided, you can make a joint Application for Consent Orders to be filed in Court. Once the agreement is filed in the proper format, and the Court has determined that it is just and equitable to make the Orders, sealed copies of the Consent Orders will ordinary issue from the Court within 3 to 6 weeks.
If you are not able to reach an agreement
If you and your ex-partner are unable to reach agreement, you will ultimately be required to file a Court application (or you may be required to respond to one).
Parties can, in some cases, be waiting up to 3 years for a final decision from a judge. Although this would be the exception rather than the rule, wait times of 2 years for a final decision are quite common.
Once an application has been filed, the Court will usually hear the matter within 3 months. There are exceptions to this, such as urgent matters regarding the care of children, for example when one parent has threatened to take the children from Australia.
‘Interim’ or temporary orders regarding children and property applications will usually be made on the first Court date. However, your matter will not be at an end until a final order has been made by a judge or agreed to by consent.
Interim orders would usually include (but are not limited to) where the children are to live until a final order is made and necessary orders to progress financial matters such as interim spousal maintenance, orders for injunctions to stop the sale of matrimonial property and/or orders for disclosure.
Parties are able to come to a final agreement by consent at any time during the Court process. Due to extensive wait times, the majority of cases will generally settle at some point along the Court process and will not be required to go to a final Trial.
However, once in Court, the Judge assigned to the case will be required to exercise their discretion to ensure any agreement, even if reached with the consent of all parties, is just and equitable, before he or she is able to make the final order proposed by the parties.Other matters that may affect how long the Court process will take are as follows:
- Whether your matter is heard in Division 1 or Division 2 of the Federal Circuit and Family Court of Australia.
- The willingness of you and your partner to reach an agreement.
- How complicated the issues before the Court are.
- Whether your matter is a children’s matter, property matter or both.
- The length or duration of the relationship;
- The nature and extent of a common residence;
- Whether or not a sexual relationship exists or existed;
- The degree of financial dependence or interdependence and/or any arrangements for the financial support of one another;
- The ownership, use of and acquisition of property;
- Whether and to what degree the parties are mutually committed to sharing a life with one another;
- Whether the relationship has been registered (in a State or Territory where a de facto relationship can be registered);
- The care and support of children; and/or
- The reputation and public aspects of the relationship.
- have been living together for a period of at least two years (either consecutively or accumulatively); OR
- have a child together; OR
- have made substantial ‘contributions’ (financial, non-financial or as homemaker/parent) to the acquisition, conservation or improvement of any property of the parties to the de facto relationship; OR
- that a failure to make an Order would result in serious injustice to the applicant.
Importantly, a party can be considered to be living in a de facto relationship despite the fact that they are legally married to someone else.
Once it is established that two people have been living in a de facto relationship and they have met one of the four conditions above, any assets, liabilities or superannuation interests will be treated in the same way upon separation, as if the parties were married. That is, the court can make orders dividing up any assets, liabilities or superannuation either of a de facto couple owns, in the same way it does for married couples.
Parties found to be in a de facto relationship also have an obligation to support the other party financially (via spousal maintenance) similar to the obligation of a married couple.
However, the limitation date (time limit in which to bring a financial application to the court) is different for de facto couples. That is, parties who have been in a de facto relationship have a period of two years from the date of separation in which to initiate property proceedings, whereas married couples have a period of 12 months (commencing from the date the divorce order becomes final).
Requirements for DivorceThe court is not interested in hearing whose ‘fault’ the breakdown of the relationship was. Rather, the courts role is to ensure that the requirements for divorce have been satisfied, namely that:
- You and your spouse have been separated for at least 12 months (note: it is possible to be separated but living under one roof);
- There has been an ‘irretrievable breakdown’ of the marriage (i.e.: that reconciliation is no longer possible); and
- Either you or your spouse is an Australian citizen or resident, and that you regard Australia as your permanent home.
Sole or Joint ApplicationYou can apply for a divorce by yourself (referred to as a ‘sole application’) or you can apply for a divorce with your spouse (referred to as a ‘joint application’). If you and your spouse make a joint application or if there are no children under the age of 18 at the time you make the application (whether solely or jointly), you will not be required to attend the divorce hearing. However, if you make a sole application and there is a child (or children) of the marriage under the age of 18, you will be required to attend the divorce hearing. This is because the court must be satisfied that either:
- Proper arrangements have been made for any child of the marriage under the age of 18; or
- Special circumstances exist as to why the divorce should be granted even though proper arrangements have not been made.
Opposing a DivorceIf your spouse has made a sole application and you do not agree that the ground for divorce have been met (e.g.: that you have been separated for at least 12 months), you can oppose the application. However, if the court is satisfied that you have been separated for that period and there is no chance of reconciliation, a divorce will be granted. We can discuss with you whether it may be appropriate for you to oppose the divorce.
