FDR is a kind of mediation that helps families who are separating to come to their own agreements in relation to the care of their children. During FDR, families will talk about the problems with respect to their children and will be encouraged to think about different options with the help of a neutral and accredited FDR practitioner. The main goal of FDR is to help families make a plan for their children’s future.
Child-focused FDR is when the parents mediate with a focus on how their agreements will affect their children. The FDR practitioner will help the parents understand how their separation and disputes can harm their children in the short and long term. The FDR practitioner is not neutral when it comes to advocating for the interests of the children. Child-focused FDR has some goals:
Child-inclusive FDR is often described as “finding the child’s voice in the presence of the child.” It is similar to child-focused FDR but also involves a child specialist talking to the child and assessing their experience of the separation and their relationship with each parent. Two professionals are involved: the FDR practitioner and a specially trained child consultant. Child-inclusive FDR has some goals:
FDR is important for helping families come to their own agreements and making sure that the children’s needs are taken into account.
This guide provides an introduction to family law parenting orders in Australia. Parenting orders refer to the legal process of obtaining orders from the Federal Circuit and Family Court of Australia (“the Court”) to determine arrangements for children, including living arrangements. These orders are separate from obtaining a divorce or a family law property settlement, although they are often done at the same time.
The Court has broad powers to make orders regarding living arrangements and care, including:
To be eligible to apply for parenting orders, the child, a parent, or a party to the proceedings must be present or ordinarily resident in Australia or an Australian citizen. The Court may decline to exercise jurisdiction if proceedings are pending in another country.
It is mandatory for parents to attend Family Dispute Resolution (FDR) and attempt to resolve any child-related disputes before initiating legal proceedings, unless an exception applies. Exceptions include serious allegations of violence or abuse, urgency, or allegations of serious risk to the child. Failure to attend FDR and obtain a certificate pursuant to s60I of the Family Law Act 1975 (Cth) may result in the Court refusing to allow the application to be filed. If an exception is obtained but later found to have little substance, this can be viewed negatively by the Court.
The best interests of the child are the paramount consideration when making parenting orders. The Court aims to facilitate the child having the benefit of a meaningful relationship with each of their parents while protecting them from physical or psychological harm. The application of the law will depend on the specific circumstances of each case.
If you want to have more control over your finances during a relationship or in case of a breakdown, a binding financial agreement (BFA) may be worth considering. Commonly known as a “prenup,” this legal document can change the standard process for dividing property and assets in a legal dispute.
There are different reasons why a financial agreement might be necessary. For instance, a BFA could help both parties to protect specific assets from future claims by the other party, especially if they have children from previous relationships. This type of agreement is generally enforced to safeguard the future benefit of any children in previous marriages and can be made in conjunction with an agreement under the Succession Act. Alternatively, a financial agreement may be used to enable one party to protect certain assets from future claims by the other party. Additionally, after separation, a BFA can operate as a release from future spousal maintenance as long as there is a satisfactory property settlement.
Although there are other situations where a financial agreement may be appropriate, court proceedings via an application for consent orders may be more suitable if the parties are separated, as it can simplify enforcement if needed.
It is essential to keep in mind some caveats if you are considering a financial agreement. First, a BFA is not required to be fair, but a property settlement ordered by the court has to be ‘just and equitable.’ Second, a financial agreement cannot be set aside on the grounds of hardship if the parties have no children together. Third, a financial agreement of the prenuptial kind should be weighed against the option of not having one at all, which can allow for freedom to negotiate a settlement if necessary.
Binding financial agreements are beneficial for the preservation of assets, but they involve extensive considerations that must be evaluated to assess their appropriateness in your circumstances. A lawyer can advise you of the potential risks and terms that could be included to protect your financial interests.
The legal community in New South Wales is celebrating the introduction of new family law procedures in 2023. Starting in January 2023, individuals seeking to initiate family law proceedings in circuit locations will be able to select their initial return dates. This can be completed online through the Commonwealth Courts Portal, eliminating the need for in-person visits.
The Circuit lists are especially important for those living in rural and remote areas of the country, as they provide access to legal services and the justice system. With this change, people living in these areas will have the same opportunities as those in larger cities to manage their cases and access the courts. This is great news for lawyers who work in family law and their clients alike, and it represents a significant step forward in creating a more equitable legal system.
On both sides, emotionally and financially, it can be a difficult road.
A common question asked to a lawyer during parenting proceedings is … ‘Do I need to pay child support, and if so, how much?”
