Family Law: Basic Survival Guide
DISCLAIMER: This general guide is not legal advice and is general information only. You should get legal advice on your circumstances.
Firstly, DON’T MISS YOUR TIME LIMIT!
Divorce - you may apply 12 months after separation in most cases
Property Settlement and Spousal Maintenance time limits:
Married couples: 12 months from the date of Divorce
De facto couples: 2 years from the date of separation
If you do not apply to the Court or settle and finalise your property or spousal maintenance claim within the time limit you will be barred from making a claim unless granted an extension.
In some cases a Court can extend the time limitation; however this will only be successful in some circumstances. If you apply out of time and the Court does not extend the time limitation you will be prevented from making a claim.
If your time limit is approaching or has passed you should seek urgent legal advice.
Things to think about straightaway after separation:
Change passwords for your personal accounts or social media etc
Do you or your family need any safeguards in place?
Protect your assets by securing funds in bank accounts
Prevent redraws on mortgages/loans from happening without your consent
Secure your important items in your possession
Consider Court injunctions to secure property if necessary
Seek advice on a Caveat to prevent the transfer of real estate
Perhaps sever any joint tenancy of real estate
Do a new Will?
Review and update your superannuation/insurance beneficiaries
Review or update any power of attorney or health directive
Be careful not to take action that results in the other party being unable to financially support themselves (it can be considered financial abuse).
The above considerations will depend on your circumstances; we suggest seeking our advice to decide what will be best for you.
Sometimes Urgency is required!
You may wish to make URGENT Court application if:
You or your children are at risk of harm
Your children may be removed from their home or Australia
You have not seen your children for a long period or they are removed from your care
You are unable to financially support yourself
Property of the relationship is being sold, wasted or destroyed
Your time limit is approaching or has passed
Your or the other party’s health is poor
If family violence is a factor you should seek urgent advice in respect of whether a Protection Order should be sought.
If any of the above or other urgent circumstances apply to you, we urge you to seek immediate legal advice to protect your interests.
Try to agree if possible
Being amicable and avoiding Court where possible will greatly assist your family law issues resolving in a timely and cost efficient way.
Once you have the necessary information and understand your entitlements there should be negotiations to agree on parenting and property arrangements. Offers may be exchanged and attending Mediation is recommended initially rather than Court (where no urgency).
Attending Mediation before applying to the Court is requirement for children’s matters to obtain a mediation certificate unless there is family violence, abuse, urgency, or mediation is not appropriate.
Children
Protect your children from risk of harm above all else (including family violence, abuse, neglect, substance abuse).
As a parent you are in the best position to assess their needs. Act in their best interests by ensuring their welfare and needs are met, while also promoting the children having a meaningful relationship with both parents.
Discuss your children’s needs with the other parent and attempt to make joint decisions for your children. If joint decisions are not possible, make a decision in the best interests of the child and inform the other parent.
Courts will make parenting arrangements that are in the best interests of the children. Equal time is not a starting point and the time the children live with and spend with their parents will be as the Court decides in the best interests of the children.
To decide arrangements for children the factors are:
a) what arrangements would promote the safety (including safety from family violence, abuse, neglect, or other harm) of the child; and each person who has care of the child (whether or not a person has parental responsibility for the child)
b) any views expressed by the child
c) the developmental, psychological, emotional and cultural needs of the child
d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so, and
f) anything else that is relevant to the particular circumstances of the child.
Where appropriate the children should spend time with both parents on weekdays and weekends so that each parent is involved in the children’s daily routine and events or occasions that are of significance to the parents and the children.
Agreements for Children
You should consider a Parenting Plan or Court Consent Orders.
A Parenting Plan:
is not binding
is not legally enforceable
is not final
can be amended without Court approval
will be considered by the Court if the parents end up in Court
Court Consent Orders:
are legally binding
are legally enforceable (with penalties for non-compliance)
are FINAL
Court Orders can be changed by the parties agreeing and signing a later Parenting Plan or Court Order.
To change a Court Order without agreement, the Court must be persuaded there has been a significant change in circumstances and it is in the best interests of the children.
It is necessary to have a Court Order for any issues you require to be enforceable, for example that children not be relocated or removed from Australia.