Time LimitsThere are no time limits in which to apply for a divorce and you do not have to wait for your divorce order to become final in order to obtain a property settlement or formalise the arrangements for your children. However, once your divorce order becomes final, you have a period of 12 months in which to apply to the court for a property settlement, in the event that you and your partner are unable to come to an agreement on your own. If you do not make an application to court before the limitation date expires, you will forever lose your right to make an application to court without first seeking leave to proceed out of time – an application which may not be successful. If you have missed your limitation date, you should immediately seek legal advice. Our solicitors can advise you about your prospects of bringing an application out of time.
Parenting questions and answers
- To consider if the child should live with each parent for equal time, provided this is reasonably practicable and in the child’s best interests. If this is not appropriate then
- To consider whether the child should spend substantial and significant time (days falling on weekends and holidays and days not falling on weekends and holidays) with the parent with whom the child is not living, provided this is reasonably practicable and in the child’s best interests. If this is not appropriate then
- To consider what time the child should spend with the parent with whom the child is not living would be in the child’s best interests. Disputed parenting matters are difficult and quite often, the Court will order that evidence from experts from the Psychology or Social Science field be obtained (eg. a Family Report, a Psychiatric Assessment Report etc.)
If you are currently in or have been involved in family law parenting proceedings, the likelihood is that you will have parenting orders (or a parenting plan) which deal with the issue of travel specifically.
If you do not have parenting orders, have a parenting plan or there is no restriction on interstate travel in your parenting orders or plan, there will be nothing legally preventing you from travelling within Australia – provided, of course, that you are otherwise complying with the parenting orders or the agreement between yourself and the other parent.
The absence of a parenting order or parenting plan may complicate the issue of travel if the other parent does not consent to the holiday and/or it results in the child/ren missing out on spending time with the other parent.
If an agreement cannot be reached in those circumstances, an application to the Court may be necessary so that an order can be obtained to appropriately allow for travel.
You will need to allow sufficient time for your application to be prepared and heard prior to the intended holiday, so we recommend that you attempt to resolve this issue well ahead of time.
International travel is a common issue in family law proceedings. If one parent is not willing to consent to the travel and the parents are unable to reach an agreement – an application to the Court may be necessary.
As a general rule, it is never a good idea to take child/ren overseas without the consent of the other parent. This will be viewed very poorly by the Court (particularly if proceedings are ongoing), and can result in punitive measures including incarceration.
If a parenting order has been made or parenting orders under the Family Law Act are pending, it is an offence to take or send a child to a place outside of Australia without the consent in writing of the other parent or an order of the Court. This offence is punishable by imprisonment for up to three (3) years.
The appropriate course of action for parents who intend to take their children for overseas holidays is to make an application to the court to determine the matter if an agreement cannot be reached.
The Court will then consider the various applicable factors such as the background parenting circumstances and relationship between the parents, the length of the proposed trip, the age of the child/ren, the proposed destination and the risk that the child/ren may not be returned.
If a parent is successful in obtaining an order and they are permitted to take the child/ren overseas, the other parent will often ask for and/or the Court will often issue orders providing that the travelling parent provide the non-travelling parent with a travel itinerary (including proof of return airfare ticketing) and a means of communication with the child/ren while travelling.
Orders are often framed so that parental consent will not be unreasonably withheld for future holidays and that the parties obtain and keep up to date the child/ren’s passports, so as to avoid any future litigation in relation to the matter and to ensure there is an agreed process in place for future travel.
More specific Orders can also be obtained with respect to where a parent is allowed to take a child. For example, restrictions may be placed on parents travelling with children to non-Hague Convention countries or where there is a ‘DFAT warning’ (Department of Foreign Affairs and Trade) in place.
If you are considering an overseas holiday with your child/ren and cannot reach an agreement with your ex-partner, we recommend that you act early and decisively.
A family report is a written report prepared by a social worker or psychologist, for the purpose of making observations and recommendations about the future care and living arrangements that are in the best interests of children in parenting disputes.
A family report writer can either be appointed by the Court or jointly elected by the parties in the parenting dispute.
After a family report writer has been appointed or elected, they will conduct interviews with each parent and will observe each parent interact with the child/children. If age appropriate, the family report writer may also interview the child/children separately, but only if they are comfortable in doing so. Other significant family members, such as step-parents, grandparents or other people who do or will live with the child, may also be asked to the interview.
It is the family report writer’s job to gather information about your background, your involvement in the children’s arrangements pre and post-separation, the issues in dispute, your relationship with the children and the arrangements you believe are in the best interests of the children moving forward.If your matter is in Court, the family report writer will also read the Affidavit (and other) material you and your ex-partner have filed. Importantly, what you say to the family report writer is NOT confidential and may appear in the family report, if the writer considers it relevant to include. It is not uncommon for one or both of the parties to disagree with the observations or recommendations made by the family report writer.
