Family law

Every family situation is distinctive and Susan will listen to you, provide pragmatic advice, and assist you to reach the best possible result for your personal circumstances.

Susan practices in all facets of family law, including:

• Divorce
• Property settlements
• Spouse maintenance
• Parenting arrangements
• Child support
• Advising on Financial agreements, including pre-nuptial agreements
• De facto and same sex relationships

Divorce

You must be separated from your partner for at least 12 months before you can apply for a divorce. Divorce applications can be made by either party and may be made jointly. The only ground for divorce is irretrievable breakdown of marriage, evidenced by 12 months’ separation.

Property settlements

The financial consequences of separation are a critical factor for any couple to resolve in order to move forward. Property settlements can be finalised at any time after separation and before divorce, and any proceedings for property settlement should be commenced within 12 months of a divorce becoming final.

Numerous factors, including length of the marriage, age and state of health of the parties, financial and non-financial contributions to the assets of the marriage, the parties’ respective earning capacities, and their parental obligations, are taken into consideration in assessing what is a just and equitable result. The Family Law Act and case law provide guidance for advising clients, and each case requires individual analysis.

Susan can provide realistic advice on the likely outcome of a case, and the most appropriate approach to adopt to achieve the best possible result.

Agreements can be negotiated without going to court and can be documented as either Consent Orders filed with the Court or a Binding Financial Agreement.

In many cases where Court proceedings are commenced, property matters are settled at or shortly after the conciliation conference. When parties reach agreement, the matter can be immediately finalised.

Where one party to a marriage does not have the capacity to financially support themselves, and the other party has the ability to support their spouse, the court may make an order for spousal maintenance, usually for a short period to enable the first spouse to complete their education or training, although sometimes for a longer period, depending upon the parties’ circumstances.

An application for spouse maintenance can be made immediately following separation, and must be made within 12 months of the divorce becoming final. Often parties resolve a claim for spouse maintenance by agreeing to a lump sum payment, rather than periodic payments. Susan can provide advice based on your individual situation.

Parenting arrangements

Each parent has shared parental responsibility for their children. Every child has the right to know and have a meaningful relationship with both parents. Susan will help you to ensure arrangements made after separation are in the best interests of the children, and are reasonably practical. Parties can make informal arrangements between themselves or can formalise their agreements as Parenting Plans or Consent Orders.

The Family Law Act uses concepts of “lives with” and “spends time with” in relation to arrangements concerning children, and promotes the concept of children spending equal or substantial and significant time with each parent. It is generally recommended that parties negotiate their own arrangements regarding care of their children.

All parties, with few exceptions, must obtain a certificate from a Family Dispute Resolution Provider, before commencing proceedings seeking orders in relation to their children. The Australian Government has established 65 Family Relationship Centres which provide information, advice and dispute resolution to help people reach agreement on parenting arrangements. To find out more, see: www.familyrelationships.gov.au

If the parties cannot resolve their dispute about care of their children, and litigation is commenced, the Court often orders the parties and children to attend on a clinical psychologist or a psychiatrist for the preparation of a Family Report, to assist the Judge determining the matter.

In particularly difficult matters, the Court may order the appointment of an Independent Children’s Lawyer to act on behalf of and look after the children’s best interests. Susan can assist in negotiating and drafting agreements and advise on the most likely outcome if litigation is being considered.

Child Support

All parents have a responsibility to financially support their children. Almost all parents come under the jurisdiction of the Child Support Agency and the Child Support (Assessment) Act 1989. The Child Support Agency can make an administrative assessment of the child support payable, and will arrange collection of child support where required.

It is possible to apply for “Departure Orders”, departing from the formula assessment in certain circumstances. There are also avenues available to appeal from decisions of the Child Support Agency.

Parties may reach agreement on child support and enter into a Child Support Agreement, which may or may not be registered with the Child Support Agency. There are now two types of agreements:

• Limited Child Support Agreements, which can be ended by either party in certain circumstances; and
• Binding Child Support Agreements, which can only be ended by a replacement agreement or by an order of the Court. Parties who wish to enter into Binding Child Support Agreements must be legally represented and have their respective solicitors sign a certificate attached to the Agreement.

Susan can advise and assist you in relation to all Child Support enquiries.

For more information about child support, see: www.humanservices.gov.au. The website provides a calculator and explains the formula for assessment of child support.

Financial agreements, including pre-nuptial agreements

The Family Law Act provides that individuals who are planning to marry (or live together), or who are married (or living in a domestic relationship) can enter into a Binding Financial Agreement, before marriage/cohabitation (known as pre-nuptial agreements), during marriage/cohabitation, or after divorce/separation, dealing with the division of property and superannuation, and spousal maintenance in the event of separation. A Binding Financial Agreement is a contract between the parties in which they agree to exclude the jurisdiction of the Family Court. Each party must obtain independent legal advice, and the respective lawyers must sign a certificate attached to the agreement, in order for the agreement to be binding.

Binding Financial Agreements entered after separation/divorce reflect the parties’ division of assets and liabilities. Unlike Consent Orders, Binding Financial Agreements do not need to be lodged with the Court, and are not subject to the Court’s approval. Parties may elect to use a Binding Financial Agreement where they do not seek Court approval of their property settlement.

De-Facto and Same-Sex Relationships

The Family Law Act now covers both heterosexual and same-sex relationships. Parties who separated before 1 March 2009, are covered by the Property (Relationships) Act NSW although it is possible to opt in to the Family Law Act regime.  See: Property settlements, Spouse maintenance & Financial agreements.

Family violence

If you have been a victim of family violence, it is important to ensure that you and your children are protected. Protection is available by way of an Apprehended Violence Order through the Local Court. The Local Court can make Orders that:

• order a person not to assault molest or denigrate another person;
• restrain a person from being near your place of residence or place of employment;
• require a person to surrender their firearms, if necessary.

The Family Court can also order injunctions allowing one party the sole use and occupation of the former matrimonial home on an interim or final basis.

A party may be excused from attending compulsory Family Dispute Resolution in relation to children’s issues, if there is Family Violence.

The Family Court takes family violence into account when making a parenting order, as one of the objects of the Court is to ensure the physical and psychological welfare of children.

The Courts offer protective services if you are concerned about your safety whilst at Court.

If you are in immediate danger it is recommended that you contact the police, who will be able to provide you with further information, and may obtain an Apprehended Violence Order on your behalf.

If you would like to talk to Susan Parker about family law, please email her on s.parker@parkerlaw.com.au or call 9283 1818.