Divorce And Family Law

Q: 4. What factors determine child custody arrangements?

Child custody, often referred to as parenting arrangements , is decided based on what is in the best interests of the child. The court considers factors such as the child’s relationship with each parent, their safety and well-being, and the capacity of each parent to meet the child’s needs. Parental responsibility is usually shared unless there is a reason for sole custody.

Every separation is unique, which is why it’s crucial to work with the best family lawyers in Sydney who understand your intentions from the outset. Whether it’s asset division or child custody, the way these matters are handled should be specifically tailored to achieve the outcomes you seek. At Shore Lawyers, our expert team of divorce lawyers in Sydney takes the time to listen carefully to your needs, crafting a personalised legal strategy designed to secure the best possible results.

Contact us today for a confidential consultation and let us guide you through this challenging time with the expertise you deserve.

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Divorce

We guide you through the divorce process, ensuring it is as smooth as possible while your interests are protected.

Eligibility for divorce in Australia is based on your status in Australia as a resident or citizen and a minimum period of separation of 12 months from your spouse. The first step is completion and e-filing of a divorce application with the FCFCA and its service on your spouse. We prepare and file divorce applications with the Federal Circuit and Family Court of Australia (the FCFCA).

We answer requisition and draft affidavits if the FCFCA requires clarification as to various circumstances related to separation. In most cases, attending court is not required for a divorce application. However, if there are children under 18 years of age, the court may request your presence to ensure appropriate arrangements are in place for their care and support. When legal and procedural requirements for divorce are met, the court issues a decree nisi, that is a provisional decree of divorce that becomes final or absolute upon the expiration of one month from the date of making of the decree.

Parenting

When making parenting orders, the Court must regard the best interests of the child as the paramount consideration.

It is important to note that every parenting matter is unique and the approach to be taken depends on your specific circumstances. The parents are generally encouraged to reach agreement on parenting through negotiation or mediation. They can create a parenting plan that outlines the practical issues of child living arrangements, parental responsibility, major decisions about the child’s upbringing and other matters. If parents cannot agree on parenting arrangements, they can apply to the court for parenting orders.

Before going to court, parents are required under section 60I of the Family Law Act 1975 to demonstrate that they have made a genuine effort to reach an agreement by way of a family dispute resolution process. Putting the best interests of your child first, we assist in facilitating the making of parenting arrangements or Court orders, addressing specific factors such as the child’s physical and emotional well-being, their views (if they are old enough to express them), the relationship with each parent, and the need to protect the child from harm or exposure to family violence.

Property Division

Property Division is the division of capital assets following the breakdown of a marriage or de facto relationship.

The court follows a four-step process in determining property settlements, by firstly identifying and valuing all assets and liabilities of the parties. This includes not only tangible assets like property, vehicles, and bank accounts but also intangible assets like shares, investments, superannuation, and businesses. The court will also evaluate non-financial contributions made by each party to the acquisition, conservation, or improvement of the assets. These contributions include homemaking and parenting responsibilities.

Contributions made before, during and after the relationship breakdown will be considered as well as the future needs of each party. Based on these considerations, the court will determine just and equitable division of property. The court has wide discretion in applying these factors and may vary the percentage split of assets depending on the specific circumstances of the case.

Binding Financial Agreements

You can achieve certainty in Property Division by way of entering into a Binding Financial Agreement.

If you and your former partner are able to agree on arrangements for your finances and property, you can formalise these arrangements outside of Court by entering into a Binding Financial Agreement (BFA). Also known as pre-nuptial or separation agreements a BFA is a legally binding agreement between the parties to a marriage or a de facto relationship that sets out how the assets and liabilities of the parties will be divided in the event of a relationship breakdown. Each party must obtain independent legal advice before signing the BFA.

Both parties must also provide full and frank financial disclosure at the time of signing the BFA, failing which may render the BFA void. BFA does not require Court approval. In fact, by entering into a BFA, you are effectively ‘contracting out’ of court proceedings. BFA can be challenged in Court if it is deemed to be invalid, unfair, or unenforceable. It is important to ensure that the BFA complies with all legal requirements to minimise the risk of it being set aside.

Child Support

Child support is money paid by one parent to another parent to support the care of their child.

Both parents have a responsibility to financially support their children. This responsibility does not change in the event of a divorce or separation. Child Support Agency (CSA) administers the assessment and collection of child support. The CSA determines the amount of child support by taking into account various factors, including the income of both parents, the number of children, the percentage of care each parent provides and any relevant circumstances. The CSA has the authority to collect child support payments from the paying parent and distribute them to the receiving parent.