While the family report is usually the only independent and professional piece of evidence the Court is able to rely upon, the Court is not bound by the recommendations of the family report.
Although the family report writer has had the benefit of meeting with and observing the parties and the children, his/her report is an opinion only and it is ultimately up to the Court to decide how much weight is to be given to the report.
In the event that you disagree with the recommendations or observations of the family report writer and your matter proceeds to a trial, the family report writer is able to be cross-examined on the report he/she has given. The importance of a family report and your preparation for same should not be taken lightly.
What is a ‘reasonable excuse’?Unfortunately, the term ‘reasonable excuse’ is not exclusively defined in the Family Law Act 1975. However, the Family Law Act 1975 does provide that a person is taken to have had a ‘reasonable excuse’ for contravening a parenting order if:
- The person who contravened the Order did so because he/she did not understand the obligations imposed by the Order at the time the contravention occurred; OR
- There are ‘reasonable grounds’ to believe that contravening the Order was ‘necessary’ to ‘protect the health or safety of a person’ (including the respondent or the child) AND the period of contravention was not longer than was necessary to protect the health or safety of that person.
Your legal obligationsYou must do everything a parenting order says. This includes taking all reasonable steps to follow the order.
Penalties for failing to comply with a parenting orderA court can only penalise someone for failing to comply with a parenting order if another person files a contravention application alleging the person did not comply with the order. After considering all the facts of the case and applying the law, a court may decide:
- The alleged contravention was not established;
- The contravention was established but there was a reasonable excuse;
- There was a less serious contravention without reasonable excuse; or
- There was a more serious contravention without reasonable excuse.
- Order you to attend a post separation parenting program;
- Compensate for time lost with a child as a result of the contravention;
- Require you to enter into a bond;
- Order that you pay all or some of the legal costs of the other parties;
- Order that you pay compensation for reasonable expenses lost as a result of the contravention;
- Require you to participate in community service;
- Order you pay a fine; or
- Order that you be imprisoned.
- Each parent’s income and the combined income amount;
- How much time each parents cares for each child; and
- Each child’s age.
Private Child Support AgreementThe Child Support (Assessment) Act also provides for two types of agreements that set or alter the amount of child support to be paid to take things into account such as:
- payment of private school fees; • payment of uniforms, books and extra-curricular-activities; • payment of private health insurance; • additional costs due to the ‘special needs’ of a child.
- Limited Child Support Agreements; and,
- Binding Child Support Agreements.
Limited Child Support AgreementsLimited agreements are intended to give parents some flexibility to make child support arrangements without committing themselves to a long-term agreement. Limited agreements do not require independent legal advice before the agreement is signed. A formula assessment, by the Child Support Agency, does need to be in place before the agreement is lodged, and the amount payable in the terms of a limited child support agreement must be for at least the amount of the existing child support formula assessment If both parents wish to end a limited child support agreement, they can do so by making a new agreement or by simply agreeing in writing to end the existing agreement. The agreement can also be terminated unilaterally by either parent if the notional assessment changes by more than 15% in circumstances not contemplated by the agreement, or at anytime after three years. If both parents are happy with the agreement in these situations, it will remain in place.
Binding Child Support AgreementsBinding agreements are intended to provide a high level of certainty and finality about child support arrangements for parents. Legal advice is therefore required for both parties to ensure that parents understand the consequences of making such an agreement, and to provide some protection against coercive or misleading behaviour. A Binding Child Support Agreement differs from a Limited Child Support Agreement in that a Binding Child Support Agreement requires that:
- each parent must have independent legal advice to enter the agreement;
- each parent’s lawyer must provide a statement confirming that they provided the parent with independent legal advice;
- the statement of independent legal advice must be annexed to the agreement
- Each party to the Binding Child Support Agreement must have received independent legal advice before entering the agreement and must also receive legal advice before terminating the agreement, therefore making it more difficult for one party to unilaterally end the Agreement;
- An administrative assessment does not need to be in place before the Binding Child Support Agreement will be accepted and enforced by the Child Support Agency, except where the binding agreement provides for the crediting of a lump sum or non-periodic payments. An administrative assessment must be in place before a limited child support agreement can be accepted by CSA;
- When compared to a Binding Child Support Agreement, Limited Agreements are significantly easier to end. Only in very limited circumstances would the Court set aside a Binding Child Support Agreement;
- The terms of a Binding Child Support Agreement can be for more or less than the relevant formula assessment for child support, whereas the annual rate of child support payable under a Limited Agreement must be at least the assessed annual rate of child support.
- A binding child support agreement can also be made to be binding on a payer’s estate.