In basic terms it’s an ongoing, periodic payment (ie. weekly) made by one parent to the other for the financial care and support of a child (or parent, caregiver guardian or state) following the end of a marriage or other relationship. It is irrespective of sex, so a mother can be required to pay support to a father, just as a father can be required to pay a mother.
In Australia it is governed under the Child Support (Assessment) Act 1989. The Department of Human Services Child Support program (www.humanservices.gov.au/individuals/child-support) provides online information to help parents manage their financial child support responsibilities. It was formerly known as the ‘Child Support Agency’ and the phrase is still used by some people today out of habit. The agency no longer exists, instead becoming one of the Master Programs of the Australian Government Department of Human Services.
A parent or carer of a child can apply to the Department of Human Services (child support) for an assessment of how much support should be paid. An application can be made by calling 131 272 or online on the above website.
It is an important principle of Australian Law that all parents have a legal duty to financially support their children (at least until they are 18). However, it is not compulsory to apply to Child Support for an assessment. Families that do not receive Family Tax Benefit (FTB) A from Centrelink are free to work out between themselves how much child support should be paid by one parent to the other. If a parent or carer applies for more than the minimum FTB A, they will be required to take reasonable action to obtain child support from the other parent. (Note exemptions can be granted).
You can use an online estimator to calculate an estimate of your payments, or you may have Child Support do this for you. The amount to be paid depends on the taxable income of both parents as well as the amount of time each parent spends with the child. Child support assesses the amount payable using a mathematical formula set out in the Child Support (Assessment) Act 1989.
There are various ways to pay child support.
Self-management – means you and your partner manage the payments yourselves. You decide how much to pay, when and how to make the payments.
Private collection – this is where a child support assessment, agreement or court order sets the amount. You and the other parent work out how and when to pay. The agency can collect overdue payments for you for up to 3 months (9 months in exceptional circumstances).
Child Support Assessments – if you choose not to self-manage, you can apply for a child support assessment. You must meet certain criteria first. The process involves completing an Application for a Child Support Assessment. Your financial information will be fed through an assessment calculator and you will be advised as to the amount you must pay. The agency can collect the money on your behalf meaning you don’t have to deal directly with your former partner.
You must contact the child support agency and request an updated assessment.
A child support assessment will continue until there is a change of circumstances that causes it to end called ‘a terminating event’. Some of these include if the child turns 18 (unless still in secondary education and an extension may be granted), marries, dies or if the parties enter into a private Binding Child Support Agreement.
Sharon Payne Family Lawyers specialise in all areas of family law, including de facto relationships, same-sex relationships, inheritances, property, parenting and divorce. Should you have any enquires, or would like further advice, please do not hesitate to contact a member of our team on Ph:8626 2670 who will be more than happy to assist.
Publication by Kim Pennings Dip Law LPAB Lawyer and content writer for
Call (02) 8626 2670 to arrange your initial consultation
What are your rights?
During a married or de facto relationship, parties may at some stage, receive the benefit of an inheritance. In many cases, this can be a significant financial benefit to the parties. So what happens when the relationship ends?
Parties to a property settlement often have misconceptions about how an inheritance should be distributed after separation. Many believe they should be treated separately and not fall into the asset pool of the parties. Previous cases have determined that timing of receipt of the inheritance often plays a large part in entitlement and distribution.
Inheritances received PRIOR to the commencement of the relationship.
If received at the commencement of the relationship or prior, it will be treated as an initial contribution by the party receiving the inheritance. It’s not separated from the asset pool at the end and given back to the original party in addition to the entitlements to the balance of the asset pool. It will however, be taken into account, and may warrant an adjustment of assets in favour of the party who received the inheritance. However, in some cases the inheritance can be diminished by subsequent contributions during the relationship. This is especially the case in a long relationship where some inheritances may ultimately have very little impact on a party’s final entitlements. It may be that no adjustment is warranted.
DURING the relationship
If an inheritance is received during the relationship and is applied towards the improvement or purchase of a former matrimonial home, it is usually classified as a financial contribution to the joint asset pool by the receiving party.
LATE in the relationship or after separation
Where an inheritance is received late or after separation, the court might deal with it separately from other assets. Two asset pools may be created and split at different percentages. For example, the pool containing the inheritance may be determined to be a 100% contribution by the person receiving the inheritance. The contributor to the second pool of assets containing all other assets, might be determined in a different percentage.