It also has measures in place to enforce payments, such as garnishing wages, intercepting tax refunds, and taking legal action, if necessary. However, private arrangements can be agreed by the parents in a Binding Child Support Agreement that allows for agreed periodic payments, lump sum payments or other agreed arrangements, including a merely nominal payment of child support.

Spousal Maintenance

Spousal maintenance refers to ongoing support paid by one spouse to the other

Spousal maintenance is intended to assist the receiving spouse in meeting their reasonable expenses and maintaining a similar standard of living they had during the relationship. Spousal maintenance can be agreed upon by the parties through a private agreement or ordered by the Court, based on the circumstances. Provision of spousal maintenance is based on criteria set out in section 72 of the Family Law Act 1975.

When ordering Spousal Maintenance, the Court will assess the financial needs of the spouse seeking Spousal Maintenance, income and earning capacity of the other spouse, responsibility for the children, length of the marriage and other relevant factors. In situations where immediate financial assistance is required to meet urgent needs, Urgent Spousal Maintenance may be sought. It is typically requested by a spouse who is facing financial hardship or is unable to meet their immediate expenses.

Court Consent Orders

Another way of facilitating Property Division Parenting arrangements by agreement is to apply to the Court to make orders by consent.

If you have reached agreement about Parenting, Property, Maintenance and other family matters, we can draft appropriate consent orders to be made by the Court without the need to engage in protracted and expensive Court proceedings. You and your former spouse should then complete and sign a joint Court application that contains required asset and liabilities disclosures in respect of financial matters and proposed consent orders.

The Court will need to consider orders sought by the parties taking into consideration whether Parenting orders are in the best interests of the children and Property Division and maintenance orders are just and equitable. Consent orders can also be used to vary or discharge existing family law orders, e.g. in circumstances where there has been a significant change in your circumstances.

Change of Circumstances

There are a number of factors which the Court might consider to allow for a variation or setting aside a Court order.

Life can change unexpectedly to render some or all of the court orders unworkable. If the orders no longer reflect the actual arrangements for the child, a parent has relocated, lost their job or remarried, or children have expressed a wish to spend time with or live with a different parent, a formal application to change the orders may be made in court. However, the court has been careful to point out that change is an ever-present factor in life and needs to be of a serious nature to justify a review of final orders.

Once made, parenting orders come with legal obligations for both parents, and there are penalties for non-compliance without a reasonable excuse including: changes to the parenting orders, community service and in more extreme circumstances fines and imprisonment.

Application – Contravention

A Contravention Application may be filed with the Court when a party does not follow the orders made by the Court.

When existing court orders are not followed, and an application is filed with the court stating that another party has breached a Court order (this is known as a Contravention Application). Before filing a Contravention Application, you should consider the result that you want to achieve. The remedies available from the court range from the enforcement of an order to the punishment of a person for failure to obey an order.

For example, the Court may make an order that ensures the resumption of the arrangements set out in an earlier order; compensates you for lost contact time; varies an existing order; puts the non-compliant party on notice that if they do not comply with an order, they will be punished; or punishes them by way of a fine or imprisonment.

Family Violence

The court takes family violence very seriously. It recognises safety is a right and a priority for everyone.

Family Violence is described as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes them to be fearful. Examples of behaviour that may constitute family violence include: assault, stalking, repeated derogatory taunts, intentionally damaging or destroying property, intentionally causing death or injury to an animal, unlawfully depriving a family member of liberty, denying them financial autonomy, or unreasonably withholding financial support needed to meet their reasonable living expenses, at a time when they are entirely or predominantly dependent on such financial support, or preventing them from making or keeping connections with their family, friends or culture.

We understand the sensitive nature of family violence and will manage your domestic violence matter with utmost sincerity and respect.

Apprehended Violence Orders (AVOs)

An AVO is an order made by a court against a person who makes you fear for your safety so as to protect you from further violence, intimidation or harassment.