- Where a person is applying for consent orders;
- Where the matter is urgent;
- If the court has reasonable grounds to believe that:
- Family violence or child abuse has occurred, or;
- There is a risk of violence or child abuse of there was to be a delay;
- Where it is not practical for the person to participate in FDR (for example, because of physical remoteness); or
- Where a person has contravened and shown a serious disregard for a court order made in the last 12 months.
- Making orders for ‘make up time’;
- Varying an existing order;
- Putting a person on notice that if they continue not to comply with the order they will be punished; or
- And for very serious contraventions, imprisonment.
Recovery OrderA Recovery Order is an Order made under the Family Law Act that will require a child to be returned to a:
- Parent of the child;
- A person who has a parenting order that states the child lives with, spends time with or communicates with that person; or
- A person who has parental responsibility for that child.
Location Order, Commonwealth Information order and Publication OrderA Location Order will be made if a person subject to a parenting order breaches the order, and is unable to be found. A Location Order compels a third party, most times the Australian Federal Police or Centrelink, to provide information relating to the person’s last known address. A Commonwealth Information Order requires a commonwealth department, such as Centrelink, to give information pertaining to the child’s whereabouts as it is contained in the records of the department. A Publication order allows the media to publish details and photographs of the child and the person they are believed to be with. This is usually a last resort.
Airport Watch ListIf you are concerned that your ex-partner is likely to take the children overseas without your consent, whether indefinitely or otherwise, you may also be able to make an application for the children’s names to be placed on the Airport Watch List. The Airport Watch List alerts the Australian Police to the movement of children subject to a parenting order that limits or prevents the child from travelling overseas. To place a child on this list, you need to:
- complete a Family Law Watch List Request Form;
- have a Court order in place that limits or prevents the child from travelling overseas; OR
- have filed an application with the Court for a Court order that prevents the child to travel overseas; OR
- have filed an appeal with the Court against an order of the Court relating to the child that limits or prevents the child’s overseas travel.
- There are allegations of abuse or neglect in relation to the children;
- There is a high level of conflict and dispute between the parents;
- There are allegations made as to the views of the children and the children are of a mature ages to express their views;
- There are allegations of family violence;
- Serious mental health issues exist in relation to one or both of the parents; or
- There are difficult and complex issues involved in the matter.
If relocating with the child will not affect the current living arrangements of the children or the Orders that are already in place (including schooling arrangements and the time spent with each person subject to the parenting order), it is usually not necessary to obtain the consent of the other party first.
However, if you are planning to relocate somewhere with a child that will have a more significant effect on the child’s ability to spend time with the other parent or continue at their current school (for example), then it is imperative that you first obtain the consent of your ex-partner prior to relocating, whether Orders are in place or not.
If a parent intends to, or unilaterally relocates with a child, that is, without the knowledge or consent of the other parent, that parent can and will often make an application to the Court to stop the other parent from the relocation or to enforce a parenting order, if an order is in place.
In a lot (but not all) cases, the Court will Order the return of the child on an interim basis – that is, until a final hearing can be had to determine what is in a child’s best interests.
However, whether on an interim or final basis, and whether a party wishes to move with the children or not, the Court will always be required to give consideration to what is in the child’s ‘best interests’ (see our Frequently Asked Question: How does the Court decide who the children will live with?) in determining what Order to make.
Since 2006 there has been a “presumption” included in the Family Law Act 1975 that it is in the children's best interests for both parents to have equal shared parental responsibility. The presumption can be rebutted by evidence that it is not in the best interest of children for there to be equal shared parental responsibility. The presumption does not apply where there is abuse or family violence.
“Parental Responsibility” was previously referred to as “Guardianship” and involves all the duties, powers, responsibilities and authority parents have with respect to children. It involves matters such as:
- Religious and cultural upbringing
- A child’s name
- Relocation of a child’s residence.
The primary considerations are:
- the benefit to the child of having a meaningful relationship with both of the child's parents; and
- the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The additional considerations are:
- the views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
- the nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child);
- the extent to which each of the child's parents has: a. participated in making decisions about major long-term issues in relation to the child b. spent time with the child; and c. communicated with the child;
- the extent to which each of the child's parents has fulfilled their obligations to maintain the child;
- the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
- the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
- the capacity of each of the child's parents to provide for the needs of the child, including emotional and intellectual needs;
- the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
- if the child is an Aboriginal child or a Torres Strait Islander child, then the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture)
- the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
- any family violence involving the child or a member of the child's family;
- if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order;
- whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
- any other fact or circumstance that the court thinks is relevant.
Financial questions and answers
The first step in any family law financial settlement is to determine what assets are available for distribution between the parties.
In some circumstances, the court recognises that that this may involve including items which no longer exist, but which, in order to do justice and equity to the parties, needs to be notionally ‘added back’ to determine each party’s fair share of the existing pool of assets.