In the case of Bonnici the court determined the major deciding factor was the timing of receipt of the inheritance, and the impact it would have on the size and distribution of the asset pool.
In this case the inheritance was received late by the husband and the parties had no other assets available for distribution other than the inheritance. The court however, was satisfied the wife had made the greater contribution as parent and homemaker and therefore, it would be just and equitable for her to receive an adjustment for those contributions from the inheritance of the husband. Had the asset pool in this case been larger, with significant funds available for distribution to the wife from the assets, then a recently acquired inheritance would more than likely be treated as an entitlement of the husband.
Of course, every case is determined on their own merits and decisions and exceptions are usually made on a case by case basis. In the case of Heath, a wife’s “efforts” towards the care of the spouse’s elderly parents were deemed contributions towards the husband’s inheritance. In De Angelis improvements made by the husband to the maintenance and improvement of properties held by the wife’s mother and aunt, were deemed part of the inheritance and treated as a contribution under Section 79 of theFamily Law Act.
An inheritance bequeathed after separation, however not yet received, may still be classified as a financial resource of that party. This is because the funds are not yet available for distribution but their arrival for the benefit of the receiving party is imminent and therefore that party will have the benefit of using those funds to meet the costs of their future needs, whereas the non-receiving party does not. The value of this benefit can often be determined and included when considering each party’s entitlements to the division of the asset pool available and may increase the non-receiving party’s entitlements.
Sharon Payne Family Lawyers specialise in all areas of family law, including de facto relationships, same-sex relationships, inheritances, property, parenting and divorce. Should you have any inquiries, or would like further advice, please do not hesitate to contact a member of our team on Ph: 8626 2670 who will be more than happy to assist.
Social media and family law can be a dangerous mix, and if used incorrectly, can impact many areas of your case including parenting, property, spousal maintenance and child support. Like it or not, social media plays a huge role in today’s society, and with that, it is no surprise that the use of social media as evidence in family law proceedings is becoming more and more prevalent.
For many people, social media is an outlet to express one’s thoughts, feelings and experiences, both negative and positive. However, it is important to remember that anything you post on social media may be used as evidence against you in Court. Although many examples of improper social media use are obvious, some may not be so obvious and can play a big role in the outcome of your case.
Some examples of how your social media posts can impact your family law proceedings include:
In the case of Longsdorf v Granger, the father used evidence from Facebook to prove a relationship between the mother and a new partner. Despite the mother stating that “what is on Facebook is not real”, the judge disagreed and made the comment that the cross-examination of the mother in relation to the Facebook comments “caused more embarrassment and a look of dread and being caught out than I have ever seen on a witness’ face”.
It is also important to note that Section 121 of the Family Law Act prohibits the publication, including by electronic means, of information relating to family law proceedings, which identifies any involved parties. If convicted of this offence, you may face up to 12 months imprisonment. So, a simple status update venting that your ex-spouse has taken you to court for custody of your children can land you in hot water with the law.
Remember – DON’T post, tweet, share or send anything online or by electronic means that you wouldn’t want the judge to read. It sounds simple, but when feelings of stress, anger, sadness and confusion are present, the mix between social media and family law can quickly become dangerous.
Sharon Payne Family Lawyers specialise in all areas of family law, including property, parenting and divorce. If you feel you need advice and are concerned about your social media footprint and its possible impact on your potential matter please do not hesitate to contact a member of our team on Ph: 8626 2670 who will be more than happy to assist.
Marriage in Australia prior to 2004 was covered by the Marriage Act 1961 (Cth) which defined marriage as a union between two people. The law was amended in 2004 to narrow the definition where marriage was between a man and a woman. Same-sex de factos received further clarification and recognition via the same-sex law reform package passed through Parliament in November 2008.
On 9 December 2017 The Marriage Amendment (Definition and Religious Freedoms) Act 2017 legalised same-sex marriage in Australia by amending the Marriage Act 1961. This legalised same-sex marriage after an unprecedented national postal vote survey of the Australian people. Between 2004 and 2017 there had been 22 unsuccessful attempts in Federal Parliament to legalise same-sex marriage. This was therefore, a landmark decision as it redefined marriage. What does this mean in simple terms – under Australian law, the right to marry is no longer determined by sex or gender.
Same-sex couples married in either Australia or overseas, will be recognized as married for the purposes of the Family Law Act 1975 (Cth) and treated equally to other married couples.
What changes?
