Frequently asked questions

FREQUENTLY ASKED QUESTIONS

We have an amicable separation – do I have to go to court?

Most matters resolve without the need to utilise the court system to reach a decision regarding parenting and/or property. These matters are resolved by “consent”. Consent can be reached through a variety of processes.

Counselling

Counselling can assist to work through matters relating to parenting and other issues arising from separation. Counselling is sometimes used to assist parents to ascertain the views of the children about living arrangements, or to help separating parties talk through the practicalities of separating assets.

Negotiation

Can occur informally by discussing settlement options with the other party directly, or through lawyers. Negotiation can involve communication via written correspondence or telephone with the aim being to resolve the matter without the need to proceed through the court system.

Mediation

A mediator is an independent third party who is “neutral”. Mediators can be engaged directly by you or engaged through a lawyer – meaning that your lawyer will also attend the mediation. If your lawyer does not attend the mediation you can contact them following the mediation and advise them of the result – engaging them to draft up the agreement so that it can be formalised.

There are different methods of formalising agreements depending on what the agreement relates to. In family law, the most common types of agreements that we see are:

• Children – Consent Order or Parenting Plan
• Property settlement and/or spouse maintenance – Consent Order or Binding Financial Agreement; and
• Child Support – Child Support Agreement.

You need to ensure that any agreement is formalised using a method that is recognised by the Family Law Act 1975. Should you not formalise the agreement it is unlikely that the court will enforce it, even if you have taken steps in accordance with what the agreement states.

Under the Family Law Act 1975, a court cannot grant a divorce unless it is satisfied that your marriage has irretrievably broken down.  The “irretrievable breakdown” of a marriage is proven by having been separated for 12 months.  In marriages where there are children under the age of 18, the court must also be satisfied that appropriate arrangements have been made for the care of the children.

It is possible to remain living under the one roof and still satisfy the court of the 12 month separation requirement as long as you can demonstrate to the court that you are separated under the one roof.

Divorce applications are dealt with in the Federal Circuit Court.  Once your divorce order becomes final you have 12 months to commence court proceedings if your property settlement has not been resolved.  If this time limitation passes you must seek the leave of the court to “proceed outside of time’ and if such leave is not granted you will lose your rights to seek a property settlement.

A defacto relationship does not have to be formally terminated in the same way that a marriage does.  Defacto couples have two years from the date of separation to finalise a property settlement or commence court proceedings.  Aside from this difference defacto couples are dealt with under the Family Law Act 1975 in in the same way as married couples.

The law says that the paramount consideration when determining where children should live is that any decision made is in the best interests of the children.  Normally this means that the living arrangements for children should result in them being able to have a meaningful relationship with both parents.

While equal time is not always in the children’s best interests, if there is an absence of domestic violence this should be the first consideration of the parents, though it is not always reasonably practicable.

Arrangements should be reached having consideration to the circumstances of each individual family unit.

Unless there is urgency in a matter, parents seeking the assistance of the court for parenting matters must first attempt mediation with a Registered Dispute Resolution Practitioner.

Most parents have what we call joint parental responsibility when it comes to decision making concerning their children.  This means that decisions regarding the long-term care, welfare and development should be made by the parents jointly.  This includes the decision to relocate, take a child overseas (even for a holiday) and change a child’s name.  If you have trouble reaching agreement regarding these issues you should attempt dispute resolution with a registered provider.  As a last resort, if an agreement cannot be reached you can seek a decision from the court.  Legal advice should be obtained regarding the issue as each circumstance has a different set of facts and therefore a different result.

Good communication is the key to a successful co-parenting relationship and therefore in the best interests of your children. If you are struggling with communication, there are services available that run post separation parenting courses to assist with this very issue. Check out our local services guide at the back of this booklet for more details.

Child support is assessed using a formula that takes into consideration the age and number of children in care, the number of nights that the children spend with each parent and the income of each parent. Child support is assessed by the Child Support Agency (“CSA”). This assessment may be departed from in special circumstances including:-

• The children have special needs;
• The children are attending private school;
• There are significant transport costs involved in spending time with the child; and
• Either parent’s income cannot easily be calculated.

You can agree to a child support arrangement outside of the assessment.  An arrangement of this nature is usually documented in a Child Support Agreement.  There are two types of child support agreements as follows:-

1. A Binding Agreement – must be signed by a solicitor giving independent legal advice and can only be terminated by a further agreement or Order of the court.
2. A Limited Agreement – does not need a solicitor’s certificate, however, there must be a formula assessment already in place and the amounts payable under the agreement must be equal to or greater than the formula assessment.

The CSA is usually responsible for collecting payments unless you elect for private collection. It is possible to enforce non-payment through the court. If your payments fall behind, the agency has the power to take the money from your wages, take the money from your taxation returns, prevent you from overseas travel, and/or enforce non-payment through the court.

The Family Law Act 1975 sets out how property is to be divided for married and defacto couples.  In simple terms the court follows the four step process:-

1. Assessment of the property pool – that being all assets and liabilities of the parties, regardless of how those assets are held.
2. Consideration of the financial and non-financial contributions of the parties throughout the relationship.
3. Assessment of the future position of the parties considering the obligations to children, financial capacity/situation and health.
4. Finally the court must consider whether the orders it proposes to make after completion of the previous steps are just and equitable.

To get the best out of any legal appointment it is important to turn your mind to the above three considerations prior to your appointment.

Under the Family Law Act 1975 any party to a separation is obligated to make full financial disclosure to the other.  Having a full and proper understanding of the other party’s financial situation is imperative to ensuring you reach a settlement that you are entitled to.  Further, having easy access to your financial documents and disclosing them quickly can assist to resolve matters expediently.  The obligation of disclosure continues until the property settlement has been resolved.  Documents that you will need include, but are not limited to, bank statements, taxation returns, pay slips, settlement statements from the sale and purchase of property etc.

Take a look at our disclosure “shopping list” at the back of this booklet.

The first step in negotiating a property settlement is assessing the value of the property pool.  If you are not in agreement with the other party as to the value of assets the usual course is to appoint an independent third party to act as a joint expert to value an asset.  If you are still unsatisfied with the value legal advice should be obtained about the steps taken throughout the court process when expert evidence is in dispute.

Superannuation is an asset that can be divided and is part of the property pool.  A superannuation split is when an order is obtained to “split” or otherwise transfer a portion of one parties superannuation fund to the nominated fund of the other party.

More frequently asked questions and answers

Post Separation Parenting Program

Financial Planning

Court Room Etiquette

Contact Us