It seems reasonable that any waste, destruction or dissipation of assets and financial resources should be taken into account against a party who caused this to occur. The Family Law Act 1975 enables the court to consider destructive action which has financial consequences.
However, as a starting point, the court applies the general principle that, financial losses incurred by parties or either of them in the course of the marriage, whether the losses are from sole or joint liabilities, should be shared (although not necessarily equally). The exceptions to this are:
- where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets; or
- where one of the parties has acted “recklessly, negligently or wantonly” with matrimonial assets, the overall effect of which has reduced or minimised their value.
This was explained in the case of Mayne and Mayne  FamCAFC 192 as follows: “It seems that human experience (and common sense) shows that while parties are together, each might, from time to time and with the consent of the other, either express or implied, apply or appropriate assets or funds to his or her own purposes. When the relationship is good, no-one is likely to care — let alone keep records. Individual amounts may stand out…but many small transactions in combination may exceed, in total value, one large transaction.
The parties’ remedies for resolving disputes about expenditure while they are together are centred on them and them alone. Choosing one transaction from many prior to separation for different treatments, specifically ‘to be added-back’ or notionally included in the pool of property may make doing justice and equity between the parties difficult...”
In summary, orders for notional property and ‘add-backs’ to be included as assets to be divided between the parties are rare and difficult to obtain. This is particularly the case if the expenditure sought to be added back occurred during the ordinary course of the relationship (or occurred post-separation) and/or was with the knowledge/consent of the other party.
Some examples of where the Court has determined that it was appropriate to notionally ‘add-back’ property are as follows:
- where one party was found to have dissipated a significant amount of money/assets due to gambling, drug and alcohol addictions and had not sought treatment for their addition;
- where one party permitted a prospective purchaser (who in fact did not finally purchase the property) to occupy the matrimonial home free of rent or contribution for approximately one year;
- where one party was found to have substantially damaged the former matrimonial home during the period that they resided in it after the separation, thereby decreasing the overall value of the property.
However, even if the court is satisfied that an exception applies, rather than ‘adding’ the amount back into the pool, the Court may instead simply consider adjusting the percentage outcome overall to the actual value of all the assets (rather than notionally adding the value of the asset or money spent back into the pool). This adjustment may not reflect the actual amount of the add-back sought.
As orders that allow add-backs are difficult to obtain and circumstances justifying an add-back are difficult to prove such applications often result in a considerable cost to the party seeking to prove the unjust dissipation of assets. Such orders should be sought both sparingly and cautiously.
- The activity (or lack of activity) by either one or both of the parties – good or poor management of an asset or liability;
- Savings by one party from income earned from their employment;
- Market forces;
- Disproportionate contributions to an asset or liability by one or both of the parties;
- The special skill of one or both of the parties;
- Good fortune.
- Having the sole and/or primary care or control of the children of the marriage;
- Financial contributions (or lack thereof) to the maintenance of those children.
- There is an ongoing duty of disclosure that continues post-separation. The values of assets will continue to be revised up until the time your matter settles (or in some cases, the time of the trial);
- The net property pool includes all assets, liabilities and superannuation at the time of separation and any growth in those values post-separation;
- It is necessary to keep records of all contributions made, and, if the date of separation is in dispute, all records or evidence supporting the date of separation;
- Assets acquired post-separation are not ‘quarantined’ or removed from the matrimonial asset pool – rather, there is an assessment of each of the parties’ contributions to those assets;
- In some cases, the courts will adopt an asset-by-asset approach to assess each parties contribution to a particular asset; and
- Contributions as homemaker and parent will be very relevant and can offset other financial contributions (whether made pre or post-separation)
This depends on whether that money from your parents is a loan or a gift. Whether money given to the parties or one of them during the relationship is a loan or a gift will often only become contentious once they have separated.
A common example of this is where there is a debt that is allegedly owed to a family member. It is often the case that upon separation, one party will claim that the ‘loan’ was intended as a gift, with no expectation of repayment, while the other party will claim that the ‘loan’ was genuine and required to be repaid.Often times, loans from family members are:
- undocumented and legally unenforceable;
- made on unclear or uncertain terms; and
- given with little or no expectation of repayment.
In these circumstances, the Court will often disregard or discount the liability from the property pool but will instead treat the loan as a financial contribution that has been made on behalf of the party whose relative provided the money. In this sense, the loan is not ignored and appropriate adjustments to the division of assets will be made in favour of that party. It would then be up to that party to repay the ‘loan’ on their own.
There are of course many circumstances in which the Court will include a loan from a family member. In order to ensure that a genuine family loan is included in the asset pool, it is imperative that appropriate evidence be put before the Court to prove that there is an expectation of repayment.
Evidence of this nature can include but is not limited to:
- a formal loan agreement and registered mortgage over property owned by the parties;
- evidence (in Affidavit form) of the lenders/borrowers as to the terms agreed, intentions and time-frames for repayment, etc;
- evidence of repayments being made;
- evidence of previous loans by the same family members being repaid by the parties.
