Family Law

The effects of a family break-up are usually felt profoundly, not only by the partners or spouses separating, but by their children and other family members. While family law matters are typically some of the most trying and complex that we come across, the family law system is designed to be fair and equitable. Parenting laws focus on the best interests of the children, and property law aims to help separating couples reach a fair division of their property. We can help through this challenging time, keeping the interests of you and your family at the forefront to deliver a fair outcome that, wherever possible, keeps you away from the court.

Tips for when you separate

It can be difficult to think straight and make practical decisions after separating from your spouse or partner, but the checklist below might provide useful guidance on some of the things you may need to think about.

  • If you are concerned in any way about your safety or your family’s safety, you can contact your local police and, if necessary, apply for a restraining order.
  • Wherever possible, consider arrangements that provide minimal disruption from your children’s routine but that foster a meaningful relationship with both parents. In some cases, this may mean putting differences aside for the sake of the children.
  • Prepare an inventory of assets and liabilities whether they are held jointly or individually and obtain originals or copies of important documents such as passports, marriage certificates, birth certificates, superannuation, and insurance policies.
  • Ensure that major assets such as your home, other real estate, motor vehicles, boats, etc. remain insured.
  • Protect your privacy and update passwords and login details for online accounts, banking, social media, etc.
  • Notify your bank about your separation so you can discuss your banking needs moving forward, and any concerns regarding the use of credit cards or other aspects of your daily banking.
  • If relevant, contact Centrelink to see if you are eligible for government financial assistance.
  • Get legal advice to help protect your interests and so you know where you stand – you may need to discuss making or reviewing your will to take into consideration your new circumstances.
  • Keep a chronology of key dates, i.e., date of separation, etc.

Settling your property matter

In most cases you will not have to go to court to formalise the division of your property, but it is important that you are aware of your rights and the implications of a proposed settlement before you finalise your arrangements. You can do this by getting independent legal advice from an experienced lawyer. It may also be beneficial to consult your accountant or financial planner.

If you and your ex-partner have negotiated the key terms of your property settlement that is open and transparent, you can have these arrangements documented and finalised in consent orders or a financial agreement.

Consent orders are generally considered more formal than a financial agreement. The application for consent orders is filed with the court and full financial disclosure is required by each party. If, based on the information, the court considers the orders are just and equitable, they will be approved, making them legally binding.

A financial agreement operates like a written contract between the parties, but it must meet prescribed requirements for it to be valid. Each party must obtain independent legal advice and understand the nature and effect of the agreement they propose entering. The agreement is settled without intervention of the court.

Parenting arrangements

As with a property settlement, it is ideal for parents to come to an agreement between themselves about the ongoing care of their children. This can be achieved through an informal agreement, a parenting plan, or parenting orders.

An informal agreement is simply an undocumented agreement between the parties. The risk with an informal agreement is that issues may arise if the parties no longer agree on the arrangements.

A parenting plan is a non-binding written document setting out the arrangements agreed between a child’s parents.

Parenting orders are legally enforceable. They can be made by consent between the parties and filed with the court or made by a judge in circumstances where the parties do not agree and apply to have the matter determined by the court.

The family law system presumes that it is in the child’s interest to have some contact with each parent, even in difficult circumstances, such as where there is substance abuse. In those challenging circumstances, contact might have to be supervised, or arranged via the telephone or mail.

Fundamentally, Australian law is very reluctant to sever all contact between a child and their parent. It is important to understand that this reluctance has nothing to do with “parental rights” (which is not a concept in Australian law). Rather, research suggests that a child benefits from knowing their parents, even if their parents have challenges.

If you need assistance, contact one of our lawyers at [email protected] or call 03 5747 8251 for expert legal advice.