Parenting Plans and Consent Orders may detail:
who the children live with
what time they spend with their parents or others
parental responsibility (long term decision making for the children)
how the parents will communicate on the needs of the children
the communication the children will have with others
access to information of the children
financial support of the children (Parenting Plans only)
the process for resolving disputes
the process to change the Plan or Orders
any other matter relevant to the children
Child Support
Child support can be calculated:-
by the Child Support Agency using their formula based on the children’s time with each parent, the parent’s incomes, and the parent’s dependents
by a Variation Application to the Child Support Agency if a party wishes to vary the child support from the formula
by agreement between the parties, recorded in a Binding Child Support Agreement
A parent may apply to vary child support based on the child having significant needs, agreed education expenses, the property or debts of the parents, a parent operating a business and having low taxable income, and other reasons.
Binding Child Support Agreements can deal with periodic payments (eg. weekly/monthly), lump sum payments, or ongoing expenses such as education, medical or other expenses of the children.
A Binding Child Support Agreement is final and can generally only be changed by another Binding Child Support Agreement. Both parents need a lawyer to advise and sign off on a Binding Child Support Agreement.
Spousal Maintenance
If either spouse is unable to support themselves to a reasonable standard of living comparable to that during the relationship, they may be entitled to apply for spousal maintenance. Spousal maintenance applications can be made urgently to the Court.
The Court considers the reasons why the applicant cannot support themselves, and then looks at the applicant’s income, less expenses, less government benefits to calculate any need for maintenance. The other party’s income, less expenses, less government benefits is then calculated to see if they have an ability to pay spousal maintenance.
As noted above, the time limits for spousal maintenance are 12 months from Divorce for married couples and 2 years from separation for de facto couples.
Divorce
Things to know about Divorce:
Usually you must wait 12 months after separation to apply
Until you are divorced your ex can claim on your Will
If your ex owns most of the property/assets, do your property settlement before a Divorce
Divorce only ends the marriage, and does not separate your property
Once you are divorced the 12 month time limit for property settlement and spousal maintenance starts running
Divorce can be applied for jointly or separately
If you have children the Court will need to be satisfied there are proper arrangements in place for them before granting a divorce
Property Settlement
Property settlement for married couples and de facto couples is basically the same process (except for time limits noted above).
Married couples can do a property settlement any time after separation and do not have to wait for a divorce.
Steps for working out property settlement:
Should there be a property settlement? (Or should property just be left as is?)
Identifying and valuing property, assets, and debts to work out overall property pool
What contributions have the parties made at the start, during, or after the relationship in terms of financial, non-financial, and homemaking and parenting?
What are the future needs of the parties?
What is a just and equitable overall division of property?
Calculating your entitlements to property settlement is a complex process and we strongly recommend legal advice to ensure your interests are protected.
Some important things to know about property settlement:-
Obtain and exchange full and frank disclosure of documents and information
Do title, company, and other searches to check/identify property
Get valuations so you do not receive less than you are entitled
Superannuation is included and can be split from one party to the other
Trust and company property is usually included
There can be serious tax/duty consequences, so seek tax and financial advice from your accountant
Get advice suited to your needs
Every family has slightly different circumstances to other families. That is why it is important to obtain legal advice that is based on your situation and tailored to your needs.
This basic survival guide only gives the basics of family law and you should not rely on it without seeking your own independent legal advice.
There are multitudes of cases, the Family Law Act, Family Court Rules, Federal Circuit Court Rules, and other legal doctrines that bear upon your family law rights and entitlements, and therefore this basic guide should not be relied on without legal advice.
For a more detailed and personalised discussion of anything in this guide please do not hesitate to contact one of our Ipswich family lawyers for a chat.
David Millwater
David is a Partner of Millwater Tyrrell Law and holds Bachelor Degrees in both Law and Science from the Queensland University of Technology (QUT).
David was admitted as a lawyer in 2003 and has been working in the Ipswich area since that time. For the last 10 years David has primarily practiced in family law, and is an accredited family law resolution practitioner.
He has assisted countless clients to achieve favourable results in their matters by both agreement and Court proceedings.
His experience includes:-
-Complicated and high value property settlement negotiations and agreements
- Relocation parenting cases
- Agreements for parenting arrangements for children
- Child support agreements
- Spousal maintenance agreements
- Mediation and conferencing
- Family violence protection applications (DVOs)
- Criminal and traffic matters
- Litigation
David has an empathetic approach and understands how important it is for people to understand their future when developing a plan of action for each client.