Parties wishing to document how their finances will be divided in the event that they separate at some point down the track, can enter into what is known as a Financial Agreement. In fact, a Financial Agreement can be entered into at any point before or during marriage or cohabitation.
One of the more appealing features of this type of Financial Agreement is that it can cover property of the parties that has not yet been acquired or come into existence.
However, there are a number of very strict requirements that must be met by the agreement in order for it to be considered binding. For example, both parties must have independent legal advice on the effect of the agreement, the advantages and disadvantages of entering the agreement and their likely entitlements under the Family Law Act 1975. This must be done before the agreement can be signed and in order for the agreement to become binding.
A Financial Agreement that is not binding does not remove the jurisdiction of the Court to make property adjustment Orders and only can be relied upon as evidence of the parties' intention to do so. Further, a Financial Agreement that is not binding will not likely result in a division of property in accordance with its terms.
It is therefore extremely important that both parties comply with the requirements strictly before they intend to rely on any part of the agreement.
Financial Agreements should only be prepared by Accredited Specialists in Family Law.
- Whether the “threshold” is met (i.e. that there is a 'need' for one of the parties to be financially supported by the other);
- The capacity by the other party to support the first party for a period of time.
- The matters in Section 75(2) of the Family Law Act 1975.
- The extent of support required (what is 'adequate' in the circumstances) and the amount of time maintenance is required to be paid for.
- Hopeless applications (applications made without merit or hope of success);
- Recovery orders for children where there was no merit in the child being withheld;
- Appeals (where the other party is wholly unsuccessful);
- Where a trial doesn’t proceed due to the other party being underprepared; or
- Where an offer is served on the other party during negotiations, and trial proceeds (the other party must obtain a less desirable result than exchanged during the final negotiation).
In many cases and for a variety of reasons, couples who have separated may let some time pass before they take steps to finalise their property settlement. This is not without risk.
Identifying the assets that are `matrimonial’ or `relationship’ and so available for distribution between a separating couple is an important and sometimes complex step in a property settlement. If you and your spouse or de facto partner cannot agree as to what assets are matrimonial or relationship, the court will have to decide this.
If some time has passed since separation occurred, one of the most commonly arising questions become “what value do we use for these assets? The value when we separated? Or the current day value?” This can cause some tension and be either a cause of concern or an unexpected bonus, depending on the circumstances.
From the outset, it is important to understand that the usual approach by the court in this regard is to value the matrimonial/relationship assets as at the date of trial and not as at the time of separation.
By the time of Trial, which depending on circumstances may be 18 – 24 months after proceedings have been commenced it is not uncommon for the value of assets to rise or fall, sometimes significantly.
While the Court will consider the changes carefully and, if appropriate, attribute such changes as being a contribution, positive or negative by a party (which may increase or decrease their overall entitlement), the value of the asset will be taken as at the date of the trial.
This approach does not mean a party can “dispose” of an asset prior to settlement, in an attempt to remove it from the pool of assets without consequence. If a party wrongly disposes of an asset following separation, the court will carefully consider the factual circumstances and may decide to notionally “add back” the asset and its value, treating that asset as part of the matrimonial/relationship and will be taken by the person who dealt with t as part of their share. This is a complex area of law and cases surrounding it are developing the law regularly.
Aside from implications from a change in your matrimonial/relationship assets following separation, prior to property settlement it is important to be aware of statutorily imposed time limitations. If you were married, applications for property orders must be made within 12 months of your divorce becoming final. If you were in a de facto relationship, your applications for property orders must be made within 2 years of the breakdown of your de facto relationship.
The simple answer is, yes. Superannuation is treated as property under the Family Law Act 1975 (“the Act”) and Part VIIIB of the Act gives a court the power to make orders so as to distribute superannuation interests between the parties (known as “splitting orders”). Splitting orders apply to all types of superannuation funds.
However, the way in which superannuation is treated may differ from other types of property because superannuation is held in a trust. Apart from hardship, illness or disability it is not possible to access superannuation benefits until a person reaches preservation age or they commence a transition to retirement pension while working.
Superannuation can be split between parties either by (1) a Superannuation Agreement, entered in to between the parties setting out the way in which the superannuation interests are to be divided between the parties, or (2) an Order made by the Federal Circuit and Family Court of Australia. The Family Law (Superannuation) Regulations 2001 set out the steps for valuing and implementing a splitting order. The methods of valuation differ depending upon the type of interest held in the superannuation fund (For example, the method for valuing an accumulation interest will differ from the method for valuing a defined benefit).
