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We understand that the Family Law process can be overwhelming, and it is hard to understand where your matter falls within the Family Law pathway.
We apply a solution-focussed approach and work with clients to resolve matters by consent out of Court and minimise the burden of protracted litigation, which impacts clients both financially and emotionally.
If the matter is unable to settle by agreement, we are ready to advocate for our clients and support our clients to navigate the Court processes.
Settlement Processes & Informal Arrangements
There are a number of settlement processes and informal arrangements available to reach an agreement in your parenting or property related dispute:
1. Negotiation and Exchange of Offers: We can commence negotiations with your ex-partner, or their legal representative, and exchange offers with a view to filing Consent Orders if agreement is reached.
2. Mediation: In the event that an agreement cannot be reached by way of direct negotiation, the parties can attend mediation to attempt to resolve the dispute before making application to the Court. Mediation can assist the parties to reach an agreement or narrow the issues in dispute. In parenting matters, a certificate known as a Section 60I Certificate will be issued after the family dispute resolution process is undertaken, which a party can then use in support of their application to the Court. There are exceptions to this rule, such as urgency.
3. Informal Agreement:Informal agreements are not binding and a common issue with informal agreements is that parties breach the agreement and or seek a different agreement in future which they are at liberty to do, as an informal agreement is unenforceable by the Court.
4. Binding Financial Agreement (BFA): Binding Financial Agreements do not involve the approval of the Court, although they must be drafted pursuant to the Family Law Act. After parties and their lawyers execute the BFA, it becomes an enforceable Agreement. Unlike consent orders, parties must be independently represented and so at least 2 lawyers must be involved. There have been cases where BFAs have been overturned in Court (see section 90K of the Family Law Act).
Each person’s situation is unique and requires considered advice tailored to the individual and family’s needs. The experienced team at Next Legal & Conveyancing are determined to achieve the best possible outcome for you.
Formalising Your Agreement
There are a number of ways to formalise your parenting or property related dispute:
1. Consent Orders: A secure and economic way to resolve both parenting and property matters which requires an application to the Federal Circuit and Family Court of Australia (FCFCOA). The application is reviewed and made “in Chambers” without parties or legal representatives appearing in Court. Consent Orders provide a legally binding and enforceable agreement.
In parenting matters, prior to making the orders, the Court considers whether the orders sought are in the best interests of the child/children. The orders will remain binding and enforceable until the child or children turn 18 (unless a party can prove that a significant change in circumstances has arisen and that a consequential change in the orders should follow).
In property matters, prior to making the orders, the Court considers whether the orders sought are just and equitable.
2. Going to Court:This is typically the slowest and most expensive method to resolve disputes. If parties cannot reach agreement or there is a risk to a child or children, it may be appropriate to commence Court proceedings.
Matters are resolved by way of Court Order following a hearing, however parties can continue to negotiate and seek orders by consent at any stage in the process to finalise the matter.
There are pre-action procedures required to be followed prior to commencing Court proceedings, including:
i. The parties will need to make full and frank disclosure of all relevant documents,
ii. The party considering filing an application must invite the other party to participate in dispute resolution, and
iii.The party considering filing an application must provide the other party with a Notice of Intention to Start a Proceeding in which a genuine offer is made to resolve the issues in dispute.
3. Arbitration: Arbitration is an alternative dispute resolution process where parties present arguments and evidence to an independent third party, the arbitrator, who makes a determination. Arbitration is particularly useful when there are highly technical issues or where the parties seek greater confidentiality than in open Court. Arbitration is suitable for property matters only.
4. Parenting Plan: This is an unenforceable agreement between parties, usually drafted by or with the assistance of solicitors. If there is minimal parental conflict or parties require an informal temporary agreement pending Court proceedings, a parenting plan may be appropriate to provide some certainty. Parenting plans are usually fast and simple to draft and do not require Court approval or intervention. A major benefit to parenting plans (particularly in relation to young children) is that you can enter interim plans for a specified period (e.g. 6-12 months).
