Family Law

Share Parenting

Amendments to the Family Law Act in 2006 have led to a change in how parenting arrangements after family separation are managed, encouraging parents to adopt a more cooperative parenting approach and thereby avoid expensive and stressful Court litigation.

The law now recognises that both parents have equal shared responsibility for parenting decisions although children will not always spend equal time with each of their parents, and sometimes that recognition may be applied if there is domestic violence, drug and alcohol abuse or other issues of concern.

Parenting Orders

Parenting orders can be made by the Court in respect of a range of issues including:

• Who a child will live with (custody) and spend time with (visitation)
• Care, welfare and development of a child
• Process of resolution where there is a disagreement between the parents
• Exercising of joint parenting responsibility

If parents cannot agree on parenting orders and choose to go to Court it is a requirement that parents undertake a compulsory family dispute resolution process prior to an application being made before the Family Court for a parenting order. This requirement can sometimes be relaxed if there are issues of domestic violence, situations of urgency, or for other reasons.

Separation and Divorce

An Application for Divorce is filed in the Federal Magistrates Court or Family Court. At the time of filing, a hearing date will be given and if there are no children of the marriage under 18, the parties are not required to attend, though may still choose to do so.

If there are children of the marriage under the age of 18, the applicant will be required to attend the hearing.

If there are children involved, the Court will be concerned that arrangements have been made for their welfare and development. Once the Court is satisfied, it will grant a Certificate of Divorce which becomes absolute one month later.

Parenting Plans

In most circumstances, parents are able to come to an agreement about arrangements for their children following separation. If they do so, they are able to make a Parenting Plan which sets out details of those arrangements for their children.

A Parenting Plan is in writing and is signed and dated by both parents. Unlike Consent Orders a Parenting Plan is not binding. It may cover one or more of the following issues:

• Who the children will live with
• The time the children will spend with each of their parents
• The process of dispute resolution if there is any disagreement or change to the Parenting Plan
• Any matter involving the care, welfare or development of the children

Despite its many benefits, a Parenting Plan is not a legally enforceable document. As the Parenting Plan is not made by the Court (such as a parenting order), the Court is unable to force parents to follow the terms of a Parenting Plan.

Family Law

Our aim at Speakman Lawyers is to assist you in achieving the best results on your behalf without having to go to the time and expense of going to Court. In most cases, our clients are able to reach agreements which are then formalised, for example, in Consent Orders, which are filed in the Court.

In order to achieve these agreements, there are many methods used including direct negotiation between the parties and/or their lawyers. Also, mediation is often used and can be a highly successful method of assisting parties to reach an agreement. Mediation allows parties to achieve an outcome in their case based on their own decisions and not leaving it up to the Court.

Binding Financial Agreements

Binding Financial Agreements can be made by people in either a married or defacto relationship. The agreement can be made before, during or after the marriage or relationship.

An agreement made prior to a relationship commencing, often referred to as a pre-nuptial agreement, is one type of agreement which is well known in the community.

A Binding Financial Agreement seeks to put in place conditions the parties agree upon as to the settlement of their financial assets (both individual and collective) in the event that their relationship breaks down.

At Speakman Lawyers, we encourage our clients who may be concerned as to their financial security should a relationship break down to consider putting in place a Binding Financial Agreement with their partner or spouse prior to or during the relationship.

However, if a relationship has broken down irretrievably, we normally advise our clients, once they have reached an agreement with their partner as to the property settlement, to enshrine that agreement in a Consent Order. These Consent Orders are then filed in the Court.

Consent Orders

When the parties to a Family Law case have reached agreement as to:

(a) The distribution of the property of their relationship; and/or
(b) Parenting arrangements.

Speakman Lawyers strongly recommend the formulation of the property settlement or parenting arrangements by the use of Consent Orders.

These are orders that are signed by the parties and filed in the Court.

If the parties have used a Binding Financial Agreement to settle their property dispute, the process involved should one of the parties breach the agreement, is more involved, both in time and expense.

Defacto Property Settlement

On 1 March 2009, amendments to the Family Law Act referred power to govern financial matters following the breakdown of a defacto relationship to the Commonwealth. These laws also cover same sex couples.

Property settlement claims can be commenced as a result of the breakdown of a defacto relationship if the parties have had a child of the relationship, have been in the relationship for at least two years, have made contributions to the relationship, or for other relevant reasons.

As with property settlement matters for married parties, a person who was in a defacto relationship is entitled to a settlement which properly takes into account the contributions that they have made (both financial and non-financial) to the relationship as well as their future needs.

Property Settlement

In the great majority of cases, we find that parties are able to agree as to how their property will be divided following separation. An agreement would then be formalised in the form of Consent Orders to be filed in the Family Court, the Federal Magistrates Court or the local Magistrates Court. Consent Orders have the same legal force as an order made by a Judge. As outlined earlier, parties also have the opportunity of entering into a Binding Financial Agreement.

If parties are unable to agree as to how their property will be divided following separation and formalise that agreement then an Application will need to be filed in the Court within 12 months of the divorce becoming final.

The “property” includes all property owned by both parties prior to and after separation.

In most cases, it is necessary to ascertain the property pool i.e. the extent of the property owned by both parties prior to and after separation.

Parties are under an obligation to make full disclosure of all items of property owned by them.

An assessment is then made as to what each party is entitled to from the property pool. The Court must be satisfied that any property settlement is just and equitable.