A superannuation splitting order generally allows the court to take the superannuation interests of one party and add it to the superannuation fund of the other party. A splitting order generally takes effect upon a payment from a superannuation interest becoming payable to the member spouse. At this time a certain amount (either a set amount or percentage) will be paid to the non-member spouse and the remainder will be paid to the member spouse. There is also an option available to the non-member spouse to roll out the payment to them from their superannuation spit) to their own or another superannuation fund.
- Real property;
- Business interests;
- Motor vehicles; and
- Furniture & Jewellery.
Real Property (Land/Houses and Buildings)Quite often any real property owned by parties will be the ‘big ticket’ item/s of their assets. Because most of the value is generally tied up in these assets, it is important to make sure that you get the value right. In some cases parties are able to agree to a value for real property through the use of appraisals obtained from real estate agents. While this can be a quick and inexpensive alternative, it has the danger of being imprecise. The most common approach to determining the value of real property is through an independent valuation by an expert engaged jointly by the parties. While this comes at a cost, the real value is in the precision of the report. This is the approach the Court expects parties to take in the event that there is a dispute about the value of a real property.
Businesses InterestsIf one or both of the parties own a business this can also often constitute a significant portion of the value of their assets. Parties should be cautious about reaching agreement in respect of the value of businesses interests. It can be dangerous and incorrect to agree to a value (even where provided by the company accountant) without some guidance from an independent expert. To obtain a valuation for a business, parties again, jointly instruct an independent expert who is a specialist accountant. The specialist accountant will assess the nature of the business and determine the appropriate methodology to apply to determine value. In some cases, the value of the business will simply be the value of its assets minus its liabilities.
Motor VehiclesIf there is a dispute about the value of a motor vehicle there are a number of websites such as Redbook and Carsales which can provide some guidance. These websites will generally provide a value range. If the issue remains in dispute the parties can appoint a joint expert to obtain a valuation of the motor vehicle.
Furniture & JewelleryWhen placing a value upon items like jewellery and furniture, the family law courts tend to adopt a conservative approach. The value they adopt will be the second-hand sale value of the items, not the insured or replacement value. If there is a dispute, parties are able to retain independent experts to value furniture and jewellery at a cost. In some cases, it is hard to justify the expense of obtaining a valuation for household items as they often have little second-hand value
There are many ways to find out what your spouse owned or currently owns in a financial settlement matter.
At the outset, it is the obligation of each party, pursuant to the Family Law Act 1975 and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, to provide “full and frank disclosure” of all of their assets, liabilities, superannuation interests and financial resources.
The disclosure of information required extends to paper documents (e.g. bank statements and tax returns), information stored on a computer device or any information which the other party may not know about. Disclosure must be made in relation to the parties current direct and indirect financial matters. This means that information relating to earnings, interest, property and income must also be disclosed. Any property that has been disposed of by way of sale, transfer or gift immediately prior to separation or after separation must also be disclosed, so as not to deplete any claim.
In the event of non-disclosure, we are also able to conduct Property Searches and Company Searches (should your spouse be involved in a company) to determine ownership or involvement. The Property Searches are governed by each State. This means we are able to locate any property currently held, or previously held, by your spouse in each state of Australia. The Company Searches are provided by the Australian Securities Investment Commission (ASIC) and can produce information relating to the company’s Directors, shareholders and assets since the inception of the Company.
Alternatively, if your spouse has not complied with the disclosure obligations, and we are unable to locate property by way of a Property or Company Search, it is possible, once court proceedings have been initiated, to issue a subpoena for the production of documents (e.g. to a bank), a subpoena to give evidence (e.g. from an accountant with knowledge of the relevant party’s financial circumstances) or both.
Contrary to popular belief, the process that the Court uses to determine a family law property settlement, is not a mathematical one. Given that each relationship and each family is different and that the Court has a wide discretion in making property settlement orders, outcomes can vary considerably. In practice, the Court generally follows a process involving a number of steps in determining the entitlement of each party to a relationship.
These steps are as follows:
- The Court must decide if it would be just and equitable to adjust or change the parties' current legal ownership of assets.
- To make a list of all of the current assets, liabilities and superannuation of each of the parties and arriving at a net figure, or what becomes known as the "net property pool".
- To assess the contributions of each of the parties throughout the relationship, to the net property pool and to the welfare of the family. Contributions can be direct (eg. made by one of the parties' to the relationship) or indirect (eg. made by one of the parties' family members), financial (eg. earning an income) or non-financial (eg. renovations or improvements to a property done by one of the parties) or made as homemaker or parent. Each party's contribution is assessed as a percentage or a range of percentages.
- To assess the current and future circumstances of each of the parties and make adjustments to the percentage arrived at in step 3. The list of factors in Section 75(2) of the Family Law Act 1975 must be considered. An example of some of the more common factors are:
- the age and state of health of each of the parties;
- the income earning capacity or discrepancy between the parties;
- the length of the relationship and its effect on each of the parties earning capacities; and
- who will have the primary care of the children into the future.
