Arguably one of the toughest times in any relationship is when couples decide to go their separate ways. Adding to the emotional strain of it all, is wondering what happens next?
During these difficult times, it is worth arming yourself with the knowledge and expertise of a trusted family law firm to help you through the process. The family law lawyers at KPL in Fairfield can provide you with exceptional, practical advice so that you can start the next chapter of your life from the best possible position.
KPL lawyers have helped many individuals and their families advance through these stressful situations using empathy and strong legal expertise. We understand that this is undoubtedly a tough time for all involved, rest assured that we are here to help.
What Are the Laws That Apply to Family Law?
Family law is predominantly governed by The Family Law Act 1975 which is read in conjunction with the Family Law Rules 2004 and the Federal Circuit Court Rules 2001. Most family law matters are heard before the Family Court of Australia and in the Federal Circuit Court of Australia. The purpose of Family Law is to settle and mediate family disputes that arise. These disputes include:
- Division of property;
- Division of other assets;
- Spouse maintenance;
- Child support;
- Parenting arrangements.
Disputes are ultimately formalised and enforced by way of a court order. An order is the term for a legally binding decision made by a judicial officer of the court. Once an order is made, parties must obey it as law. Breaching an order is a severe offence and penalties can range from being issued a fine, being ordered to pay the other party’s costs, and jail time.
That isn’t to say disputes cannot be resolved amicably between two individuals. It is possible and in fact, encouraged by the courts for parties to draft and file an agreement together with the help of family lawyers (or separation lawyers). This type of agreement is called a consent order. A consent order is similar to the other order mentioned above, except it is a legally binding decision agreed to by the parties to the proceedings and confirmed by a judicial officer after being reviewed for fairness.
What Are Parenting Arrangements?
Parenting arrangements relate to child-rearing. Family Law courts consider parenting arrangements under two main areas:
- parental responsibility; and
- care time.
Decisions on how parental responsibility and care time is shared between parents can be made in three ways:
- Adjudicated matters – occurs in front of a judge in a courtroom.
- Consent after litigation – occurs when an agreement is made between the parents after the case begins but before the final trial.
- Pure consent – occurs when an agreement is made between the parents through mediation or family law lawyers. This agreement can be in the form of a parental plan or consent orders.
What is parental responsibility and what is care time?
Under the Act, it broadly means all the duties, powers, responsibilities and authority which by law, parents have in relation to children. It is a very inclusive and overarching term that extends to most aspects of a child’s life from what socks they should wear to what religion they should practice. Having parental responsibility also means taking on the duty of protecting the child’s rights until they are of age, as well as supporting them financially.
The Act automatically gives both parents equal and shared parental responsibility unless there is what is commonly known in layman’s terms as a “child custody dispute”. In these instances, a parent must show that there are child safety concerns or other reasonable factors that would preclude the other parent from having equal and shared parental responsibility.
Care time on the other hand, refers to the actual face-to-face time each parent can physically spend with their child. This is usually split in ratios, i.e. equal time, substantial and significant time or fortnightly time and is decided by the courts or agreed again by consent between the parents. Over the years, family law has refined its approach on parenting arrangements, with the focus now being on parental responsibility rather than parental rights. When making determinations regarding parental responsibility and care time, the Act requires the court as well as the parents, to put the best interests of the child first. KPL lawyers are experts when it comes to negotiating parental arrangements and will achieve the best possible outcome for you and your children.
Who Pays Child Support?
This area is not covered by the Family Law courts but is governed by the Child Support (Assessment) Act 1989 and carried out by The Department of Human Services. Generally, both parents are liable to pay child support if there is capacity to do so. The amount of child support each parent pays is calculated by considering the below information:
- Income of parents.
- Percentage of nights each parent has the child or children.
- Number of children aged below the age of 13 and the number aged between 13 and 17.
- Whether the parent has any other dependents.
An application can be made before the Family Law courts to depart from the child support formula assessment if there are circumstances that justify such an application (e.g one party has significantly more assets or financial resources than the other).
You can find a child support calculator via the Australian Government Department of Human Services website https://processing.csa.gov.au/estimator/About.aspx. Please be aware that this is merely a guide and does not guarantee an accurate calculation.
How Do We Divide Finances, Property and Assets?
Decisions relating to the division of finances, property and assets can be dealt with in three ways:
- Mutual agreement between the parties without the need for consent orders.
- Mutual agreement between the parties via consent orders in the Family Law Court.
- Via an application for financial orders (this order also includes the division of property and any payment of spouse or de facto partner maintenance).
It is essential to note when making an application for financial orders that time is of the essence. Married couples only have a period of 12 months from the official date of divorce to file an application for a financial order. For de facto couples, it’s two years from the date of separation. This timeframe is called a limitation period.
After the limitation period has elapsed, you will not be able to make an application for financial orders without first seeking leave from the Family Court. The act of seeking leave means to ask the court for permission to proceed despite being outside the timeframes required for the limitation period.
In this scenario, you will need to ask your lawyer to assist in providing the court with a strong argument as to why:
- You were late and not able to finalise your financial settlement within timeframes; and
- You would suffer financial hardships if you were unable to proceed with your application.
Approving leave is not always guaranteed, so it is vital that you speak to a separation lawyer and seek proper family law advice well before the end of the limitation period. KPL lawyers can advise you on the best practice approach to filing a financial order to protect your assets in a fair and just way.
How Will I Know What My Share Is?
The short answer is “it depends”. If the matter is before a judicial officer, they will take all the available evidence and information (including testimony from you and your former spouse) and make a decision based on the principles of equity and justice. The Act provides some guidance as to what may be considered by the court:
- The total value of the assets and also if there are any debts.
- Direct financial contributions by each party (e.g wages).
- Indirect financial contributions by each party (e.g gifts and inheritances).
- Non–financial contributions such as child rearing and caring for the home.
- Future support requirements (age, health, financial resources, care of children and ability to earn an income).
It is important to note that superannuation is now considered part of your property settlement. The different types of superannuation and the calculation of value varies and can be quite complicated, so it is advisable to seek legal advice before attempting to settle on your super.
What About Spousal Maintenance?
Spousal maintenance is an obligation for spouses to support one another financially, even after they have separated or divorced.
Under the Family Law Act, a legal or de facto spouse may claim spousal maintenance after separation. To achieve this, a spouse must first prove that they are unable to support themselves financially and that their other spouse has the financial capacity to fulfil that support.
When considering essential factors such as “how much” and for “how long”, the courts will look at all the available evidence and calculate what is a reasonable weekly amount.
Some of this evidence includes:
- Finances (including income and property)
- Capacity to work
- Job skills
- Standard of living
- Whether the marriage or de facto relationship has affected either parties ability to earn
Where to from here?
What you have read is just a brief overview of some of the aspects that demonstrate just how complex the family law system can be. It is often a confusing process to navigate during what is already a very stressful period. The stakes are usually high and it can be emotionally tolling on everyone involved. With this in mind, you should ensure that you have the best legal team on your side to advocate for you, your children and your finances so that you can be set up for a brand new start. At KPL Lawyers, we believe that separating isn’t the beginning of the end, but oftentimes the start of a new beginning.
Speak with one of our team members for some initial advice on how to prepare for your life ahead.
Arrange your consultation here