Family Law

Separation and divorce are complicated. We witness first-hand the difficulties our clients experience as they try to navigate confusing processes and legal issues while facing stress and uncertainty. In addition to expert advice and strong representation, we offer empathy. We are committed to providing personalised, attentive representation that achieves the best possible outcome for you and your family.

Property settlements – FAQs

Whether you have modest assets or substantial property and business interests, we can help. Whatever the sum involved, you are guaranteed the same dedicated and thorough service, focused on protecting your rights to ensure you obtain a fair settlement.

What is a property settlement?

A property settlement involves the formal division of assets, financial resources, and liabilities between a couple whose relationship has broken down. It legally finalises their financial affairs and enables the parties to move on with their respective financial activities. The parties must disclose all assets and liabilities in a property settlement. Assets held and financial resources derived from outside of Australia also form part of the property pool.

Do I have to be divorced to split property?

As soon as you have separated from your spouse or de facto partner, you can make arrangements to split your property and debts. If you are married, you do not have to wait until you are divorced, and de facto couples are also eligible for property settlements under family law legislation. The following time limits apply for property applications made to the Federal Circuit and Family Court of Australia:

for de facto partners, any court proceedings for a property settlement must be commenced within two years of separation;
after a divorce is finalised, there is a twelve-month limitation period within which to bring proceedings for a property settlement or spousal maintenance.

Why should I obtain a formal property settlement?

An informal property settlement is not legally recognised as bringing the couples’ financial affairs to finality and may leave them vulnerable to future issues such as a claim by either party on post-separation assets, income, and inheritances. A formal property settlement pursuant to the Family Law Act may also allow parties to access transfer duty exemptions or concessions that would otherwise be unavailable when certain property is transferred.

Do we have to go to court?

No. In fact most property settlements are finalised out of court with the assistance of the parties’ legal representatives. If you and your ex-partner have agreed on how things should be divided between you, negotiations can be finalised through a binding financial agreement or consent orders. We will explain the differences between these documents so you can make an informed decision as to what arrangements are most suitable for your circumstances.

What if we can’t agree?

Firstly, the court needs to be satisfied that you have attempted to reach agreement, and in most cases, you will need to participate in dispute resolution. If this doesn’t resolve the matter, an application for property orders can be filed with the Federal Circuit and Family Court of Australia. The matter will be set down for hearing and a legally binding decision will be made by the court.

How does the court decide?

If your matter goes to court, it will consider and weigh the following factors.

What are the parties’ assets, liabilities, and financial resources?
What were the parties’ respective direct and indirect financial contributions?
What were the parties’ non-financial contributions to the relationship?
What are the parties’ future needs, considering their relative earning capacities, state of health, education, and responsibilities as primary carer of any children?
What is just and equitable when considering all the circumstances?

Children’s matters – FAQs

Children’s matters can cover a range of issues including who a child will live and spend time with, who will have parental responsibility for the child, how a child will communicate with a parent when they are not in their care, and matters relating to health care or education. Under family law legislation, all decisions about parenting arrangements must be made in the best interests of the child. The primary considerations in deciding what is in the best interests of a child 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 from harm.

What is shared parental responsibility?

Parental responsibility refers to the duties, power, and authority that parents have in relation to their child. Shared parental responsibility means that parents are required to consult each other regarding long term decisions for the child. There is a presumption that shared parental responsibility is best for the child, but this will not be the case in all situations.

Does shared responsibility mean children will spend equal time with each parent?

Shared parental responsibility does not necessarily mean that a child will spend equal time with each parent. The law ensures that the best interests of the children are served first, and a range of factors must be considered when determining whether children should spend equal time with each parent.

How can parenting arrangements be made?

It is beneficial if parents can come to an agreement between themselves about the ongoing care of their children. This can be informal, although it may be best to have these arrangements set out in a parenting plan or consent orders.

A parenting plan is a written agreement documenting the arrangements agreed between the parties. A parenting plan can be registered with the court but is not legally enforceable.

Parenting orders are legally enforceable. They can be made between the parties by consent and filed with the court. Alternatively, when parties cannot agree on parenting arrangements, the court will determine the parenting orders.

What is Family Dispute Resolution?

Apart from certain exemptions (for example in urgent cases or where family violence exists), parties wishing to make an application to the court for parenting orders must attend family dispute resolution. This is a form of mediation, conducted by an accredited practitioner, to encourage parties to negotiate a resolution outside of the courtroom. If an agreement is reached, a parenting plan can be developed, or consent orders filed with the court.

We focus on settling disputes in the most amicable, efficient, and affordable way possible and encourage our clients to explore all available options before proceeding to court.

Child support

Child support is managed and assessed through Services Australia. Payments are based on a formula that takes into consideration factors including parents’ income and the costs of supporting a child. Services Australia will collect and distribute the child support payments. Alternatively, parents can enter into their own child support agreement, which allows for more flexibility.

Services Australia must be convinced that the applicant and paying parent are in fact the parents of the child. In many cases, parentage will be accepted by providing documentation such as a birth certificate. Adopted children, children from previous same sex relationships and children born through artificial conception are included in the child support scheme. Challenges to parentage may be through a court and/or DNA testing. Such issues can be complex and emotionally charged – if disputes arise it is recommended that legal advice be obtained as soon as possible.

Adoption

Adoption is the process of formally transferring ‘parental responsibility’ from a child’s birth parent/s, or person with responsibility for the child, to the adoptive parent/s. Parental responsibility includes the rights, obligations and duties owed by a parent to his or her child. It involves important life decisions such as education, religion and health-related matters. If you are considering adopting a child, you should contact an accredited agency which will provide comprehensive information regarding the process. Applicants will need to provide significant personal information and various documents – verification of identity, birth and marriage certificates, medical reports, criminal record checks and personal references.

The Hague Convention

After separation, a parent or guardian may decide to move the children of the relationship overseas. However, this can only be done with the fully informed consent of the other parent, guardian, or a court order. International child abduction occurs when a parent or guardian takes their children from their home country without this permission.

The Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) provides a process for seeking the return of children who have been abducted either from or to Australia. We can assist in this complex and emotional process.

Same sex couples

Since December 2017, family law in Australia applies equally to both heterosexual couples and same sex couples. This is the case for both married and de facto relationships. Apart from some exceptions, same-sex couples who were married overseas may now automatically be considered legally married in Australia, irrespective of when the marriage took place.

The retrospective recognition of same-sex marriages brings about important legal considerations, particularly when it comes to estate planning. If you are uncertain about the validity of your marriage, and how it affects your estate planning or other legal affairs, you can discuss your concerns with a lawyer.

If you need assistance, call 03 5166 1858 (Traralgon) or 03 5127 2666 (Moe) or email [email protected] for expert legal advice.

We provide assistance Australia wide via video conference or other electronic communication.