The 2017 laws mean same-sex couples and their families are now able to receive entitlements and benefits previously not available to them including (but not limited to):
What’s the difference between de-facto and married?
De facto – According to the Family Law Act you are in a de facto relationship with another person if you are not legally married to each other, you are not related by family and you have a relationship as a couple living together on a genuine domestic basis.
Married – According to the Marriage Amendment (Definition and Religious Freedoms) Act 2017 marriage is the union of two people to the exclusion of all others, voluntarily entered into for life.
You can therefore be in a same-sex de facto relationship and same-sex married relationship. However, the laws are slightly different
Married overseas? Not a problem.
From 9 December 2017, the Marriage Act recognises existing and future same-sex marriages solemnised overseas under the law of a foreign country. Same-sex marriages solemnised in Australia by a diplomatic or consular officer under the law of a foreign country before 9 December 2017 are also recognised. A couple whose foreign same-sex marriage is recognised in Australia cannot marry each other again in Australia, unless there is doubt as to the validity of the foreign marriage. It is, however, possible for couples to hold another type of ceremony, such as a confirmation of vows or a recommitment ceremony.
Sharon Payne Family Lawyers specialise in all areas of family law, including de facto relationships, same-sex relationships, property, parenting and divorce. Should you have any enquires, or would like further advice, please do not hesitate to contact a member of our team on Ph: 8626 2670 who will be more than happy to assist.
Please note – Laws and regulations in Western Australia are slightly different.
Links of interest
https://www.ag.gov.au/FamiliesAndMarriage/Families/SuperSplitting
http://legalanswers.sl.nsw.gov.au/hot-topics-82-families/legal-status-parenthood
https://www.ag.gov.au/marriageequality#requirements
The Attorney-General Christian Porter has announced that the Family Court and Federal Circuit Court will be merging together in 2019 to form a new court; The Federal Circuit and Family Court of Australia (FCFCA). This is part of a larger review of the Courts’ system and the Government is set to receive a full report from The Australian Law Reform Commission by March 2019 on the matter.
These efforts are designed to alleviate the pressure that the Family Court and Federal Circuit Court is currently under and to speed up the process of settling family disputes. While the number of final hearings scheduled each year has remained fairly static, the duration of the matters has steadily increased. Not only that, but in some cases, matters will have to be transferred between the two Courts due to administrative and jurisdictional conflicts. This requires families to restart their application in a new Court and further delays a resolution.
It is envisaged that with a singular Court, both applications and appeals to the Court should be a more streamlined process. A new division (The Family Law Appeal Division) will also be set up to handle all appeals (both family and general). A merger of the two Courts would appear to some, to be an obvious solution given that their jurisdictions often overlap. However, critics of the merger claim that the merger will not fix the issues within The Family Court and argue that the backlog is caused by funding issues and delays in appointing judges to the bench.
As more information becomes available, we at Sharon Payne Family Lawyers will endeavor to provide further details.
For further information please visit the following sources:
In certain circumstances where the other parent of your child withholds your child from you, it may be necessary to seek an urgent “recovery order” from the Court. A recovery order is an order which requires that a child be returned to the appropriate person/s. A court may make recovery orders if your child has been taken from you and has not been returned to your care. A recovery order can direct police officers to take appropriate action to find and recover the child, including the stopping and searching of vehicles. In addition a recovery order can prohibit the person from again removing the child. If a child is removed again, a recovery order can authorise the arrest (without warrant) of the person who again removes the child.
Who can apply for a recovery order?
How do I apply?
An application for a recovery order should be filed in the Federal Circuit Court unless you have a current parenting case in the Family Court, in which case your application should be filed there. If you do not already have parenting orders then it is advisable to apply for a parenting order at the same time.
You will also need to file an affidavit to support your application. We can advise you on how best to draft your affidavit depending on the circumstances of your case. You will also need to compile as much information as you can on your child’s whereabouts to assist the police with the return of the child.
What happens at court?
In deciding whether to make a recovery order, the court must regard the best interests of the child as paramount. The Court has discretion as to whether to make a recovery order and it is important to ensure that you have sufficient and properly prepared evidence to prove that a recovery order is necessary. The Court may either make an order which requires a person to return the child to you or authorise other persons (such as a police officer) to take the appropriate action to recover the child for you.
Forms:
The Australian Federal Police will only recover the child in exceptional circumstances and you may need to be close by to receive the child. This means that you may have to travel to collect your child when he/she is recovered.