In the context of family disputes, we can assist in obtaining and enforcing AVOs to protect you and your loved ones. There are two types of AVOs: Apprehended Domestic Violence Order (ADVO) made where the people involved are in a domestic relationship. A domestic relationship means the people involved are related, living together in the same household, in a current or former intimate relationship, in a dependent care arrangement including foster carers, carers for a person with a disability or disability support workers, or people living in the same residential facility. Apprehended Personal Violence Order (APVO) is made where the people involved are not related and do not have a domestic relationship, for example co-workers or neighbours.
All AVOs say that the person you fear (known as the defendant) must not assault, harass, threaten, stalk or intimidate you. The defendant must obey the conditions of the AVO. If the defendant breaches an AVO, they may be charged with a criminal offence.

Family Mediation / Conciliation Conference

After a relationship breakdown, resolving issues related to future care for children and division of property can be achieved through family mediation and by way of conciliation conference, respectively.

Family mediation is a way of resolving disputes between people in conflict. The family law system encourages separated families to come to their own arrangements in caring for their children without going to Court by way of family mediation process covered under the Family Law Act 1975.
In Property Division matters, the conciliation conference is usually the second court event, following a procedural hearing, with compulsory attendance. It provides an opportunity for the parties to work with a Judicial Registrar to make a genuine effort to settle their financial dispute. Reaching an agreement with your former spouse will save the need for further court events, including a trial. You and your former spouse can meet with the Registrar separately if you have personal safety concerns.

After a relationship breakdown, discussions about dividing property and future care for children can become very emotional. This is when people may need to use a more formal mediation process with an accredited Family Dispute Resolution practitioner.

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FAQ's

1. What is family law in Australia?

Family law in Australia covers legal matters related to family relationships, including divorce, property settlements, parental responsibility and spend time with arrangements with children or so-called child custody, spousal maintenance, and parenting arrangements. It’s governed by the Family Law Act 1975 and primarily deals with issues arising from the breakdown of relationships.

2. How do I apply for a divorce in Australia?

To apply for a divorce in Australia, you must prove that your marriage has irretrievably broken down, demonstrated by living separately for at least 12 months. You can apply through the Federal Circuit and Family Court of Australia. If you have children under 18, the court will need to be satisfied with the arrangements for their care.

3. How is property divided after separation or divorce?

Property division in Australia considers both assets and debts, as well as contributions made by each party (financial, non-financial, such as homemaking). Courts aim for a fair division but not necessarily an equal one. Factors such as the length of the relationship, health of each parties, care for the children of the relationship and future needs of each party are also considered.

4. What factors determine child custody arrangements?

Child custody, often referred to as parenting arrangements, is decided based on what is in the best interests of the child. The court considers factors such as the child’s relationship with each parent, their safety and well-being, and the capacity of each parent to meet the child’s needs. Parental responsibility is usually shared unless there is a reason for sole custody.

5. What is spousal maintenance, and who can apply?

Spousal maintenance is financial support paid by one partner to the other. To be eligible, the applicant must show a need for financial support, and the other party must have the capacity to pay. Courts consider factors like income, age, health, and caring responsibilities.

6. Do I need to attend court to resolve family law issues?

Not all family law issues require court attendance. Many disputes, including property settlements and parenting arrangements, can be resolved through mediation or family dispute resolution. Only unresolved matters may go to court for determination and eventually a final decision after the hearing.

7. How does the court handle domestic violence in family law cases?

Domestic violence is taken very seriously in family law cases. ADVOs (Apprehended Domestic Violence Orders) can be issued to protect individuals from harm. The court also considers any history of violence in the relationship when deciding child custody and property division matters which can lead to adjustment in property settlement in favour of the victim.

8. What rights do grandparents have in family law matters?

Grandparents can apply for orders regarding the care of their grandchildren under the Family Law Act 1975. While they do not automatically have visitation rights, courts may grant them contact with the child if it’s in the child’s best interest.

9. What is family dispute resolution (FDR)?

Family Dispute Resolution is a mediation process used to help separating couples resolve disputes about parenting, property, and financial issues without going to court. It’s often mandatory before applying to court for parenting orders.

10. What happens if one parent wants to relocate with the child after separation?

Relocation disputes, especially when one parent wants to move a significant distance with the child, are resolved by considering the child’s best interests. The court will assess the impact on the child’s relationship with the other parent and whether the move is justified.

This FAQ covers common concerns and provides an overview of family law in Australia, helping clients understand their rights and obligations.

Divorce And Family Law

Our Family law expertise

Divorce

Parenting

Property Division

Binding Financial Agreements

Child Support

Spousal Maintenance

Court Consent Orders

Change of Circumstances

Application – Contravention

Family Violence

Apprehended Violence Orders (AVOs)

Family Mediation / Conciliation Conference

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