Not every option to formalise your agreement will be appropriate for your matter! Contact one of our experiences solicitors to provide advice specific to you.
Spousal Maintenance
If a spouse is unable to support themselves, the other party to the marriage may be liable to support that spouse by paying spousal maintenance.
The purpose of maintenance is to adjust for any disparity between the incomes or earning capacities of parties based on their respective needs.
To be successful in a spousal maintenance claim, you must establish:
1. That the spouse has a need for support;
2. The spouse does not have the capacity to meet their own need for support; and
3. That the other party has the capacity to support that spouse financially.
Contact our Family Law team to talk more about how child support affects your Family Law matter!
Child Support
A parent or primary carer of a child is entitled to make an application for payment of child support under the Child Support (Assessment) Act.
You can apply to child support on the Services Australia website or calling the Child Support Enquiry Line.
Contact our Family Law team to talk more about how child support affects your Family Law matter!
Divorce Applications
You can apply for a divorce after the expiration of one year from the date of separation.
You can apply solely (a “sole application”) or jointly with your ex-spouse (a “joint application”). Joint applications are easier and faster to complete.
Sole applications require that your ex-spouse sign an Acknowledgement of Service or be supported by an Affidavit of Service by hand. If the whereabouts of your spouse are unknown, we can assist you with filing an Application with the Court to dispense with the requirement of service or for an order for substituted service on your ex-spouse.
If there is a child or children of the relationship under the age of 18 and you file a joint application for divorce, you are not required to appear at Court. If you file a sole application for divorce and there is a child or children of the relationship under the age of 18, you must attend Court for the divorce hearing.
The family law team at Next Legal & Conveyancing are experienced in assisting clients with applications for divorce and making the process as fast and simple as possible.
The timing for filing your Divorce Application can impact a Property or Financial settlement! Contact one of our experiences solicitors to provide advice appropriate for your matter.
Time Limits
There is no time limit to reach an agreement in parenting matters.
In property matters, parties to a de facto relationship have 2 years from the date of separation to commence an application with the Court. Parties to a marriage have 1 year from the date of divorce to commence an application with the Court. It is therefore often recommended to resolve parenting and financial matters prior to filing for divorce.
If you are out of time to file an application you will need to seek permission from the Court to proceed out of time, and permission can be refused meaning you are unable to make a claim.
Family Law Misconceptions
There are a number of common Family Law misconceptions which our Family Law team can help you avoid:
The Family Law Act 1975 (Cth) was amended in 2002 to allow superannuation to be treated as property so that it forms part of the asset pool available for division on the breakdown of a relationship. The superannuation provisions now apply to both de facto relationships and marriages. The exception are cases in Western Australia as currently superannuation splits are not available for individuals separating from a de facto relationship.
The Court takes a range of factors into account when determining a “just and equitable” property split. Some of the Court’s primary considerations include:
- The length of the relationship;
- Whether there are children of the relationship;
- Both parties’ financial and non-financial contributions during the relationship and post separation;
- The income and employability (income earning capacity) of each party; and
- The future needs of the parties.
The overall split will depend on the facts of the case.
Assets acquired post separation usually form part of the asset pool. Whether or not the asset is included, or your ex-partner receives a share or benefit, will usually depend on a range of factors, however the Court must still address and consider property which belongs to each party as at the date of settlement/hearing rather than at the time of separation. This is an incentive for parties to resolve financial matters soon after separation.
The Court considers a range of factors when determining the living arrangement and the paramount consideration is the “best interests of the child”.
When considering and deciding arrangements that are in the child’s best interests, the Court will consider the following:
1. What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(a) the child; and
(b) each person who has care of the child (whether or not a person has parental responsibility for the child);
2. any views expressed by the child;
3. the developmental, psychological, emotional and cultural needs of the child;
4. the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
5. the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
6. anything else that is relevant to the particular circumstances of the child.
The Court must also consider:
7. any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
8. any family violence order that applies or has applied to the child or a member of the child’s family.
Where there is a risk of the child being harmed or abused, the Court has the power to limit and restrict the time the child spends with the parent who poses that risk.
