Family Law

Children's Matters

Changes to the Family Law Act

The Family Law Act has been recently amended with the new provisions applying from 1 July 2006. These amendments have changed some of the terminology and also the approach to children\'s disputes.

In particular is the presumption of shared parental responsibility. These changes have been introduced to encourage arrangements where the non-resident parent can spend more time with the children. The presumption does not apply if there are reasonable grounds to believe that the parent has engaged in child abuse or family violence. The presumption can also be rebutted by evidence that it is not in the best interests of the child.

Terminology has also changed. The child no longer "resides with"...but "lives with"... and the other parent no longer has contact but \"spends time with and communicates with the child.

How are the Child's best interests determined?

There are primary and secondary considerations when determining the best interests of the child. The first is "the benefit to the child of having a meaningful relationship with both of the child's parents" and "the need to protect the child from physical or psychological harm by being exposed to neglect, abuse or family violence. The additional considerations include any "views expressed by the child" (formally the wishes of the child), nature of the relationship with either parent or other person (including grandparents, the willingness and ability of each of the child's parents to facilitate and encourage a close relationship between the child and the other parent as well as other matters.

Matters such as whether child support has been paid or visits have been missed may also be considered.

Does shared parental responsibility mean equal time spent with the child?

It can do but not necessarily. Community expectations were that this would be the case, however the changes do not overcome any practical difficulty of the child spending equal time with each parent. However the Court must consider whether spending equal time with each parent is in the best interest of the child and if it decides it is must consider making an Order.

If the Court decides against equal time it must consider whether spending substantial and significant time with the other parent is in the child's best interests. Substantial and significant time is defined as including weekdays and weekends and is time that allows the parent to be involved int he child's daily routine and both parent and child be involved in occasions that are of special significance to each other.

Courts will now be able to take into account the times when parents fail to fulfill their major parenting responsibilities, such as not paying child support or not turning up for a contact handover.

Dispute Resolution

The Act also emphasises dispute resolution. Starting in mid-2007, the changes to the law phase in a requirement for parents to attend family dispute resolution sessions and make a genuine effort to resolve the issues in dispute, before taking a parenting matter to court. This requirement does not apply where there is family violence or child abuse.

Financial Agreements 

Binding Financial Agreement

These agreements are usually made by parties who are considering marriage and are sometimes referred to as Pre-nuptial Agreements or Pre-nups. These agreements are provided for by the Family Law Act and can determine such matters as:

a) Ownership of assets prior to and during the marriage
b) Financial contributions to be made during the marriage
c) Joint assets purchased during the marriage
d) Spousal Maintenance
e) What happens in the event of separation

These agreements may also be entered into during or after the marriage and are a useful tool in determining the rights of each party should the worst happen and the parties separate.

The Family Law Act provides that parties to these agreements must obtain Legal Advice prior to signing them. A Solicitor will advise on:
The effect of this agreement on the rights of the client;
Whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of the client to make this agreement;
Whether or not, at the time it was prudent for that client to make the agreement; and
Whether or not, at the time and in the light of such circumstances as were, at that time
reasonably foreseeable, the provisions of the agreement were fair and reasonable.

These types of agreements can save thousands of dollars in legal costs because they are made at a less emotional time than agreements made at separation.

Cohabitation Agreement

In Queensland and New South Wales (as well as other states) legislation has been introduced that
addresses the problem of the division of assets of De-facto couples on separation. Similar to a Binding Financial Agreement, a Cohabitation Agreement can determine:

a) Ownership of assets prior to and during the relationship
b) Financial contributions to be made during the relationship
c) Joint assets purchased during the relationship
d) What happens in the event of separation

As well as recognising certain agreements the Court can determine De-facto property matters if an Agreement cannot be reached. The factors that might influence a Court include:

i) Whether the couple has lived together for two years or more
ii) If there is a child of the relationship
iii) If there has been a substantial financial or non-financial contribution made by either party that would make it unjust for a Court not to make a property order.

Why a Financial Agreement?

Separation can be an emotional time in someone's life. As well as providing for the financial arrangements of parties during a relationship, the making of Financial Agreements can take some of the emotion out of deciding how property will be divided should the parties separate. These agreements can avoid tens of thousands of dollars in costs of litigation.

Legal Advice

MARK TREHERNE & ASSOCIATES SOLICITORS are experienced in drafting both Binding Financial Agreements under the Family Law Act and Cohabitation Agreements under the Property Law Act in Queensland and the Property (Relationships) Act in New South Wales. We can draft an Agreement that will take into account your special circumstances. Contact one of our Solicitors to find out more.

Property 

You've been in a relationship and decided to separate. What happens to the property we accumulated? What happens to my Superannuation?

Family Law has to be the most dramatic and at times controversial branch of Law in Australia. It need not be the most expensive.

The first thing to remember is that property is not just land. It includes things such as motor vehicles, jewellery, shares in a company or business and Superannuation. It can also be compensation payments or an inheritance.

You must institute proceedings for a Property Dispute and Spousal Maintenance within twelve months of Divorce. However it should be noted that most Property Disputes are settled amicably through Negotiation. In fact the Law is structured in such a way to encourage the disputing parties to arrive at a settlement before appearing in Court.

The Family Court (or The Federal Magistrates Court) follow three main steps when determining the rights of each party in a Property Dispute:

1. The Court looks at the extent and value of the assets of the marriage.
2. Then it will look at both financial and non-financial contributions to the marriage made by each party. This includes who worked, who had care of any children of the marriage, who brought what and how much into the marriage, the length of the marriage and who contributed as homemaker.
3. Finally, the Court looks at the future needs of both parties taking into account such things as the income earning capacity of either party, age, health care and support of children.

Property Settlement need not involve expensive Court proceedings

Most Property Disputes settle prior to any Court appearance.
Reaching an agreement with the other party offers many advantages, such as:
a) you make your own decisions
b) you greatly reduce the financial and emotional costs of legal proceedings
c) your continuing relationship as parents, if you have children, is likely to work better
d) you are able to move forward and make a new life for yourself, and
e) you may improve communication with your former partner and be better able to resolve disputes in the future.

You can agree on how your property should be divided without any court action. You do this through either:

1. a financial agreement, or
2. an agreement formalised by applying for consent orders in which you ask a court to make orders in the terms of your agreement.

There are heavy penalties for breaches of any Orders made by the Court including a term of imprisonment

Obtaining Legal advice

MARK TREHERNE & ASSOCIATES SOLICITORS offer a supportive environment and we have the experience to deal with even the most complicated Property Settlement Matter. We can advise you on dispute resolution, the pre-action procedures that must take place prior to initiating proceedings, the possible division of property and your rights. Contact one of our Solicitors to find out more.

^{This document contains general information only and should not be relied upon as specific legal advice. Readers should contact our office for detail information or advice. No responsibility for any loss and or damage caused to any person acting in reliance on this article shall be accepted by the Principal of this Office.}