- For the Court to “step back” and assess whether the percentage or division achieved by application of the above 4 steps is appropriate or "just and equitable" in the circumstances.
Family Dispute Resolution
You cannot force your former partner to come to an agreement, but you can create circumstances whereby an agreement is more likely. As family lawyers, we play an important role in this. Creating conditions to assist you in reaching an agreement involves both you and your lawyer being respectful and courteous in dealings with your former partner and their legal representative. This does not mean you should not stand up for your rights or the rights of your children, give in to unreasonable demands, put up with abuse or accept less than you are entitled to. What it means is creating the best opportunities for an agreement to be reached. Rather, it means ensuring negotiations are respectful, even when you do not agree with the position they have taken and even when you may not feel like being courteous.
Relationship breakdown is an emotional experience and legal processes can create stress and greater animosity if not managed properly. When animosity exists in Family Law and Divorce matters, often it is the children who suffer the most. Our aim is to try and ensure that your matter is resolved as amicably and quickly as possible.
Unfortunately, some disputes do not resolve in an amicable and timely fashion, for various reasons. In those circumstances, proceeding to Court may be the only option available.
If you happen to fall into the very small percentage of the population that has to go to Court to obtain Orders, and you have behaved in a courteous and respectful manner towards your former partner, you will have arrived at the decision to initiate proceedings knowing it is a “commercial” and not an emotional decision.
Even if your matter is forced to go to Court, our aim is still to proceed in a cooperative manner to try to obtain an early settlement, if possible.
- Providing you with accurate advice as to what your likely range of entitlement is, or the likely outcome of an Application will be;
- Engaging in “co-operative” rather than “positional” negotiation techniques with your ex-partner. This means looking for the interests underlying a dispute and attempting to find mutually beneficial solutions rather than the classic “Dutch auction” where one party must lose something for the other to gain something;
- Ensuring that any power imbalances between you and your partner are addressed, and ensuring you make fully informed decisions. This involves ensuring all relevant information has been obtained from your ex-partner as well as provided to your ex-partner;
- Ensuring your matter is well prepared
Where there is a situation of urgency, where there is family violence child abuse or any substantive risk of harm to a child, those parties are exempt from first attending family dispute resolution and can make an application directly to the Court. We can provide you with advice in relation to whether your circumstances fall within one of the categories of exemption.
The Queensland Government operates a limited number of family dispute resolution centres throughout Queensland that are free – however, wait times tend to be greater.
There are also several private dispute resolution practitioners who charge higher fees for their services but are experts in their field. They’re also more often able to accommodate family dispute resolution sooner.
- you have reached an agreement and are applying to the court for a Consent Order;
- your matter is considered to be urgent;
- there has been or there is a risk of child abuse;
- there has been or there is a risk of domestic violence;
- you are responding to a court application made by your ex-partner;
- your matter has been ‘screened out’ as unsuitable for Family Dispute Resolution.
If an agreement is reached you may choose to keep it as an informal arrangement, document it, or make it into a binding court order. To make the agreement legally binding, the agreement will have to be drafted in a specific legal way and filed with the court. Your solicitor can discuss with you which of those options is most appropriate in your circumstances.
It is important that you do not sign any documents at Mediation without first obtaining advice from a family law solicitor. For example, with respect to parenting matters, if you do reach an agreement about your children and both you and your partner sign and date the agreement, it will be considered a ‘Parenting Plan’.
While a Parenting Plan is not a legally binding document, any court later making a decision about your children must still take the Parenting Plan into account so it is a legal document and therefore should not be signed without legal advice.
- Either you or your spouse is an Australian citizen (this can be by birth, descent or grant of Australian citizenship)
- Either you or your spouse currently live in Australia or have lived in Australia for the past 12 months
- You plan to live in Australia indefinitely and consider Australia to be ‘home’
- The marriage was valid in the overseas country and met all of their requirements of marriage
- The marriage would have been valid if it was carried out in Australia
The cost of a divorce application to be filed in the Federal Circuit and Family Court of Australia is currently $990. This can be reduced to $330 if you meet certain conditions.. This fee is set by the Federal Government and is increased every two years.
In some instances where an application for a divorce is not jointly made, there may be a cost to serve the application on your former spouse.
It is also important to note that if you require solicitors to act for you – for example, to draft your application or appear on your behalf at a contentious hearing – that additional legal costs will be incurred.
Getting divorced is not the same as negotiating and obtaining a property settlement. This will require a separate application to be filed and further costs incurred.
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Our website does not give legal advice. The information on this website is produced by Damien Greer Lawyers. It provides general information only on relevant topics of interest in relation to Family Law current at the time it is produced. No reliance should be placed on such general information as contained on this site and legal advice should be sought about the particular circumstances of your particular case.